text:
Downton v. Yaeger Milling Company/Opinion of the Court

A grain of wheat may be described generally as follows: It consists of a pellicle or outside covering known as bran, an inner envelop consisting of cells and their contents of gluten and phosphates, the most nutritious portion of the berry, and an interior white mass composed mainly of starch and albuminoid matter, extending to the heart of the berry. At one end of the berry, under an irregularly curved surface-layer of bran, technically called the shield, is the embryo, or germ. The germ is a yellow, waxy substance, and the bran is consistent and tough. It has always been the aim of good milling to separate as completely as possible the bran and germ from the other contents of the berry, because they not only gave color to the flour, but rendered it more liable to sour. The main purpose of the improvement described in appellant's letters patent was to accomplish this result by removing the bran and germ from the coarse middlings, leaving only those parts of the grain from which pure white flour could be produced. The improvement consisted in a process, and did not cover the several devices by which the process was carried on. The process was as follows: Coarse middlings, from which the fluffy matter had been eliminated by a well-known contrivance known as a purifier, were passed between one or more sets of rolls, which reduced the large middlings to a greater degree of fineness, but flattened out the tough and waxy germs and bran. After the middlings, with the intermixed germs and bran particles, had been passed between the rolls, they were carried to a bolting-cloth. This allowed the comminuted middlings to pass through its meshes, whence they were carried to the stones, 'to be reground as usual,' but the germs and bran particles having been flattened, and their surfaces enlarged, by the rolls, could not get through the bolting-cloth, and were carried to the end of the bolt, and then run off into suitable receptacles. It will be observed that all the separate parts of this process are old. The use of purifiers on middlings to take out the fluffy particles, the use of rolls to comminute middlings, the use of bolthing-cloths to separate the bran and germs from the flour, and the use of stones to regrind middlings, all long antedate the patent of the appellant. The only field left for invention, therefore, was either a new order in which the different parts of the process were to be applied, or some new method of rsing some one or more of the devices by which the process was accomplished, or both these combines, so as to produce some new product, or some old product in a cheaper or otherwise more advantageous method. It is claimed for the appellant that his invention consists 'in interjecting in the old modes, after the purifier, a pair of smooth rolls of equal diameter, and running at equal speed, and then rebolting the product, and regrinding the middlings' which pass through the bolting-cloth.

We are to inquire whether the defense relied on in this case, that the invention claimed as his own by the appellant had been described in a printed publication before his invention thereof, had been made out.

By section 24 of the act of 1870 it was provided that any person who had invented any new and useful art, machine, manufacture, or composition of matter not known or used by others in this country, 'and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof,' might obtain a patent therefor.

In construing the words 'described in any printed publication in this or any foreign country,' as they were used in reference to the same subject in section 7 of the act of 1836, (5 St. 117,) this court, in the case of Seymour v. Osborne, 11 Wall. 516, said:

'Patented inventions cannot be superseded by the mere     introduction of a foreign publication of the kind, unless the      description and drawings contain and exhibit a substantial      representation of the patented improvement in such full,      clear, and exact terms as to enable any person skilled in the      art or science to which it appertains to make, construct, and      practice the invention as they would be enabled to do if the      information was derived from a prior patent.'

So in Cohn v. U.S.C.orset Co. 93 U.S. 366, Mr. Justice STRONG, speaking for the court, said:

'It must be admitted that unless the earlier printed and     published description does exhibit the later patented      invention in such a full and intelligible manner as to enable      persons skilled in the art to which the invention is related      to comprehend it without assistance from the patent, or to      make it, or repeat the process claimed, it is insufficient to      invalidate the patent.'

Applying strictly the rule thus laid down, we are of opinion that the defense of prior publication has been made out.

After a careful consideration of the evidence in the record, we are forced to the conclusion that the method of making flour set forth in the specification of appellant's patent was fully and clearly described in a printed publication before the invention thereof by the appellant, and that his patent therefor is consequently void. We refer to a German work put in evidence by the defendant, entitled Die Mahlfabrication, by Frederick Kick, published at Leipsic in 1871. We take the following extracts from a translation of this book. 'Part IV., Rough Grinding with Roll Mills:'

'In the successive process of grit or high milling, the grain     is crushed in its first passage through between the stones;      that is, broken into parts of different sizes-groats.

'In the disintegrating process, which follows next, flour,     dust, middlings, partings, and breakings are obtained. With     each of these substances, classified according to size,      particles of the hull of the same size are mixed, or still      adhere to the particles of the grist. By this method of     crushing with stones a partial splitting up of the hull is      unavoidable, and the flour obtained from such rough grinding      is mixed with particles of bran, even from decorticated      wheat, and is, therefore, discolored.

'If one were able wholly to prevent the disintegrating of the     particles of the hull, the flour produced by rough grinding      would be white.

'This, however, is never fully accomplished; but there is, on     the one hand, a way to diminish the friability of the hull-by      moistening; on the other hand, many sorts of wheat, under      similar treatment, exhibit this difficulty to a less extent,      and therefore produce white flour, viz., soft wheat; or,      finally, machines are employed which, in the process of rough      grinding, break up the hull to a less degree, as is the case      with roll mills.

'The roll mills operate partly by crushing and partly by     grinding. They produce breakings, which then pass to the     stones for grinding into flour. The surface of the rolls are     smoother than those of the stones, and the hull is,      therefore, less torn. Of course the disintegrating by means     of rolls is not appropriate for every kind of wheat. If soft,     mild wheat is passed through the rolls, it leaves the rolls      in a flat, compressed condition; whereas, with the same      treatment, hard (Hungarian) wheat is reduced to fragments,      and so regularly broken.

'The action of the rolls evidently depends upon their     relative position, (their distance apart;) it also depends on      the condition of their surfaces, (whether smooth or      chaneled;) and then again on their relative motion, viz.,      whether both rolls have like or different velocities.

'If the rolls are so far apart that the wheat sustains only a     moderate pressure, and if they are smooth, then only a      breaking of the grain occurs in the direction of the crease. The berry is thereby divided into two longitudinal halves, of which many     still cohere at the back, thus resembling an open book.

'In case the rolls are closer together, then, with soft     wheat, a flattening takes place, and the middlings obtained      therefrom are very clean or free from bran. Hard wheat is     much more considerably reduced, and a proper breaking is      effected. * *  * Rolls with smooth surfaces operate more by      compression; those with fluted surfaces more in a cracking or      breaking manner. In order to give the rolls at the same time     a triturating effect, they are made to revolve with different      velocities.

'Two, three pairs of rolls may be arranged one above another. By the first pair 'coarse breakings' are produced; by the     second, 'first breakings,' etc. Hence, the application of      three pairs of rolls permits a gradual disintegration during      a single passage of the grain through the roll mill. * *  *      There are (as we shall explain hereafter) certain varieties      of middlings in which the but partially broken germs      constitute thirty or forty per cent. of the entire mass, and     which, being yellow granules, give to the entire mass of      grit, with which they are intermixed, a yellowish appearance.

'Now, if this kind of middlings is passed through properly     adjusted rolls, the tough germs are only flattened, while the      other granules are broken and can be easily separated by      sifting. Instead of a pair of rolls, a single roll operating     against an adjustable segment of stone or iron may be used. By this latter method the substance ground is much more     subjected to trituration. The particles already reduced     continue to rub against each other and against the working      parts of the machine until they finally pass out, in      consequence whereof the advantages above mentioned of the      roll mills are greatly neutralized.'

We have, in this publication, an accurate description of the process covered by appellant's patent.

We have the rolls used for the identical purpose therein set forth; namely, to reduce the middlings and to flatten out the germs, so that they can be separated by bolting or sifting, thus preparing the middlings to be again ground and reduced to middlings flour.

Appellant insists, however, that the process described by Kick is not applied to purified middlings, and therefore differs from his.

But it appears, from the well-known state of the art, that ever since purifiers were invented it has been the practice to purify middlings before reducing them, so that whenever the grinding of middlings is mentioned, graded and purified middlings are understood. The process of purifying, in case of gradual reduction, is as elementary as bolting, and follows every reduction of the material. When, therefore, Kick speaks of passing middlings through the rolls for another reduction, he must be understood to mean purified middlings. But the evidence in the record clearly shows that the action of the rolls, and their effect upon the product of the mill, would be the same whether purified or unpurified middlings, or even wheat, were used.

Appellant further insists that his process differs from that described by Kick, because the rolls mentioned in the latter run with unequal speed. This contention is founded on a misapprehension. The extract from Kick's work expressly says that 'the action of the rolls evidently depends * *  * on their relative motion, viz., whether both rolls have like or different velocities.' Rolls, therefore, with the same or different velocities could be used in the process described by Kick. His method included both.

We are also of opinion that the process which appellant claims as his invention was also clearly described as early as the year 1847 in a publication called Anglo-American and Swiss Science Milling, by Christian Wilhelm Fritzsch, published at Leipsic by Gustav Brauns. This description of the process of manufacturing flour is illustrated by drawings, which make it perfectly clear that the different parts of the process of the appellant were anticipated and publicly printed more than 25 years before the appellant, according to his own story, conceived the improvement described in his patent.

