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Dauterive v. United States/Opinion of the Court

Claimants to land lying within the States of Florida, Louisiana, or Missouri, by virtue of any grant, concession, order of survey, permission to settle, or other written evidence of title bearing date prior to the cession of the territory out of which those States were formed, may make application to certain commissioners for the confirmation of their title, or they may at their option proceed by petition in the District Court within whose jurisdiction the lands are situated. 12 Stat. 85.

Either party aggrieved by the decree in the case may appeal directly to the Supreme Court as of right, neither affidavit or security being required of the claimant, other than for costs. Pursuant to that authority the appellants presented their petition to the District Court of the District for Louisiana, asking for the confirmation of their title to the same, except as to such parts thereof as have been granted by the U ited States or confirmed to other parties, as to which they pray that they may be adjudged to be entitled to indemnity in certificates of location to the same extent of land.

Sufficient appears to show that the same claim was presented to the same District Court twenty years earlier, and that on appeal to the Supreme Court the claim was rejected. United States v. D'Auterieve, 15 How. 14. Full report is there given of the origin, nature, and extent of the claim, and in view of that fact it is not deemed necessary to reproduce the allegations of the petition in this opinion, as the whole substance of the same is given in the opinion of the court in that case.

Due appearance was entered in behalf of the United States in this case, and the district attorney filed an answer to the petition, setting up several defences, as follows: 1. That no such grants or mesne conveyances as those under which the petitioners claim were ever made. 2. That if any such grants were ever made as alleged, which is denied, that the lands were never separated by metes and bounds or actual survey from the mass of the public domain, and are therefore null and void by reason of uncertainty of location and vagueness of description, both as to the boundaries of the grants and to their extent.

Tracts of land of great extent were granted by royal charter to a certain association called the Western Company, and the claim of the appellants is that that company made concession of the tract in question to the grantor of their ancestor, the tract at the date of the concession being four leagues front on the right bank of the Mississippi River and extending back to the river Atchafalaya, a distance of ten or twelve miles. Neither the royal charter granting the land to the Western Company nor the concession to the grantor of their ancestor is given in evidence. Nothing of the kind is pretended, but the appellants allege that the letters-patent, bearing date in 1717, were issued in the name of the sovereign of France, by which the said company was created, and that by the fifth article of the same all the lands, coasts, ports, havens, and islands of the Province of Louisiana were given and granted to the said company, with power to give, sell, and grant the same to others, and that the company during that year or early in the next year conveyed the tract antecedently described to the grantor of their ancestor.

Their theory is that the concession was made by the French authorities before the province was ceded to Spain. History shows that France subsequently, by a secret treaty, transferred the province to Spain in pursuance of the stipulations between the contracting parties. When the first governor under the Spanish rule visited the province he reduced the tract to a front of twenty arpents, to which no objections appear to have been made by the claimant; but the successor of that magistrate, three years later, when he assumed the functions of governor of the province, enlarged the front to forty-four arpents, which perhaps was done at the request of the claimant. Galvez was the third governor of the province after the cession to Spain, and he, in the exercise of his powers, took away from the heirs of the alleged purchaser the whole front to the depth of forth arpents from the Mississippi River, leaving them nothing except what is called in legal phrase the back lands.

Throughout these several changes in the alleged title of the ancestor of the appellants and his immediate heirs, all parties appear to have acquiesced without any complaint. Nor do the appellants now claim any of the front land on the river Mississippi, nor the four leagues, nor the forty or forty-four arpents. Instead of that, their claim is to the back lands, the side lines commencing at a point forty arpents from the Mississippi River and extending back to the river Atchafalaya. Even as reduced the claim is a large one, amounting to perhaps five hundred thousand acres, but it is not more than one-fifteenth part of the original claim, as ppear by the documents exhibited in the transcript.

3. Besides denying the authenticity of the concession, the answer also denies in the most explicit terms that the tract, as described in the evidence, ever extended back to Atchafalaya River.

4. Support to that proposition is derived in the answer by referring to the regulations adopted two years before the second governor under Spanish rule enlarged the front to forty-four arpents, which provide that all grants fronting upon rivers shall be limited to a depth of forty arpents. White's Recopilacion, p. 299, art. 1.

5. That the case is in all respects the same as that previously decided by this court. United States v. D'Auterieve, 15 How. 14, 23.