'The advantages to be derived from the roll mill consist     chiefly in this: that in operating them a considerable saving      of power is achieved as compared with stone mills. Furthermore, the flour     produced is of excellent quality, both in whiteness and      fineness.

'Inasmuch as the wheat is ground in a dry state, the flour     produced is especially adapted, with respect to durability,      for transportation and storing.

'The principle on which all said improvements turn, centers     wholly and exclusively in a desire to effect the grinding of      wheat so that not only the largest possible quantity of good      middlings flour is obtained, but also that this may be      separated from the hull or bran in its original purity; or,      to express it in plainer words, to obtain the mealy interior      substance without admixture of any part of the hull.'

Then follows a description of the mill by which the reduction of the wheat to coarse middlings is effected:

'The rough-ground product discharged from the mill (in which,     besides middlings, flour has been produced) is thereupon most      conveniently carried into the upper stories of the mill      building by means of an elevator, and is then first      transferred to a flour cylinder for the purpose of separating      the flour. The remainder then goes upon a grit cylinder,     where the material is assorted and separated from the hull in      four different grades of middlings. The middlings thus     obtained are thereupon likewise eleaned in the manner already      described, and prepared for flouring.

'The grinding of midelings takes place by a manipulation     varying but little from the process of rough grinding, by      means of a flouring mill, which, together with the crushing      mill above mentioned, constitutes a set or run. We see this     flouring mill upon our plate, (fig. 8.) Its construction is      in the main like that of the other, only the difference that      the upper pairs of rolls are not fluted, like those in figure      7, but have smooth turned surfaces, and consequently no under      layers, (wedges.) This under layer (wedge) is only used with      the under pair of rolls, which are finely fluted.

'The middlings ready for grinding are here also put into the     hopper, as shown, and carried to the first, second, and third      pairs of rolls, in the manner described. The upper two pairs     of rolls crush and triturate the middlings to the utmost      degree; therefore, it remains for the last lower pair of rolls to shake up      the flour.

'This product, thus finely ground, is now transferred to the     cylinder bolt for separating the flour. The bran-like surplus     is carried with the bolts to a stone mill, to be completely      ground out.

'The grinding of middlings in the manner above described has     many advantages in its favor, especially in this: that the      hull particles still contained in the middlings are, by this      process, not any longer decomposed or torn up, whereby the      possibility of transfer of them into the flour is avoided.'

In this description we have the purifying of the middlings by a purifier, which is shown in the cut, then the passing of them between two pairs of smooth revolving rolls of equal diameter, which are in all respects like the rolls described in the specification of appellant's patent, and which necessarily perform the same function. Then the disintegration, or shaking up, as it is called, of the ribbons or sheets of the material which come from the second pair of rolls, by passing them through the third pair, which are fluted, but are not allowed to touch each other, and then their transfer to the bolting cylinder, by which the flour is separated from the bran and germs.

The only difference between this process and that described in appellant's patent is that the last two sets of rolls but one, mentioned in the process described by Fritzsch, completely reduce the middlings to flour, while in the process under appellant's patent the middlings, after passing between the rolls, being separated from the germs and bran, are again ground between stones; but the great fature of appellant's process, the flattening of the germs and pellicle, by passing the middlings between rolls, is found in the method described by Fritzsch.

The advantages from the process described by Fritzsch are identical with those claimed for the process described in appellant's patent: First, a saving of power; second, the hull of the wheat (and necessarily the germ) is not disintegrated and torn up in passing between the rolls as it would be between the ordinary millstones, and can, therefore, be eliminated by the bolt; and, third, the yield of high-grade flour is increased, and the flour produced is of excellent quality, both in whiteness and fineness, and fitness for transportation and storing.

The printed publications relied on to defeat the appellant's patent describe the process covered thereby so fully and clearly as to enable persons skilled in the art to which the invention relates to carry on the process. In fact, the description of the process in the printed publications is, to say the least, quite as precise, clear, and intelligible as in the specification and claim of the patent.

The earliest date at which the appellant claims to have invented his improvement is stated by him as in 1872 or 1873. These publications, therefore, which antedate his invention,-one by at least one year, and the other by 25 years,-are fatal to the validity of the patent.

The decree of the circuit court, which dismissed the bill, must therefore be affirmed; and it is so ordered.

This case was decided at the October term, 1882, but owing to     the inability of the clerk to furnish a corrected copy, its      publication was delayed until this number.


text: Talk:Downton v. Yaeger Milling Company/Opinion of the Court

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text:
Gross v. United States Mortgage Company

Benjamin Lombard negotiated with the United States Mortgage Company-a corporation of the state of New York, having its principal office and place of business in the city of New York-a loan of $50,000 in gold coin, to be used in the erection of buildings upon certain unimproved lots in the city of Chicago, of which he was the owner in fee. To secure the payment of that sum, with interest at the rate of 9 per cent. per annum, payable semi-annually in gold coin, he executed-his wife joining him August 22, 1872, to that company, a mortgage upon the said premises, covenanting therein to pay the debt and interest; that the premises were clear of all incumbrances; that he would warrant and defend the same, suffering no impairment of the mortgage security; and that the mortgage should stand as security for any money paid for taxes or insurance. The mortgage provided that, if default was made in the payment of any interest installment, or there was a failure to pay the taxes or assessments on the premises, or keep any other covenant contained in the mortgage, that the whole of the debt should become at once due at the option of the mortgage company, with the right in the latter to sell the property to the highest bidder after 30 days' advertisement in some paper published in Chicago. The mortgage also contained this clause:

'It is understood and agreed that this mortgage is to be subject to the right of the city to take so much of said lots as shall be necessary for the opening of and extension of Dearborn street, being 36 feet, more or less, off the west end of said premises; in which event any benefit which may accrue to the said party of the first part herein may be paid by the city to said party of the first part direct.'

The mortgage, upon the day of its execution, was filed and recorded in the proper office.

On the tenth day of December, 1872, Lombard sold and conveyed with warranty the whole of the mortgaged premises, together with the buildings which had been erected thereon with the money borrowed from the United States Mortgage Company, to the National Life Insurance Company of Chicago, of which he was president and a principal stockholder. That conveyance was made expressly subject to the before-mentioned mortgage. The consideration was $100,173, a part of which was in the assumption of the debt due to the United States Mortgage Company. In part payment also of the purchase money, the insurance company executed and delivered to Lombard its promissory note for $12,273, drawn to its own order and by it indorsed in blank, payable three years after date, with interest payable semi-annually at the rate of 10 per cent. per annum. To secure the payment of the note, the insurance company, on the same day, executed and delivered to one J. L. Lombard, as trustee, a trust deed, with covenants of warranty, conveying the whole of said premises. That deed was duly recorded. Of that note and trust deed Gross subsequently became the owner, the note coming into his possession with the indorsement only of the insurance company. On or about March 17, 1873, by proper legal proceedings, 35 feet off the west end of said lots were condemned by the city for the purposes of a street. The sum of $10,952.73 was awarded as compensation for the ground so taken, and $15,897.84 were afterwards assessed as the value of the benefits to the remaining portion of the premises not taken for the purposes of the street. Benjamin Lombard made default in the payment of interest due, on and after October 1, 1873, and failed to pay any taxes or assessments on the property after 1872. On the first day of January, 1874, the mortgage company elected to declare the whole debt due. On or about June 1, 1874, the insurance company was duly adjudged a bankrupt, and an assignee thereof was appointed. Lombard was also declared a bankrupt. Neither he nor the insurance company left any known assets to meet their obligations.

By an act of the general assembly of Illinois, in force July 1, 1875, entitled 'An act to enable corporations in other states and countries to lend money in Illinois, and to enforce their securities and to acquire title to real estate as security,' it was declared, among other things:

'That any corporation formed under the laws of any other state or county, and authorized by its charter to invest or loan money, may invest or loan money in this state. And any such corporation that may have invested or lent money, as aforesaid, may have the same rights and powers for the recovery thereof, subject to the same penalties for usury, as private persons, citizens of this state; and when a sale is made under any judgment, decree, or power in a mortgage or deed, such corporation may purchase, in its corporate name, the property offered for sale, and become vested with the title whereever a natural person might do so in like cases: provided, however, that all real estate so purchased by any such corporation, in satisfaction of any such liability or indebtedness, shall be offered at public auction, at least once every year, at the door of the court-house of the county wherein the same may be situated, or on the premises so to be sold; * * * and said real estate shall be sold whenever the price offered for it is not less than the claim of such corporation, including all interest, cost, and other expenses: and provided further, that in case such corporation shall not, within such period of five years, sell such lands, either at public or private sale, as aforesaid, it shall be the duty of the state's attorney to proceed by information, in the name of the people of the state of Illinois, against such corporation, in the circuit court of the county within which such land, so neglected to be sold, shall be situated, and such court shall have jurisdiction to hear and determine the fact, and to order the sale of such land or real estate, at such time and place, subject to such rules as the court shall establish,' etc.