No record of the concession, say the court in that case, has been produced, and after a thorough examination of the archives, both at New Orleans and in the appropriate offices for the deposit of such records, none can be found. Mention was then made of the proof exhibited in the case, which it seems consisted only of certain historical sketches given to the public of the first settlement of the province under the direction of the Western Company, together with some documentary evidence relating to the plantation of the alleged original donee through his agents, such as powers of attorney and some intermediate transfers of the titles in the charge of the agency. These are given in detail, but the court remarks that unfortunately neither the historical sketches nor the documentary evidence furnishes any information as to the extent of the concession or its boundaries. Speaking to the same point, the court say that the tract claimed as derived from the original donee is without boundaries or location, and the court proceeds to remark that the only description that has been referred to, or which the court has been able to find after a pretty thorough search, even in historical records, is that it was a concession of a large tract upon the right bank of the Mississippi River, opposite Manchac, a point some twenty leagues above New Orleans. We have no evidence of the extent of the concession on the river or the depth back, say the court, or of any land-marks designating the tract, by which it can be regarded as severed from the public domain.

Governor Unzaga, who succeeded the first Spanish officer of that rank, ordered a survey of the tract, and it appears it was made by the public surveyor, and that it was returned and approved in the same year. Special attention to that fact was called in the argument of the prior case, and it was urged that it furnished evidence of an incipient step to establish an incomplete title under our treaty of cession, and the court entered into a full examination of the proposition and the evidence to support it, which consisted chiefly of the field-notes of the survey.

Reference is made to the claim in some of the intermediate conveyances as a plantation or concession by the name of the first agent of the company, or by the name of the 'Bayou Goula village,' the name of a place on the river where the tribe of Indians of that name made their headquarters. Satisfactory evidence is exhibited that the public surveyor surveyed the front to the depth of forty arpents, but it must be remembered that the front of the tract on the river to the depth of forty arpents was given up, and that it was subsequently assigned by the governor to other emigrants, and no part of it is now claimed by the appellants.

Back concessions, it seems, were seldom made, and in no instance of which there appears to be any authentic account, except to the proprietor of the front, and where made uniformly had a depth of forty arpents, reckoning from the rear line of the first concession, but the same form of title appears to have been required in the one case as in the other, and in no case could a fee-simple estate be acquired from the government without the severance of a definite tract from the mass of the public lands under the operation of a complete grant. 4 Op. Att.Gen. 683.

Such  severance might be made by the grant itself, if it contained specific boundaries, or was well defined by courses and distances, or other authentic and definite description of the tract. It is not pretended that either boundaries or courses and distances, or any other authentic or definite description of the tract, was given in the supposed concession. Where such evidence of the location and description of the tract is wanting in the concessions, they may and often have been supplied by what is called a judicial survey, nor is it doubted that an official survey under the order of the governor might have a like effect.

Beyond doubt, such a survey was made of the front on the river; but this court decided, in the case already referred to, that there is not the slightest pretence that the tract as surveyed under that order of the governor extended back further than the usual depth of forty arpents from the river. No support to the theory of the appellants that it extended back to the river Atchafalaya is exhibited in the record. Nor do the field-notes or the proces verbal of the surveyor who made the field-notes and the survey give the proposition the least countenance.

Under our treaty of cession the United States acquired in sovereignty all the lands in the province which had not before been granted by one or the other of the two prior sovereigns and severed as private property from the royal domain. It was incumbent, therefore, upon the appellants to show that the land in question had been so granted by the antecedent authorities, else the United States are entitled to recover it. United States v. King, 7 How. 833, 849.

Subsequent concessions were made by the Spanish authorities within this claim, which, as well as the action of the authorities in resuming the possession of the larger portion of it, show conclusively that no such right as is now claimed by the appellants was recognized by those authorities.

Since the cession of the province, the right of such a claimant is the same as it would have been if the jurisdiction had not been transferred, from which it follows that rejected claims, which had no validity at the date of the treaty, impose no obligation upon the United States as the successor of the foreign sovereign.

Cases of the kind have frequently been before the court, in which the act of Congress authorizing such litigations has been construed and the rights which it confers defined. We adopt the construction given to the act in the last-reported case upon the subject, as follows: 1. That the claimant or those under whom he holds must have been out of possession for twenty years or more. 2. That the land must be claimed by a complete grant or concession or order of survey or other mode of investitute of title in the original claimant by separation of the tract from the mass of the public domain, either by actual survey or defined, fixed natural boundaries or initial points and courses and distances by the competent authority, prior to the treaty of cession. 3. That those conditions do not apply where the title was created and perfected during the period of the actual possession of the government under which the claim is asserted. Titles in fee-simple which were complete when the jurisdiction of the province was transferred to the United States needed no confirmation, as they are fully protected by the treaty of cession. United States v. Percheman, 7 Pet. 51, 88; United States v. Wiggins, 14 id. 334, 349. 4. That the title must be complete under the former sovereign, that is, the land must have been identified by an actual survey with metes and bounds, or the description in the grant must be such that judgment can be rendered with precision by such metes and bounds, natural or otherwise; that nothing must be left to doubt or discretion in its location; and if there was no actual survey previously made which a surveyor can follow, there must be such a description of natural objects for boundaries that he can do the same thing de nov, or, in other words, the separation of the tract from the public domain must not be a mere conjectural separation, but complete, without any element of discretion or uncertainty. Scull v. United States, 98 U.S. 410, 418; Smith v. United States, 10 Pet. 326, 334.

Apply those rules to the case before the court, and it is clear that the decree of the court below must be affirmed. Even if it be conceded that the concession is proved, it is clear that it has no boundaries, nor does it contain any means to determine either the location or the extent of the supposed grant.

Grants of the kind which do not contain any description by which the land can be located, and are not connected with a survey, do not create private property under the treaty of cession. Where the concession contains no lines or boundaries whereby any definite and specific parcel of land was severed from the public domain, the claim of the donee cannot be sustained, it having been repeatedly decided by this court that if the description is vague and indefinite, as in the case before the court, and there is no official survey to give it a certain location, it will create no right of private property which can be maintained in a court of justice. United States v. King, 3 How. 773, 787.

Legal survey will often be sufficient to establish the locality of the tract, and may have the effect to establish its extent; but if the claimant shows no survey under the former sovereign, it lies on him to establish the boundaries of his concession and to identify his land with such certainty as to show what particular tract was segregated from the public domain, and if he fails to do it, then he has no judicial remedy, and if he seeks confirmation he must go to Congress. United States v. Boisdor e, 11 How. 63, 96; Lecompte v. United States, 11 id. 115, 127; United States v. Forbes, 15 Pet. 173, 184.

Attempt is not made to show that the supposed concession contained any definite boundaries or any other means of establishing its locality or of defining its extent, nor is it pretended that the tract as now claimed by the appellants was ever surveyed by the public surveyor antecedent to the treaty of cession to the United States. Conclusive proof to the contrary is exhibited in the opinion of this court delivered by Mr. Justice Nelson, which conclusion is fully sustained by the field-notes of the survey of the front, and by the proces verbal and the figurative plan exhibited in the transcript.

Decree affirmed.


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

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Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/367

 Rh 3. Then there is an elaborate process of eaves-dropping recommended to young women curious to know their husbands' names: a girl would go with her mouth full of water and her hands full of salt to the door of the nearest neighbour's house, or rather to that of the nearest neighbour but one, for I have been carefully corrected more than once on that point. There she would listen, and the first name she caught would prove to be that of her future husband. Once a girl did so, as I was told by a blind fisherman in the South, and heard two brothers quarrelling inside the house at whose door she was listening. Presently the young men's mother exclaimed that the devil would not let Tom leave John alone. At the mention of that triad the girl burst into the house, laughing and spilling the mouthful of water most incontinently. The end of it was that before the year was out she married Tom, the second person mentioned: the first either did not count or proved an unassailable bachelor.

4. There is also a ritual for enabling a girl to obtain other information respecting her future husband: vessels placed about the room have various things put into them, such as clean water, earth, meal, a piece of a net, or any other article thought appropriate. The candidate for matrimony, with her eyes bandaged, feels her way about the house until she puts her hand in one of the aforesaid vessels. If what she lays her hand on is the clean water, her husband will be a handsome man ; if it is the earth, he will be a farmer; if the meal, a miller; if the net, a fisherman, and so on into as many of the walks in life as may be thought worthy of consideration.

careless enough never to have asked the question. I have referred it to Mr. Moore, who informs me that nobody, as I expected, will venture on an explanation, by whom the foot-marks are made.


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Moulor v. Insurance Company

ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania.