For the purpose of settling several conflicting claims in reference to this property, the assignee in bankrutcy of the insurance company brought this suit in the superior court of Cook county, Illinois, making the United States Mortgage Company, Gross, and others defendants.

The principal questions in dispute between Gross and the mortgage company were: (1) Whether the latter acquired any valid interest or lien upon the premises as against Gross; and the court of original jurisdiction held that it did. (2) Whether Gross, as the owner and holder of the note for $12,273, was entitled to receive the sum awarded as damages for that part of the property taken by the city, or whether the mortgage company was entitled to it by reason of the terms of the mortgage. That question was ruled in favor of Gross.

Upon appeal to the highest court of Illinois the judgment of the inferior state court was reversed and set aside, and the cause remanded 'for such other and further proceedings as unto law and justice shall appertain, with directions to the superior court to enter a decree giving to appellants [the mortgage company] exclusively the amount found against the city as damages, and to Gross no part thereof.' It was further adjudged that the mortgage company recover its costs. From that decree this writ of error has been prosecuted.

''Thos. S. McClelland'', for plaintiff in error.

[Argument of Counsel from pages 481-484 intentionally omitted]

Wirt Dexter, for defendant in error.

HARLAN, J.

title: Gross v. United States Mortgage Company


text: Talk:Gross v. United States Mortgage Company


text:
Gross v. United States Mortgage Company/Opinion of the Court

The first point to be considered relates to the jurisdiction of this court. In behalf of the defendant in error it is insisted that it does not appear from the record that the decision of the supreme court of Illinois was adverse to any asserted right under the constitution, laws, or treaties of the United States, nor that the judgment or decree complained of could not have been passed without the determination of any such federal question. Dugger v. Bocock, 104 U.S. 603; Murdock v. City of Memphis, 20 Wall. 590. This proposition depends upon the inquiry whether the opinion of the state court, which is made part of the transcript, can be examined for the purpose of ascertaining the grounds upon which that court based its final decree.

In Gibson v. Chouteau, 8 Wall. 317; Rector v. Ashley, 6 Wall. 142; and Williams v. Norris, 12 Wheat. 117, it was ruled that the opinion of the state court constituted no part of the record, for the purpose of determining whether this court will re-examine the final judgment or decree. And in Parmelee v. Lawrence, 11 Wall. 38,-where the question arose as to the effect to be given to the certificate of the chief justice of the state court, showing that a federal question was raised and decided adversely to the party who brought the case here for review,-it was said: 'If this court should entertain jurisdiction upon a certificate alone, in the absence of any evidence of the question in the record, then the supreme court of the state can give the jurisdiction in every case where the question is made by counsel in argument.' To the same effect are Lawler v. Walker, 14 How. 149, and Railroad v. Rock, 4 Wall. 180. But in Murdock v. City of Memphis, 20 Wall. 633, the subject was again under consideration, by reason of the omission from the act of 1867 of that provision in the twenty-fifth section of the act of 1789 which restricted this court, when reviewing the final judgment or decree of the highest court of a state, to the consideration of such errors as appeared 'on the face of the record.' It was there said that, in determining whether a federal question was raised and decided in the state court, 'this court has been inclined to restrict its inquires too much by this express limitation of the inquiry 'to the face of the record." 'What was the record of a case,' the court observed, speaking by Mr. Justice MILLER, 'was pretty well understood as a common-law phrase at the time that statute was enacted. But the statutes of the states, and new modes of proceedings in those courts, have changed and confused the matter very much since that time. It is in reference to one of the necessities thus brought about that this court long since determined to consider as part of the record the opinions delivered in such cases by the supreme court of Louisiana. Grand Gulf R. Co. v. Marshall, 12 How. 165; Cousin v. Blanc's Ex'r, 19 How. 202. And, though we have repeatedly decided that the opinions of other state courts cannot be looked into to ascertain what was decided, wes see no reason why, since this restriction is removed, we should not so far examine those opinions, when properly authenticated, as may be useful in determining that question. We have been in the habit of receiving the certificate of the court, signed by its chief justice or presiding JUDGE, ON THAT POINT, THOUGH NOT AS CONClusive, and these opinions are quite as satisfactory, and may more properly be treated us part of the record than such certificates.' The opinion of the state court in the present case is properly authenticated, and there is, in addition, the certificate of its chief justice, showing that the present plaintiff in error not only claimed that the deed of trust by the National Life Insurance Company gave, when executed, a lien superior to that asserted by the United States Mortgage Company under Lombard's mortgage, but that the act of the legislature of Illinois, in force July 1, 1875, in so far as it attempted to validate mortgages such as the one taken by that company from Lombard, was in conflict, as well with the contract clause of the constitution of the United States as with that part of the fourteenth amendment which prohibits a state from depriving a person of property without due process of law; further, that the latter claim was decided adversely to plaintiff in error.

We cannot, therefore, doubt that in the existing state of the law it is our duty to examine the opinion of the supreme court of Illinois, in connection with other portions of the record, for the purpose of ascertaining whether this writ of error properly raises any question determined by the state court adversely to a right, title, or immunity under the constitution or laws of the United States, and specially set up and claimed by the party who brings the writ. Any difficulty existing upon this subject is removed by that provision of the Revised Statutes of Illinois which requires, not only that the justices of the supreme court of the state shall deliver and file written opinions in cases submitted to it, but that 'such opinions shall also be spread at large upon the records of the court.' Rev. St. Ill. 1874, p. 329, c. 37, § 16. This statutory provision would seem to bring the case within the rule which permits an examination of the opinions of the supreme court of Louisiana to ascertain whether the case was determined upon any ground necessarily involving a federal question within the reviewing power of this court.

The opinion of the state court (93 Ill. 483) in this case, shows that the decree is based upon these grounds: (1) That the laws of Illinois, in force when the mortgage of August 22, 1872, was executed, as well as its public policy, as disclosed in legislative enactments for may years, prohibited the United States Mortgage Company from taking mortgages upon real property, in that state, to secure the repayment of money loaned; consequently, that no title passed to it under or by virtue of that mortgage. (2) That such mortgage was, however, validated by the act in force July 1, 1875. This last proposition was, as the opinion shows, contested in the state court by the present plaintiff in error, upon the grounds to which reference is made in the certificate of its chief justice.

We are here met by the suggestion that the decree can be sustained, apart from the validating act of 1875, upon the ground that the mortgage of Lombard to the United States Mortgage Company was not inconsistent with the statutes of Illinois in force at the time of its execution, or with any public policy declared in the legislation of that state. This view is based upon Stevens v. Pratt, 101 Ill. 207, and Commercial Union Assurance Co. v. Scammon, 102 Ill. 46, determined subsequently to the decree in this case. Those cases directly involved the validity of mortgages upon real estate taken from other parties by the United States Mortgage Company prior to the act of July 1, 1875. The decision in each of them was that a loan made by a foreign corporation, prior to that act, to a citizen of Illinois, and secured by mortgage, was neither prohibited by any legislation of that state, nor contrary to its public policy, and that such mortgage could be foreclosed and the title to the mortgaged real estate thereby passed. So much of the opinion of the supreme court of Illinois in this case as held to the contrary was expressly declared in Stevens v. Pratt and Commercial Union Assurance Co. v. Scammon, to be erroneous.

But it is contended, in behalf of plaintiff in error, that the decree below, in so far as it rests upon the invalidity of Lombard's mortgage, is an adjudication, as between the parties to this case, of a purely local question, of which, upon writ of error, we may not take cognizance; consequently, it is argued, this court, without reference to the later decisions of the state court, this court, without reference question here raised upon the basis established by that court in this case, viz., that Lombard's mortgage was, when given, inoperative, under the local law, to pass title to the United States Mortgage Company. Without expressing any opinion as to the soundness of this position, and assuming, for the purposes of this case only, that Lombard's mortgage was, for the reasons given by the state court, invalid under the local law, we proceed to inquire whether the act of 1875, in its application to that mortgage, is in conflict with any provision of the constitution of the United States.

That the act in question is not repugnant to the constitution, as impairing the obligation of a contract, is, in view of the settled doctrines of this court, entirely clear. Its original invalidity was placed by the court below upon the ground that the statutes and public policy of Illinois forbade a foreign corporation from taking a mortgage upon real property in that state to secure a loan of money. Whether that inhibition should be withdrawn was, so far, at least, as the immediate parties to the contract were concerned, a question of policy rather than of constitutional power. When a legislative department removed the inhibition imposed, as well by statute as by the public policy of the state, upon the execution of a contract like this, it cannot be said that such legislation, although retrospective in its operation, impaired the obligation of the contract. It rather enables the parties to enforce the contract which they intended to make. It is, in effect, a legislative declaration that the mortgagor shall not, in a suit to enforce the lien given by the mortgage, shield himself behind any statutory prohibition or public policy which prevented the mortgagee, at the date of the mortgage, from taking the title which was intended to be passed as security for the mortgage debt. We repeat here what was said in Satterlee v. Mattewson, 2 Pet. 412, and, in substance, in Watson v. Mercer, 8 Pet. 110, that 'it is not easy to perceive how a law, which gives validity to a void contract, can be said to impair the obligation of that contract.' The doctrine of those cases was approved, at the present term, in Ewell v. Daggs, [ante, 408,] whe, speaking by Mr. Justice MATTHEWS, it was said, touching legislation of this character, 'that the right of a defendant to avoid his contract is given by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability he intended to incur.'

But it is contended that by his purchase, prior to the passage of the act of 1875, of the note secured by the deed of trust given by the National Life Insurance Company, the plaintiff in error acquired a vested right of property, of which he could not, under the fourteenth amendment of the constitution, be deprived by subsequent legislation. We do not perceive that Gross was, by that act, deprived of any substantial right of property. If, as held by the court below, in this case, the title to the real estate did not pass from Lombard at the date and by virtue of his mortgage, and if, because of its invalidity under the laws and public policy of the state, he was at liberty to convey a complete title to the insurance company, we have seen that the latter took the title subject to the mortgage, and, in addition, expressly assumed to pay the amount of the debt due from Lombard to the mortgage company. Apart from the supposed inability of the mortgage company, resulting from the statutes and public policy of the state, to take title by mortgage to the premises, Lombard was personally liable to it for the money he had borrowed. He could not have escaped that personal liability upon the ground that the mortgage, in so far as it gave a lien upon the property, was invalid. The claim of the company against him for the money he obtained from it was separable from, and wholly independent of, any lien upon the premises. And, as between Lombard and the insurance company, that personal liability of the former of the mortgage debt was protected by the very terms of the conveyance to the latter. If the acceptance of title, subject to the mortgage, did not, because of its invalidity, give a lien upon the premises, it is clear that Lombard, as against the insurance company, had, upon recognized principles of equity, a vendor's lien for so much of the purchase money as was equal to, or was represented by, the debt due from him to the part of gage company. Of the existence of that liability upon the part of Lombard, and of the agreement by the insurance company to protect him against it, Gross had notice from the deed of trust. He claims under the insurance company, and can assert no right inconsistent with its obligation, as part of the purchase money, to meet Lombard's debt to the mortgage company. Without the act of 1875, a court of equity, in enforcing a lien for the note held by Gross, could not have ignored the equitable lien which, as vendor, Lombard had for his protection against the mortgage debt, subject to which, as we have seen, he passed the title to the insurance company. The entire argument in behalf of Gross proceeds upon the erroneous ground that when he purchased the note in question there was no lien upon the property in favor of any one for any amount whatever, except that given by the deed of trust to secure the note for $12,273. The effect, then, of the act of 1875 was not to deprive Gross of any superior exclusive lien upon the premises. It only enabled the mortgage company to enforce the lien attempted to be given by the mortgage of 1872, rather than leave the property subject to a lien for a like amount in favor of Lombard, from whom the insurance company, under which Gross claims, purchased. This view, without presenting others leading to the same result, indicates that the act of 1875 was not inconsistent with that clause of the constitution of the United States which inhibits a state from depriving any person of property without due process of law.

The federal question having been correctly determined, the decree is affirmed.


text: Talk:Gross v. United States Mortgage Company/Opinion of the Court


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United States v. Forty-Three Gallons of Whisky

Asst. Atty. Gen. Maury, for appellant.

C. K. Davis, for appellees.

FIELD, J.

By the treaty between the Red Lake and Pembina bands of Chippewa Indians and the United States, concluded on the second of October, 1863, those Indians ceded to the United States their right, title, and interest to certain lands owned and claimed by them in the state of Minnesota and the territory of Dakota. 13 St. 667. The seventh article of the treaty stipulated that the laws of the United States then in force or that might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country thereby ceded until otherwise directed by congress or the president of the United States. The twentieth section of the act of June 30, 1834, entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve pease on the frontier,' (4St. 729,) as amended by the act of March 15, 1864, (13 St. 29,) was in force when this treaty was made; and it forbids any one, under certain penalties, to sell or dispose of any spirituous liquors or wine to an Indian under the charge of an Indian superintendent or agent; or to introduce or to attempt to introduce them into the Indian country, unless done by order of the war department or of some authorized officer under it. And the section provides for the seizure and forfeiture of liquors thus introduced, and the goods and property of the party violating the statute with which they are found. The following is the section as amended:

'Sec. 20. And be it further enacted, that if any person shall     sell, exchange, barter, or dispose of any spirituous liquors      or wine to any Indian under the charge of any Indian      superintendent or Indian agent appointed by the United      States, or shall introduce or attempt to introduce any      spirituous liquor or wine into the Indian country, such      person, on conviction thereof before the proper district or      circuit court of the United States, shall be imprisoned for a      period not exceeding two years, and shall be fined not more      than $300: provided, however, that it shall be a sufficient      defense to any charge of introducing or attempting to      introduce liquor into the Indian country if it be proved to      be done by order of the war department, or any officer duly      authorized thereunto by the war department. And if any     superintendent of Indian affairs, Indian agent, or subagent,      or commanding of a military post, has reason to suspect or is      informed that any white person or Indian is about to      introduce or has introduced any spirituous liquor or wine      into the Indian country, in violation of the provisions of      this section, it shall be lawful for such superintendent,      subagent, or commanding officer to cause the boats, stores, packages, wagons, sleds, and other places of deposit      of such person to be searched; and if any such liquor is      found therein, the same, together with the boats, teams,      wagons, and sleds used in conveying the same, and also the      goods, packages, and peltries of such person, shall be seized      and delivered to the proper officer, and shall be proceeded      against by libel in the proper court, and forfeited, one-half      to the informer and the other half to the use of the United      States; and if such person be a trader, his license shall be      revoked and his bonds put in suit. And it shall, moreover, be     the duty for any person in the service of the United States,      or for any Indian, to take and destroy any ardent spirits or      wine found in the Indian country, except such as may be      introduced therein by the war department. And in all cases     arising under this act Indians shall be competent witnesses.'

Under this section the present libel of information was filed in the district court of the district of Minnesota, to enforce the forfeiture of certain spirituous liquors, which are particularly described, and other merchandise found with them at the time of seizure. In one of its counts the libel sets forth that Bernard Lariviere, a white person, late of the village of Crookston, county of Polk, and state of Minnesota, did, on the second of February, 1874, unlawfully carry and introduce into the country ceded to the United States under the treaty mentioned-namely, into the county of Polk, which is a part of the ceded country-the spirituous liquors described; that such introduction was in violation of the provisions of the twentieth section of the act of congress above quoted; that he owned, and at the tme had in his possession with the liquors, a quantity of goods, packages, and peltries, a list of which is contained in a schedule annexed to the libel; that an Indian agent, duly appointed, having reason to suspect, and having been informed, that spirituous liquors had been introduced by Lariviere, caused his stores, packages, and peltries to be searched, and there found the liquors mentioned, which he in consequence seized, together with the other goods. In another count the libel sets forth substantially the same matters, with the addition that the liquors were introduced into the country ceded with intent to sell, dispose of, and distribute the same among the bands and tribes of Chippewa Indians then under charge of the Indian agent, and frequenting the county of Polk and village of Crookston, and living there or near the place.

To this libel Lariviere and one Clovis Guerin appeared as claimants of the goods seized, and demurred to the libel on the ground that the court had no jurisdiction; that the property was never introduced into the Indian territory, but, as appeared by the libel, was searched and seized in an organized county of the state of Minnesota, and hence that the seizure was without authority of law. The demurrer thus interposed was sustained by the district court, and judgment rendered against the United States, and this judgment was affirmed by the circuit court. The case was then brought to this court, where the judgment was reversed and the cause remanded, with directions to overrule the demurrer. Several important legal and constitutional questions were raised on the argument here, and it was held that congress, under its constitutional power to regulate commerce with the Indian tribes, may not only prohibit the introduction and sale of spirituous liquors in the Indian country, but extend such prohibition to territory in proximity to that occupied by Indians; that it is competent for the United States, in the exercise of the treaty-making power, to stipulate in a treaty with an Indian tribe that within the territory thereby ceded the laws of the United States, then and thereafter enacted, prohibiting the introduction and sale of spirituous liquors in Indian country, shall be in full force and effect until otherwise directed by congress or the president of the United States, and that a stipulation to that effect will operate proprio vigore, and be binding upon the courts, although the ceded territory is situated within an organized county of a state. These conclusions are stated in a very clear and able opinion by Mr. Justice DAVIS, which is reported in 93 U.S. 192.


text: Talk:United States v. Forty-Three Gallons of Whisky


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United States v. Forty-Three Gallons of Whisky/Opinion of the Court