This action was brought by Emilie Moulor, widow of Louis Moulor, against the American Life Insurance Company, upon a policy of insurance upon his life issued June 17, 1872. The instrument contains the following stipulation: 'And it is hereby declared and agreed that if the representations and answers made to this company in the application for this policy, upon the full faith of which it is issued, shall be found to be untrue in any respect, or that there has been any concealment of facts, then, and in such case, this policy shall be null and void.' The application contains the following interrogatories and answers, among others: 'Seventh. Has the party' (Louis Moulor) 'ever been afflicted with any of the following diseases? Answer 'yes' or 'no' to each. Insanity? No.-Gourt? No.-Rheumatism? No.-Palsy? No.-Scrofula? No. Convulsions? No.-Dropsy? No.-Small-pox? No. Yellow fever? Yes. Fistula? No.-Rupture? No.-Asthma? No.-Spitting of blood? No. Consumption? No.-Any diseases of the lungs or throat? No.-Or of the heart? No.-Or of the urinary organs? No.'

Interrogatory twelfth. 'How long since the party was attended by a physician? For what disease or diseases?' Answer. 'Not since the year 1847, when he had the yellow fever.'

After these answers the application contained the followi g: 'It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned' (Louis Moulor) 'that this application shall form a part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentations, or concealment of facts, then any policy granted upon this application shall be null and void.'The defence set up at the trial was that some of the answers to the interrogatories contained in the application were untrue, and this defence was attempted to be supported by the testimony of a single witness, Dr. Mathieu. He testified that he had been the family physician of Moulor since 1855; that in 1858 and 1859 he attended Moulor for chronic asthma, manifestations of the first stage of consumption, and also treated him for scrofula. They witness did not testify positively that Moulor had the diseases for which he treated him, but his testimony was that Moulor never learned from him or any other physician, and that he never suspected or had the remotest idea that he was affected with any such diseases; on the contrary, that he always boasted of himself as being a strong, healthy, and robust man. The witness further testified that the asthma Moulor had was the dry, nervous asthma, attended by no expectoration; that there was nothing connected with it to make the patient believe he had it. As to the first stage of consumption, there was no softening of the tubercles, and, therefore, no expectoration of the tuberculous matter. As to the scrofula, that his was very mild diathesis.

This was all the testimony adduced, and now relied upon to prove that the answers in the application were untrue.

There was, however, in evidence the statement of two medical examiners attending the application. They represented the assured as in perfect health, and as having never had any constitutional disease except yellow fever, and a curvature of the spine in his early youth, and as having no predisposition, either hereditary or acquired, to any constitutional disease.

The court instructed the jury to find for the defendant. Judgment having been rendered accordingly, the plaintiff sued out this writ.

Mr. James Parsons for the plaintiff in error.

Mr. Isaac Hazlehurst and Mr. Henry Hazlehurst for the defendant in error.

MR. JUSTICE STRONG, after stating the facts, delivered the opinion of the court.

title: Moulor v. Insurance Company


text: Talk:Moulor v. Insurance Company

title: Talk:Moulor v. Insurance Company


text:
Moulor v. Insurance Company/Opinion of the Court

As the judgment which was entered by the Circuit Court was in accordance with the verdict, the only assignment of error which we have to consider is the first, namely, that the court erred in giving to the jury a binding charge to return a verdict for the defendant.

We are of opinion that the evidence did not warrant a peremptory instruction to the jury to find a verdict in favor of the defendant. The testimony of Dr. Mathieu was parol. Its credibility as well as its effect was for the jury, especially as it was not positive and unqualified that Moulor had had the diseases for which the witness had treated him, and as the statements of the examining physicians which were in evidence tended in some degree to prove that he never had. The jury might, perhaps, have drawn the conclusion from Dr. Mathieu's testimony that there had been only predisposition to the diseases, and not the diseases themselves. He stated in regard to the asthma for which he treated Moulor that it was attended with no expectoration, and that there was nothing connected with it to make the patient believe he had it. In regard to the first stages of consumption, according to his statement there was no expectoration of tuberculous matter. He does not state that there was any cough or pain in the chest. There were, then, no external symptoms of either of the three diseases mentioned. Had scrofula existed, it would seem probable the patient must have known it. Yet the doctor states he did not suspect, or have the remotest idea, that he was affected with either of the diseases. That he was treated for them is not conclusive that he had them. The most skilful treatment sometimes is given when the existence of a particular disease is only suspected, not known, and when afterwards it appears the physician was mistaken.

For these reasons we think the testimony was not such as to justify a withdrawal from the jury of the inquiry whether the answer to the seventh interrogatory was untrue.

Nor was it sufficient to enable the court to conclude, without reference to the jury, that the answer to the twelfth interrogatory was untrue. The entire interrogatory should be considered as one. It was, 'How long since the party was attended by a physician? For what disease or diseases?' To this the answer was, 'Not since the year 1847, when he had the yellow fever.' It may well be that the applicant understood the interrogatory as asking information respecting attendance for a particular disease or diseases and their description, especially as the thirteenth interrogatory sought information respecting the party's usual medical attendant, and the name of that attendant was truly given.

Upon the whole, therefore, we think the case should have been submitted to the jury on the evidence.

Judgment reversed, and the cause remitted for a new trial.


text: Talk:Moulor v. Insurance Company/Opinion of the Court


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Ex Parte Railway Company

PETITION for mandamus.

The facts are stated in the opinion of the court.

The case was argued by Mr. Roscoe Conkling and Mr. Samuel Shellabarger for the petitioner, and by Mr. Sidney Bartlett and Mr. George O. Shattuck, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Ex Parte Railway Company


text: Talk:Ex Parte Railway Company

title: Talk:Ex Parte Railway Company


text:
Ex Parte Railway Company/Opinion of the Court

This is an application, by petition, for a writ of mandamus to the judges of the Circuit Court of the United States for the District of Colorado, commanding them to proceed and give final decree, in accordance with the opinion and mandate of this court, in the suit of the Canon City and San Juan Railroad Company against the Denver and Rio Grande Railway Company. The history of this litigation is set forth in Railway Company v. Alling (99 U.S. 463), to which reference is here made. The present application is supported by an exemplified copy of the proceedings had in the Circuit Court at its May Term, 1879, after the filing therein of the opinion and mandate of this court.

The main contention of the Denver and Rio Grande Railway Company was that the court below had failed and refused to comply with the mandate of this court; that, upon filing the mandate, that company became entitled absolutely, and beyond the discretion of the Circuit Court, to a decree restoring it, at once and unconditionally, to the possession of the Grand Canon of the Arkansas River; dissolving the injunction granted against it in that suit; adjudging that it had the prior right to occupy and use that canon for the purpose of constructing its railroad therein; and requiring the Canon City and San Juan Railway Company, its officers, agents, servants, and employes, to refrain from interfering with or obstructing the Denver and Rio Grande Company in such occupancy and use of the canon, or in the construction of its railroad in and through the same.

It is essential to a proper understanding of the present application to recall some of the leading facts in this litigation. The controversy between these two companies arose out of their respective claims to occupy and use the Grand or Big Canon of the Arkansas River for railroad purposes. The Circuit Court, upon the original hearing, held that prior right and location to be with the Canon City Company, with liberty, however, to the Denver Company to exhibit its bill in any court of competent jurisdiction to compel the former company to so locate and construct its road as to permit to convenient and proper location by the Denver Company of its road, or, if two roads could not be conveniently onstructed and operated in the canon, to occupy the track and roadway of the Canon City Company. While the causes were under submission in this court at its last term, it was represented that, after the rendition of the decree in favor of the Canon City Company, the parties and corporations concerned had entered into binding agreements, whereby the Atchison, Topeka, and Santa Fe Railroad Company, in its own right, and in connection with the Pueblo and Arkansas Valley Railroad Company (the successor of the Canon City Company), had become and was equitably the owner of all the property, rights, and interests of the Denver Company, and entitled to the control of its affairs, business, and suits of every kind. Upon that ground, the Pueblo Company moved that the submission be set aside, and the appeals dismissed, while the Atchison Company moved that it have permission to intervene in this court, and, by its solicitor, consent to such dismissal.

These motions were denied, for the reasons given in the former opinion. It was there said, that if the directors of the Denver Company, in prosecuting the appeals to final judgment, violated any trust committed to their hands, or any agreement which was binding upon the corporation and the minority stockholders, remedy might be sought 'in some court of original jurisdiction, into which, upon proper pleadings, all persons interested may be summoned.' The court also said: 'If, since those decrees were entered, the Atchison, Topeka, and Santa Fe Railroad Company, or the Pueblo and Arkansas Valley Railroad Company have, by valid contracts, acquired a controlling interest in the property, rights, and affairs of the Denver Company, that interest can be asserted by appropriate proceedings, and will not be affected by any thing we may determine upon the issues presented by these appeals.'