When the case went back to the district court for trial, and the demurrer was overruled, the claimant Lariviere filed an answer to the libel containing inconsistent defenses. He first denied that he ever introduced into the ceded territory the liquors as charged, and he claimed the property, except the liquors, as his; and as to those he disclaimed ownership. But, although denying their introduction, he averred that the acts charged against him were done under the authority of the war department, and that the liquors were not introduced for the purpose of sale or in the violation of any law or treaty. He subsequently amended this answer by adding an averment to the effect that the territory ceded under the treaty mentioned, lay within the limits of a collection district under the United States internalrevenue laws; that persons resident within it and within the county of Polk, and at the village of Crookston, engaged in the business of retailing spirituous liquors, had been assessed and required to pay taxes upon their business, and were thereby licensed to carry on that business and sell spirituous liquors in that county; and that he also had been thus assessed, taxed, and licensed as a retail dealer, and that his license had never been revoked nor the tax paid for the same returned. The other claimant, Guerin, averred that the property seized, except the liquors, had been transferred to him as collateral security for a debt, and denied every traversable allegation in the information save the seizure by the Indian agent. On the trial evidence was introduced by the government tending to show that Lariviere introduced the liquors mentioned with the intent to sell them to Indians under the charge of the United States Indian agents, and also to show the circumstances of the seizure. Against the objection of the government Lariviere gave evidence of all the circumstances touching the assessment and collection of the internal-revenue tax from him and other sellers of liquor by retail in the county of Polk. The court charged the jury that while the mere introduction of spirituous liquors in the ceded territory was prima facie evidence of an unlawful purpose, this evidence was neutralized by proof that the claimant held at the time a receipt of the collector of internal revenue for the special tax required to be paid by a retail liquor dealer, and hence that the burden of proof was shifted on the government to show that the liquors were introduced with the intent to sell them to the Indians. It also charged that 'the uncontroverted facts found for the defense were a license to Lariviere to take liquor to Crookston, and gave him the right to do so, and that, for so doing, he was subject to no penalty under the national law.' To this charge an exception was taken. There was a verdict for the claimant and judgment was entered thereon that the libel be dismissed. The case was then taken to the circuit court and the judgment of the district court was there affirmed. To review that judgment the case is brought here.

The only question for our consideration, as thus seen, is whether Lariviere's payment of the special internal-revenue tax for selling liquors in the collection district embraced by the ceded territory exempted him from the penalties of the act of 1864. We are clear that it did not. Congress never intended to interfere with the operation of the treaty, or to sanction the sale of liquors in any ceded territory, where an express stipulation provides that they shall not be sold. The evils resulting from the use of spirituous liquors are so many and so appalling that the government has, from an early period of our history, abored to prevent their introduction among the Indians. In order more effectually to secure this result, laws prescribing severe penalties have been enacted, and authority has been vested in the Indian agents to arrest traffickers in the prohibited article, and to seize and confiscate their property found with it. It would require very clear expressions in any general legislation to authorize the inference that congress proposed to depart from its long-established policy in regard to a matter of such vital importance to the peace and to the material and moral well-being of these wards of the nation. There is also another consideration. The laws of congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to do so without violence to their language. This rule operates with special force where a conflict would lead to the abrogation of a stipulation in a treaty making a valuable cession to the United States.

The unauthorized introduction of liquors into the ceded territory constitutes the offense, although if they were not sold or given away no injurious consequences would follow; but once allow their indiscriminate or general introduction and the law would be evaded without possibility of detection. The introduction is, therefore, forbidden, unless permitted by the order of the war department or of some officer authorized by it. The establishment of the collection district, embracing bracing the ceded territory, while providing for the collection of taxes on certain kinds of business, did not authorize, nor was it intended to authorize, business which was otherwise specifically forbidden. The License Tax Cases, 5 Wall. 462, do not conflict with, but rather support, this view. They merely decide that the licenses of the United States for selling liquors and dealing in lotteries exempted the party from the penalties of the revenue law to which he would otherwise be subjected. They gave no exemption from state laws or the taxes they imposed for the business carried on. They conferred no authority by themselves to carry on any business within a state. They were in the nature of taxes on the business which the state permitted. The court, speaking by Chief Justice CHASE, said that if the licenses were to be regarded as giving authority to carry on the branches of business which they licensed, it might be difficult, if not impossible, to reconcile the granting of them with the constitution. 'But,' he added, 'it is not necessary to regard these laws as giving such authority. So far as they relate to trade within state limits, they give none and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for nonpayment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and implying nothing except that the licensee shall be subject to no penalties under national law if he pays it.' Though these cases are cited by the defendant, they affirm the doctrine that the licenses under the then existing law, being designed merely to secure the payment of taxes to the United States, did not interfere with other legitimate regulations of business, nor sanction it where otherwise prohibited.

The case of The Cherokee Tobacco, 11 Wall. 616, cannot be treated as authority against the conclusion we have reached. The decision only disposed of that case, as three of the judges of the court did not sit in it, and two dissented from the judgment pronounced by the other four.

It follows from the views expressed that the judgment of the court below must be reversed and a new trial had; and it is so ordered.


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Connecticut Mutual Life Insurance Compnay v. Luchs

[Syllabus from page 498 intentionally omitted]

[Statement of Case from pages 498-500 intentionally omitted]

Enoch Totten, for Connecticut Mut. Life Ins. Co.

A. S. Worthington, for Luchs.

[Argument of Counsel from pages 500-502 intentionally omitted]

FIELD, J.


text: Talk:Connecticut Mutual Life Insurance Compnay v. Luchs


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Connecticut Mutual Life Insurance Compnay v. Luchs/Opinion of the Court

This was an action by Leopold Luchs on a policy of insurance upon the life of Levi Dillenberg, issued by the Connecticut Life Insurance Company in June, 1869. Luchs and Dillenberg were partners at the time in the business of buying and selling tobacco in the city of Washington. Their partnership was formed in October, 1866, each agreeing to contribute his services and one-half of the capital. It was understood that the money of Dillenberg was then invested in mining stocks, and could not at once be obtained. Luchs accordingly furnished the entire capital, which was over $10,000. Dillenberg never contributed his portion, and, about two years after the partnership was formed, his failure in this respect caused dissatisfaction and complaint. It was thereupon suggested by one Myers, who was employed by an agent of the insurance company, and who had been called in as an accountant to examine the books of the concern, that, as a means of 'adjusting the dispute or misunderstanding between the partners,' a policy of insurance should be obtained upon the life of Dillenberg for the benefit of Luchs, and that Dillenberg should retire from the firm within a year afterwards. Nothing, however, was then done upon this suggestion, but in the following year the policy in suit was procured.

1. The first question presented is as to the right of Luchs to sue upon it. It is plain, from the parol evidence in the case, that it was the intention both of Luchs and Dillenberg that the policy should be procured for the benefit of Luchs. The declaration, which is the application for the policy, begins with an averment that he, Luchs, is desirous of affecting an insurance upon the life of Dillenberg, and proceeds to state the latter's age, the condition of his health, the character of his habits, and that he, Luchs, has an interest in the life of Dillenberg to the amount of $10,000. The declaration is signed both by Luchs and Dillenberg, though it purports in every line to be the separate application of Luchs. It is accompanied by questions and answers, and to the first question, as to the name and residence of the person for whose benefit the insurance is proposed, the answer is: 'Leopold Luchs, Washington, D. C.' The answers also are signed both by Luchs and Dillenberg.

The policy was issued and delivered to Dillenberg, and retained by him until after the dissolution of the partnership, when he handed it to Luchs, stating that he gave it to him to show that he intended to do what was right and fair with him, and requested him to pay the premiums on it, promising to refund the money. The first two premiums were paid by Dillenberg, the others by Luchs. The difficulty in the question presented arises from the language of the policy. Omitting words not essential on this point, it reads as follows:

'This policy witnesseth that the Connecticut Mutual Life     Insurance Company, in consideration of the declarations and      representations made to them in the application for this      insurance, and the sum of $125 to them in hand paid by      Leopold Luchs, *  *  * do assure the life of Levi Dillenberg. * *  * And the said      company do hereby promise *  *  * the said assured *  *  * to pay      *  *  * said sum insured to the said assured, his executors,      administrators, or assigns, within ninety days after due      notice and proof of the death of the said Levi Dillenberg.

'It is hereby declared to be the true intent and meaning of     this policy, and the same is accepted by the assured upon the      express conditions that in case the said person whose life is      hereby insured shall pass beyond the settled limits or the      protection of the government of the United States, *  *  * this      policy shall be null. It is also understood that if the     proposal, answers, and declaration made by the said Leopold      Luchs, which are hereby made part and parcel of this policy      as fully as if herein recited, and upon the faith and      warranty of which this agreement is made, shall be found in      any respect untrue, this policy shall be null and void, or in      case the said assured shall not pay the said annual premiums,      *  *  * this policy shall cease.

'It is further agreed that this poliey shall not take effect     *  *  * until the premium above named shall be actually paid *      *  * during the life of the insured.'

The contention of the plaintiff is that the words 'the assured' in the policy apply to the person for whose benefit the policy was effected, that is, Luchs, and not to the party whose life was insured. There are undoubtedly instances where this distinction between the terms 'assured' and 'insured' is observed, though we do not find any judicial consideration of it. The application of either term to the party for whose benefit the insurance is effected, or to the party whose life is insured, has generally depended upon its collocation and context in the policy. We are of opinion that, reading the policy here in connection with the declaration and the answers of Luchs, which form a part of it, and indicate the object of procuring it, the term 'assured' must be held as applicable to him, for whose benefit it was effected.