Upon the merits of the cases it was held—

That the intention of Congress by the act of 1872 was to grant to the Denver Company a present beneficial easement in the particular way over which its designated routes lay, capable, however, of enjoyment only when the way granted was actually located, and, in good faith, appropriated for the purposes contemplated by the company's charter and the act of Congress;

That when such location and appropriation were made, the title, which was previously imperfect, acquired precision, and by relation took effect as of the date of the grant;

That the Denver Company, by its occupancy of the Grand Canon on 19th April, 1878, for the purpose of constructing its road through that defile, came then, if not before, into the enjoyment of the present beneficial easement conferred by the act of Congress of June 8, 1872, and was entitled to have secured, against all intruders whatever, the privileges or advantages which belonged to that position; That such right was, however, subject to the provisions of the act of March 3, 1875, whereby it was declared, in the interest of the public, that any other railroad company, duly organized, might use and occupy the canon for the purposes of its road, in common with the road first located.

The opinion concluded as follows:--

'It results from what we have said, that the court below erred in enjoining the Denver Company from proceeding with the construction of its road in the Grand Canon. The decree, as entered, can only be sustained upon the assumption that the Canon City Company had by prior occupancy acquired a right superior to any which the Denver and Rio Grande Railway Company had to use the canon for the purpose of constructing its road. But that assumption, we have seen, is not sustained by the evidence, and is inconsistent with the rights given by the acts of Congress to the Denver Company. The Denver Company should have been allowed to proceed with the construction of its road unobstructed by the other company. Where the Grand Canon is broad enough to enable both companies to proceed without interference with each other in the construct on of their respective roads, they should be allowed to do so. But in the narrow portions of the defile, where this course is impracticable, the court, by proper orders, should recognize the prior right of the Denver and Rio Grande Railway Company to construct its road. Further, if in any portion of the Grand Canon it is impracticable or impossible to lay down more than one road-bed and track, the court, while recognizing the prior right of the Denver Company to construct and operate that tract for its own business, should, by proper orders, and upon such terms as may be just and equitable, establish and secure the right of the Canon City Company, conferred by the act of March 3, 1875, to use the same roadbed and track, after completion, in common with the Denver Company.

'The decrees in these causes are, therefore, reversed, with directions to set aside the order granting an injunction against the Denver and Rio Grande Railway Company, and also the order dissolving the injunction granted in its favor, and dismissing its bill. By proper orders, entered in each suit, the court below will recognize the prior right of that company to occupy and use the Grand Canon for the purpose of constructing its road therein, and will enjoin the Canon City and San Juan Railway Company, its officers, agents, servants, and employes, from interfering with or obstructing that company in such occupancy, use, and construction. It may be that, during the pendency of these causes in the court below, or since the rendition of the decrees appealed from, the Canon City and San Juan Railway Company has, under the authority of the Circuit Court, constructed its road-bed and track in the Grand Canon, or in some portion thereof. In that event, the cost thus incurred in those portions of the canon which admit of only one road-bed and track for railroad purposes, may be ascertained and provided for in such manner and upon such terms and conditions as the equities of the parties may require.

'The court will make such further orders as may be necessary to give effect to this opinion.'

It appears from the transcript of the proceedings had in the court below, after the return of the causes, that the Pueblo and Arkansas Valley Railroad Company was permitted, against the objection of the Denver Company, to file supplemental bills, showing that it was the successor of the Canon City Company, and setting out in detail, among other things, the same facts substantially that were relied upon in this court in support of the motions made at the last term to set aside the submission and dismiss the appeals. The prayer of the first supplemental bill was that those facts might be considered, and that upon the hearing the original decrees might be permitted to stand without modification or change.

An order was entered in the Circuit Court, on the 14th of July, 1879, in which, after reciting the mandate of this court, and the reversal of the original decree of July, 1878, it was declared that the said decree theretofore given and allowed 'be vacated and set aside,' with costs to the Denver Company to the date of the filing of the mandate.

It was also adjudged that the right of the Denver Company 'to first locate and construct its railway upon the way mentioned and described in the bill of complaint herein, as against the Canon City and San Juan Railway Company and the Pueblo and Arkansas Valley Railroad Company, and as of the date of the commencement of this suit, and the date of said decree, is recognized and established.'