The policy considered in ''AEtna Life Ins. Co''. v. France, 94 U.S. 562, gives some support to this view. There the policy was effected by a brother for a sister's benefit, and term assured was held to apply to the sister, for she recovered in a suit brought in connection with her husband on the policy. The attention of the court does not appear, however, to have been directed to that term. It may be said, also, that there could be little doubt as to its proper application in that case, as it was followed by the words 'and her executors, administrators, or assigns,' thus limiting it to the sister. In other respects the language is substantially identical with that of the policy under consideration.

2. The second question presented for our determination is whether Luchs had an insurable interest in the life of Dillenberg. Upon this we have no doubt. Dillenberg was his partner and had not paid his promised proportion of the capital of the concern. At the time the policy was applied for he was still in default, and although it might have turned out that the actual amount due, upon a settlement of accounts, was less than the promised proportion, it was not a matter definitely ascertained at the time. Besides what was thus due to him, Luchs was interested in having Dillenberg continue in the partnership. He had such an interest, therefore, as took from the policy anything of a wagering character.

As this court said in Warnock v. Davis, recently decided:

'It is not easy to define with precision what will, in all     cases, constitute an insurable interest, so as to take the      contract out of the class of wager policies. It may be stated     generally, however, to be such an interest arising from the      relations of the party obtaining the insurance, either as      creditor of or surety for the assured, or from the ties of      blood or marriage to him, as will justify a reasonable      expectation of advantage or benefit from the continuance of      his life. It is not necessary that the expectation of     advantage or benefit should be always capable of pecuniary      estimation. * *  * But in all cases there must be a reasonable      ground, founded upon the relations of the parties to each      other, either pecuniary or of blood or affinity, to expect      some benefit or advantage from the continuance of the life of      the assured.' 104 U.S. 779.

Certainly Luchs had a pecuniary interest in the life of Dillenberg on two grounds: because he was his creditor and because he was his partner. The continuance of the partnership, and, of course, a continuance of Dillenberg's life, furnished a reasonable expectation of advantage to himself. It was in the expectation of such advantage that the partnership was formed, and, of course, for the like expectation, was continued.

In Morrell v. ''Trenton Mut. Life & Fire Ins. Co.'' 10 Cush. 282, a policy was taken out by the plaintiff upon the life of his brother, who was about going to California, on an agreement that the latter should pay to him one-fourth of his earnings for the following year. In an action on the policy it was contended that the plaintiff had no insurable interest upon the life of the insured, but the court, after deciding that he had such an interest from the fact that he held a promissory note signed by the firm of which the insured was a partner, also said that it was strongly inclined to the opinion that the plaintiff had another interest in the life of the person insured. 'He had.' said the court, 'a subsisting contract with that person, made on a valuable consideration, by which he was to receive one-quarter part of his earnings in the mines of California for one year. Such an interest cannot, from its nature, be valued or apportioned. It was an interest upon which the policy attached. By the loss of his life within the year, the person whose life was insured lost the means of earning anything more, and the plaintiff was deprived of receiving his share of such earnings to an uncertain and indefinite amount.'

In ''Trenton Mutual Life & Fire Ins. Co. v. Johnson'', 4 Zab. 576, a policy was taken out by the plaintiff on the life of one Van Middlesworth for $1,000, one-half payable to the plaintiff and the other half to Van Middlesworth. They belonged to an association called the New Brunswick & California Mining & Trading Company, the capital stock of which consisted of 45 shares of $600 each. The company consisted partly of shareholding members and partly of active members, the shareholders being each required to furnish a substitute to proceed to the mines of the company. The plaintiff owned one share, advanced $600 of capital, and procured Van Middlesworth to go out as his substitute, which he did, and acted as his agent and substitute; and the assets of the company having been divided in California, he received the plaintiff's share, and afterwards died, not having paid it over. By one of the articles of the association all treasures and all the proceeds of the labor of each member, and all profits, were to go into a general fund for the benefit of the association. To the action brought on the policy it was objected that the plaintiff had no insurable interest in the life of the deceased. On this question the court said:

'In the present case Johnson had a direct interest in the     life of his substitute, whose earnings were to constitute a      part of the joint funds, of which he was entitled to his      share, an interest fully equivalent to the interests of a      wife in the life of her husband, of a child in that of a      parent, or a sister in that of a brother. And at Van     Middlesworth's death, although prior to that time the company      had been virtually dissolved, he had an interest in him as      his creditor to the extent of his share of the assets in his      hands.'

In Bevin v. ''Conn. Mut. Life Ins. Co.'' 23 Conn. 244, the plaintiff had obtained a policy of insurance for $1,000 on the life of one Barstow, to whom he had advanced $350, besides articles of personal property, to enable him to go to California and there labor for one year, on an agreement that he would account to the plaintiff for one-half of his gains. The court said that Barstow was the plaintiff's debtor and partner, giving to the plaintiff an interest in the continuance of his life, as by that means, through his skill and efforts, the plaintiff might expect, not only to get back what he had advanced, but to acquire great gains and profits in the enterprise. 'All the books,' the court added, 'hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it in the policy. This was the sum asked for by the plaintiff, and which the defendants agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy.' And, after referring to a policy of insurance obtained by a sister on her brother's life, where no question seemed to have been made as to the amount, but only whether it was an interest which the law would recognize, the court said: 'So, in every case, where a person on his own account insures the life of a relative, if the sum named in the policy is not to be the rule of damages, we inquire what is? The impossibility of satisfactorily going into the question in most cases, and especially where there is nothing to guide the inquiry, and everything is uncertain, would lead us to hold that a policy like this is a valued policy as most consistent with the understanding of the parties and the principles of law.'

3. The third question presented for determination relates to alleged breaches of the warranty of the policy. It is alleged that the policy was issued upon the faith of certain statements and answers of the plaintiff which were untrue. These statements were First, that the plaintiff had an interest in the life of Dillenberg to the amount of $10,000, when, in fact, he had no interest in it; and, second, that the cause of the death of one of the brothers of Dillenberg was accident, when, in fact, he had committed suicide.

As to the alleged breach of the warranty of the interest of the plaintiff in the life of Dillenberg there is this answer: The statement of the plaintiff as to the amount of his interest was necessarily conjectural. No one can affirm with absolute certainty that he has an interest to a definite sum in the life of another, where the interest depends upon the result of an existing partnership or other business transactions not yet terminated. The value of his interest in such cases will always be more or less a matter of opinion. The statement in that regard, must, of necessity, be taken as a mere estimate. If, therefore, the plaintiff had an interest in the life of Dillenberg, and his estimate was made in good faith, the declaration cannot be deemed untrue so as to constitute a breach of the warranty. The extent of a man's interest in the life of another, depending upon a continuing partnership or the results of business transactions not yet completed, is, in the nature of things, uncertain, and in such cases all that can be required is that he had an actual interest, and that his estimate was made in good faith, without any purpose to deceive. See Bevin v. ''Conn. Mut. Life Ins. Co.'', cited above.

Here the plaintiff valued his interest and took out a policy for only half of the sum estimated. He did not procure the policy for any purpose of speculating upon the duration of the life of Dillenberg. From the finding of the jury we must take as true that his representation was made in good faith upon an honest opinion as to the value of his interest.

As to the alleged misstatement of the cause of the death of a brother of the deceased, it is sufficient to observe that there is no allegation on this subject in the answers of the plaintiff, and the point is taken simply because, in an answer to a previous application, that statement was made. Such previous answer cannot be incorporated into the present policy. The reference to the previous application is made for the answer to a different inquiry.

The may be, as stated by counsel for the company, some inconsistencies between the charges given at its request, and those given at the request of Luchs. The latter present all the disputed questions of fact to the jury, and if those granted at its request are erroneous, in so far as they differ, it is not for it to complain, as was well observed by counsel, that while the judge held Luchs within proper limits, itself was suffered to go beyond them.

Upon the whole record of the case we find no error sufficient to justify a reversal of the judgment. It is, therefore, affirmed.


text: Talk:Connecticut Mutual Life Insurance Compnay v. Luchs/Opinion of the Court


text:
Western Pacific v. United States

The bill was filed in the court below in February, 1887. Hearing was had on the evidence, and in June, 1878, a decree was rendered setting aside the letter patent as "issued by mistake and without authority of law." The bill did not disclose any authority from the attorney-general to bring the suit, nor was such authority shown in the court below, nor was any objection taken for the want of the averment or the proof of such authority. The controversy below, upon the facts, was in regard to the character of the lands, whether mineral or not; and, upon the law, in regard to the effect of the acts of the agents of the United States upon the patentee's title. The defendants below appealed from the decree.

Mr. Henry Beard for the appellants. — I. It does not appear in the pleadings or decree that the United States, by its attorney-general, authorized the filing of the bill in this cause. This should have been averred in the bill. United States v. Throckmorton, 98 U.S. 61. — II. The lands in question were not mineral lands within the meaning of that term as defined by acts of Congress. In the act of July 26th, 1866, 14 Stat. 251, c. 262, § 2, mineral lands are defined as "a vein or lode of quartz, or other rock in place, bearing gold, cinnabar, or copper," in the act of July 9th, 1870, 16 Stat. ch. 217, 235, § 12, they are described as "valuable mineral deposits in lands," and in Rev. Stat. § 2318, as "lands valuable for minerals." The lands in question were, in the regular administration of the land laws, surveyed and ascertained to be non-mineral lands, and patented as such. A second survey, after the United States has parted with the land, is inoperative to affect the patent. — III. The third point discusses the evidence.

Mr. Assistant Attorney-General Maury for the United States discussed the evidence, and presented the following letter from the attorney-general directing the commencement of suit.

"Department of Justice, "Washington, January 17th, 1877.

"John M. Coghlan, U.S. Attorney, San Francisco, California.

"Sir, — I enclose a copy of a letter of the 16th instant, addressed to me by the Secretary of the Interior, and the enclosures therewith, to wit: A copy of the report to the Secretary by the Commissioner of the General Land Office, and a copy of a letter of March 14th, 1874, addressed by the then commissioner to the register and receiver at San Francisco.

"As requested by the Secretary, you will cause legal proceedings to be instituted to vacate the patent to the Western Pacific Company of California for the N.E. one-fourth of section 29, T. 1 N., R. 1 E., Mount Diabolo meridian.

"Very respectfully,

"ALPHONSO TAFT, "Attorney-General."

Mr. JUSTICE MILLER delivered the opinion of the court.

title: Western Pacific v. United States


text: Talk:Western Pacific v. United States

title: Talk:Western Pacific v. United States


text:
Western Pacific v. United States/Opinion of the Court

John M. Coghlan, district attorney of the United States for the District of California, on behalf of the United States, brought the bill in this case in the circuit court of that district against the Western Pacific Railroad Company and Charles McLaughlin to set aside a patent of the United States conveying to the railroad company the northeastern quarter of section 29, township one (1) north, range one (1) east, of Mount Diabolo meridian.

This patent was made under the acts of Congress granting lands to the Union Pacific, Central Pacific, and Western Pacific Railroad Companies, to aid in building a road from the Missouri River to the Pacific Ocean.

The acts of Congress granted to each company the alternate sections within certain limits on each side of its road, and authorized the issue of patents for the same when the work was done and the sections ascertained. But they excepted out of this grant, among others, such sections or parts of sections as were mineral lands.

The bill in this case alleges, as the reason for vacating and setting aside the patent, that the quarter-section in question is mineral land, that it was so at the time of the grant, and was known to be so when the patent was issued, which was so issued without authority of law by inadvertence and mistake.

The patent itself is not in the record as an exhibit, or as part of the evidence. The Western Pacific Railroad Company, to whom it was issued, though made defendant in the bill, was not served with the subpoena and did not appear. McLaughlin, the only defendant who did appear, defends as purchaser two degrees removed from the company. Instead of a general replication to McLaughlin's answer, the reply is an amendment to the original bill.

The whole record is so imperfect and the case so obscurely presented, that we feel tempted to dismiss it.

Waiving, however, these objections, there is enough to enable us to consider the two principal errors assigned by appellant.

The first of these is that there is no sufficient evidence that the suit was instituted under the authority of the Attorney-General, according to the principle established in the case of United States v. Throckmorton, 98 U.S. 61.

To this it may be answered that the objection was not raised in this case in the court below, as it was in that; that the case is argued in this court on behalf of the government by the Assistant Attorney-General, who files in the court, a certified copy of the order of the Attorney-General directing the district attorney to bring the suit in the circuit court, as requested by the Secretary of the Interior.

We think the decree of that court, under these circumstances, can hardly be reversed now, on this ground, taken here for the first time.

The other objection to the decree in favor of the United States is that the evidence does not establish as a fact that the land in controversy was mineral land when the patent issued.

An examination of the evidence on this subject convinces us that the circuit judge was right in holding that it was. It is satisfactorily proven, as we think, that cinnabar, the mineral which carries quicksilver, was found there as early as 1863, that a man named Powell resided on the land and mined this cinnabar at that time, and in 1866 established some form of reduction works there; that these were on the ground when application for the patent was made by defendant McLaughlin, as agent of the Western Pacific Railroad Company, and that these facts were known to him. He is not, therefore, an innocent purchaser. Concurring as we do with the circuit court in the result arising from the evidence, we do not deem it necessary to give in this opinion a detailed examination of it.

This being the first case of the kind in this court, a class of cases which may possibly be indefinitely multiplied, it is to be regretted that it was not more fully presented in the circuit court. Many interesting questions might arise in this class of cases not proper to be considered in this case. For instance, the nature and extent of mineral found in the land granted or patented which will bring it within the designation of mineral land in the various acts of Congress, in which it is excepted out of grants to railroad companies and forbidden to be sold or pre-empted as ordinary or agricultural lands are.

Suppose that when such land has been conveyed by the government it is afterwards discovered that it contains valuable deposits of the precious metals, unknown to the patentee or to the officers of the government at the time of the conveyance, will such subsequent discovery enable the government to sustain a suit to set aside the patent or the grant? If so, what are the rights of the innocent purchasers from the grantee, and what limitations exist upon the exercise of the government's right? We can answer none of these questions here, and can only order that the decree below be affirmed.


text: Talk:Western Pacific v. United States/Opinion of the Court


text:
Vance v. Vance, Executrix

C. W. Hornor, for plaintiff in error.

E. M. Hudson, for defendant in error.

MILLER, J.

title: Vance v. Vance, Executrix


text: Talk:Vance v. Vance, Executrix

title: Talk:Vance v. Vance, Executrix


text:
Vance v. Vance, Executrix/Opinion of the Court

This is a writ of error to the supreme court of Louisiana. In a proceeding in the state court of Louisiana the plaintiff in error recovered a judgment against the defendant in error, as executrix of the succession of her husband, S. W. Vance, for the sum of about $75,000, due from him to plaintiff in error as her natural tutor. The sum thus found due was the result of an accounting concerning this tutorship during the period between October 15, 1859, and May 18, 1877. Article 354 of the Civil Code of Louisiana, in force when this tutorship began, says: 'The property of the tutor is tacitly mortgaged in favor of the minor, from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it.' The court of probate, which adjusted this account, decreed in favor of the plaintiff in error that her mortgage privilege for the sums and interest found due her be recognized on all the lands owned by Samuel W. Vance, the deceased tutor, on and after the fifteenth day of October, 1859. From this branch of the decree certain creditors of the deceased tutor, who had been permitted to intervene, appealed to the supreme court of the state, and that court reversed the decree of the probate court by deciding against the existence of this mortgage privilege. The ground on which this privilege was denied is found in article 123 of the constitution of the state of Louisiana, adopted in April, 1868, which is as follows:

'The general assembly shall provide for the protection of the     rights of married women to their dotal and paraphernal      property, and for the registration of the same; but no      mortgage or privilege shall hereafter affect third parties,      unless recorded in the parish where the property to be      affected is situated. The tacit mortgages and privileges now     existing in this state shall cease to have effect against      third persons after the first of January, 1870, unless duly      recorded. The general assembly shall provide by law for the     registration of all mortgages and privileges.'

The legislature did pass the act of March 8, 1869, No. 95: 'To carry into effect article 123 of the constitution, and to provide for recording all mortgages and privileges.' Session Acts 1869, p. 114. Section 11 reads: 'That it shall be the duty of the clerks of the district  courts of the several parishes in this state to make out   an abstract of the inventory of the property of all   minors whose tutors have not been required by law to   give bond to their tutorship, such abstract to describe   the real property, and give the full amount of the   appraisement of all the property, both real and   personal, and rights and credits, and to deposit such   abstracts with the recorders of the several parishes,   whose duty it shall be to record the same as soon as   received in the mortgage-book of their parish; such   abstracts to be made out and deposited with the   recorders by the first day of December, 1869, and   recorded by the first day of January, 1870. This section  to apply only to tutorship granted before the passage of   this act, and any failure of the clerks or recorders to   perform the service required by this section shall   subject them to any damages that such failure may cause   any person, and shall further subject them to a fine of   not less than one hundred nor more than one thousand   dollars, for the benefit of the public school fund, to   be recovered by the district attorney or district   attorney pro tem. before any court of competent  jurisdiction. Such abstracts, when recorded in any  parish in which the tutor owns mortgageable property,   shall constitute a mortgage on the said tutor's property   until the final settlement and discharge of the tutor. The fees for making out and recording such abstracts  shall be the same as the fees prescribed for the clerks   and recorders for other similar services, and shall be   paid on demand by the tutor, or, if the minors have   arrived at the age of majority, by them; and if no   responsible person can be found, then any property owned   by the minors for whose benefit such services were   performed, shall be sold to pay the same; and if no   person or property be found to pay the same, then the   parish shall pay the same, and have recourse against the   person or property of any person for whose benefit the   services were performed.'

The case comes to this court on the proposition that, as thus construed, the constitution and statute of Louisiana impair the obligation of her contract with her tutor concerning his duty to account for her estate in his hands, and also violate the provision of section 1, art. 14, of the amendments to the constitution of the United States.

The view of the supreme court of Louisiana on this matter is very clearly presented in the following extract from its opinion in the case:

'Waiving the question (which is certainly a debatable one)     whether or not the obligations and mortgages existing against      the natural tutor in favor of his ward arise or spring from      contracts, we think the plaintiff's argument untenable, in      that it assumes that article 123 destroyed or impaired      plaintiff's mortgage obligation in the sense of the      constitution of the United States. Had the article simply     declared the abolition and extinction eo instanti of all      tacit mortgages, there would have been the case presented by      plaintiff's argument. But it did nothing of the sort. It     fixed a future day, reasonably distant, and declared that      such mortgages would perempt, prescribe, or cease to exist as      to third persons unless recorded by that date.

'It is in its nature a statute of limitations. The right of     the state to prescribe the time within which existing rights      shall be prosecuted, and the means by and conditions on which      they may be continued in force, is, we think, undoubted. Otherwise, where no term of prescription exists at the     inception of a contract, it would continue in perpetuity, and      all laws fixing a limitation upon it would be abortive. Now,     it is elementary that the state may establish, alter,      lengthen, or shorten the period of prescription of existing      rights, provided that a reasonable time be given in future      for complying with the statute.' See Cooley, Const. Lim. 376;     Story, Coust. p. 236, § 1385.

These observations seem to us eminently just. The strong current of modern legislation and judicial opinion is against the enforcement of secret liens on property. And, in regard to real property, every state in the Union has enacted statutes holding them void against subsequent creditors and purchasers, unless they have actual notice of their existence, or such constructive notice as arises from registration.

The constitution of Louisiana introduced this principle, and did it with due regard to existing contracts. It did not change, defeat, or impair the obligation of the tutor to perform that contract. It did not take away or destroy the security which existed by way of lien on the tutor's property, nor as between the tutor and the ward did it make any change whatever. But it said to the latter:

'You have a secret lien, hidden from persons who are dealing     every day with the tutor on the faith of this property, and      in ignorance of your rights. We provide you a way of making     those rights known by a public registration of them which all      persons may examine, and of which all must take notice at      their peril. We make it the duty of officers having charge of     the offices where the evidence of your claim exists to make      this registration. We make it your duty also to have it done. We give you a reasonable time after this constitution is     passed and after the enabling statute is passed to have this      registration made. If it is not done within that time your     debt remains a valid debt, your mortgage remains a valid      mortgage, but it binds no one who acquires rights after that      in ignorance of your mortgage, because you have not given the      notice which the law required you to give.'

We think that the law, in requiring of the owner of this tacit mortgage, for the protection of innocent persons dealing with the obligor, to do this much to secure his own right, and protect those in ignorance of those rights, did not impair the obligation of the contract, since it gave ample time and opportunity to do what was required, and what was eminently just to everybody.

The authorities in support of this view are ample.

Perhaps the case most directly in point is one in this court, namely, Curtis v. Whitney, 13 Wall. 68. That was a case like this, arising out of a statutory contract to which the legislature, by a law enacted after it was made, added, as in this, the duty of giving notice. Curtis purchased at a public sale for delinquent taxes a tract of land, and received from the proper officer a certificate, which by law authorized her to obtain a deed at the end of three years, if the land was not redeemed, by paying the amount of the bid and interest. After this sale, and before the end of the three years, the state passed an act that, where any person was found in the actual occupancy of the land, the deed should not issue unless a written notice had been served on the owner of the land or on the occupant, by the holder of the tax certificate, at least three months prior thereto, and it was made applicable to past sales as well as future. Mrs. Curtis applied for and obtained her deed without giving this notice, and when she brought suit to quiet the title so acquired, the supreme court of Wisconsin decided her deed void for want of it. The case was brought to this court on the ground that the statute of Wisconsin requiring this notice impaired the obligation of the contract evidenced by the certificate of sale; but this court held that it did not. That the case is very like the one before us in obvious. The court said:

'That the statute is not void because it is retrospective has     been repeatedly held by this court, and the feature of the      act of 1867, which makes it applicable to certificates      already issued for tax sales, does not of itself conflict      with the constitution of the United States. Nor does every     statute which affects the value of a contract impair its      obligations. It is one of the contingencies to which parties     look now in making a large class of contracts, that they may      be affected in many ways by state and by national      legislation. For such legislation demanded by the public     good, however it may retroact on contracts previously made,      and enhance the cost and difficulty of performance, or      diminish the value of such performance to the other party,      there is no restraint in the federal constitution so long as      the obligation of performance remains in full force. In the     case before us the right of the plaintiff is not taken away,      nor the time when she would be entitled to it postponed. * *      * The right to the money or the land remains, and can be      enforced whenever the party gives the requisite legal notice. The authority of the legislature to frame rules by which the     right of redemption may be rendered effectual, cannot be      questioned, and among the most appropriate and least      burdensome of these is the notice required by the statute.'

In the case of Louisiana v. New Orleans, 102 U.S. 202, the supreme court of the state refused the relator a writ of mandamus to enforce a levy of taxes to pay a judgment against the city, on which an execution had been issued and a * return of nulla bona made. The supreme court denied the writ because the relator had not registered his judgment with the proper officer of the city, under a statute which required such registry in order that proper levy of taxes might be made and judgments paid in their proper order. The case was brought to this court on the proposition that the statute which was enacted after relator's contract was made was an impairment of its obligation within the meaning of the constitution of the United States. But this court held that the registry of these judgments was 'a convenient mode of informing the city authorities of the extent of the judgments, and that they have become executory, to the end that proper steps may be taken for their payment. It does not impair existing remedies.'

In Jackson v. Lamphire, 3 Pet. 289, court said:

'It is within the undoubted power of state legislatures to     pass recording acts, by which the elder grantee shall be      postponed to a younger, if the prior deed is not recorded      within the limited time; and the power is the same whether      the deed is dated before or after the recording act. Though     the effect of such a law is to render the prior deed      fraudulent and void against a subsequent purchaser, it is not      a law impairing the obligation of contracts. Such, too, is     the power to pass acts of limitation, and their effect. Reason and sound policy have led to the general adoption of     laws of both descriptions, and their validity cannot be      questioned.'

And this language is reproduced with approval in the case of Curtis v. Whitney, above referred to.

The decisions in regard to the statute of limitation are full to the same purpose, and, as the supreme court of Louisiana says, this is a statute of limitation, giving a reasonable time within which the holder of one of these secret liens may make it public, otherwise it will be void against subsequent purchasers and creditors without notice.

The case of Terry v. Anderson, 95 U.S. 628, presents, in the terse language of the chief justice of this court, both the rule, the reason for it, and the limitation which the constitutional provision implies. This court, he says, 'has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the enforcement of the action before the bar takes effect.' He adds, in reference to the case the before the court, which was a South Carolina statute of limitation, passed since the civil war:

'The business interests of the entire people of the state had     been overwhelmed by a calamity common to all. Society     demanded that extraordinary efforts be made to get rid of old      embarrassments, and permit a reorganization upon the basis of      the new order of things. This clearly presented a case for     legislative interference within the just inferences of      constitutional limitations. For this purpose the obligations     of old contracts could not be impaired, but their prompt      enforcement could be insisted upon, or an abandonment      claimed. That, as we think, has been done here, and no more.'

And Jackson v. Lamphire is again cited with approval.

The same principle is asserted in the case of Koshkonong v. Burton, at the last term, 104 U.S. 668. Other cases in this court are Hawkins v. Barney's Lessee, 5 Pet. 457; Sohn v. Waterson, 17 Wall. 596; Sturges v. Crowninshield, 4 Wheat. 122.

It is urged that because the plaintiff in error was a minor when this law went into operation, it cannot affect her rights. But the constitution of the United States, to which appeal is made in this case, gives to minors no special rights beyond others, and it was within the legislative competency of the state of Louisiana to make exception in their favor or not. The exemptions from the operation of statutes of limitations, usually accorded to infants and married women, do not rest upon any general doctrine of the law that they cannot be subjected to their action, but in every instance upon express language in those statutes giving them time, after majority or after cessation of coverture, to assert their rights. No such provision is made here for such exception, but, in place of it, the legislature has made it the duty of the proper officer of the court to act for them. It was also the duty of the under tutor appointed in this case.

If the foregoing considerations be sound, they answer also effectually the suggestion in regard to the fourteenth amendment of the constitution of the United States.

We see no error in the record of the case of which this court has jurisdiction, and the decree of the supreme court of Louisiana is affirmed.


text: Talk:Vance v. Vance, Executrix/Opinion of the Court


text:
Washington v. District of Columbia

Enoch Totten and W. D. Davidge, for appellant.

O. G. Riddle and Francis Miller, for appellee.

MILLER, J.

title: Washington v. District of Columbia


text: Talk:Washington v. District of Columbia

title: Talk:Washington v. District of Columbia