The decree proceeds:--

'Forasmuch, however, as it is alleged by the said plaintiff [the Canon City and San Juan Railway Company], in certain supplemental bills by it filed herein, that since the said decree the said defendant [the Denver and Rio Grande Railway Company] hath granted, sold, or otherwise yielded to the said plaintiff its right of way in the premises; and forasmuch as it is also alleged by the said plaintiff that since the said decree the said plaintif hath built wholly or in part upon the said way, and upon the line heretofore located by the said defendant, a railway of such gauge and structure as the said defendant hath proposed to build, for which, as to the whole or some part thereof, the said defendant ought in equity and good conscience to pay the reasonable value, and because the value of said railway is at present unknown to the court, no further decree touching the ultimate right of the parties can be given or allowed until the court shall be better advised in the matters aforesaid.

'And it is considered by the court that the relations of the parties of and concerning the line of railway heretofore constructed, or now in process of construction as aforesaid, ought not to suffer any change pending such inquiry touching the facts upon which the further and final judgment and decree of the court will be given; therefore, let each of the parties be enjoined and restrained from doing any act or thing towards building and completing the said line of railway until the further order of the court. Nor shall either of the said parties interfere with the present possession of the other in the said line of railway, way, but each shall remain in the possession of that part which it now holds until the further order of the court. And of this order the parties shall take notice without writ or further service. But if either of the said parties shall desire to construct another line of railway on the same right of way, without interfering with the grade or road-bed constructed by the said plaintiff or the Canon City and San Juan Railway Company, it shall be at liberty to do so.' The order then provided for the appointment of three engineers,-one to be nominated by each of the parties, and one to be selected by the court,-who were required to ascertain and report to the court to what extent, in the construction of two roads from Canon City to the twentieth mile post, must the two companies occupy the same track; whether the Grand Canon of the Arkansas was broad enough to enable both companies to proceed without interference with each other in their respective roads, or if one be already constructed, then whether such constructed line will interfere with or render impracticable the construction of a second line; whether in the narrow portions of the canon there is any place where such a course was impracticable, and if so, whether any road-bed or railroad has been constructed in such place or places, and the cost and reasonable value of same; whether, if two roads shall be built on the Arkansas River from Canon City to the twentieth mile post, to what extent should they be located on opposite sides of the river, and the relative cost thereof; what has been done by the Canon City Company or the Pueblo and Arkansas Valley Railroad Company towards constructing a railroad from Canon City to the twentieth mile post, and what is its value and its location, with reference to the Arkansas, its defiles and canons, and what part of the line so constructed is on the public domain, what part on lands owned by individuals or corporations, and what is the value of each part separately.

Upon a subsequent day of the same term the Denver Company, by petition, suggested that the decree rendered was not full and complete, and that the court had not awarded all the relief to which it was entitled under the opinion and mandate of this court. The Circuit Court, however, held that further and final decree should be deferred until the matters set forth in the decree of July 14, 1879, were determined.

Thus stood the case, in its essential features, when the petition for mandamus was filed in this court. Subsequently, the attention of the court was called to the final decree rendered in the Circuit Court in January, 1880.

After a careful consideration of all that has been said in support of the present application, we are of opinion that a mandamus should be denied. Our former opinion discloses the fact that many matters growing out of this litigation were necessarily left undisposed of, and were remitted to the Circuit Court for such determination as the rights and equities of the parties required under the circumstances existing at the time its action was invoked. We took care to say that nothing determined upon the issues presented upon the original appeals would affect the question as to whether the Atchison, Topeka, and Santa Fe Railroad Company, or the Pueblo and Arkansas Valley Railroad Company, had, subsequently to the decree of July, 1878, become, by valid contract, the owner of the property, or entitled to the control of the rights, affairs, and suits of the Denver Company. That question, in distinct terms, was left open for subsequent adjudication, in a court of original jurisdiction, upon proper pleadings and by appropriate proceedings. We expressly limited our decision to a determination of the rights of the parties as they existed when the decrees of July, 1878, were rendered, and as manifested in the records then before us. Whether, therefore, the supplemental bills, filed upon the return of the causes, raised, in proper form, the question as to the right of the Atchison, Topeka, and Santa Fe Railroad Company, or the Pueblo and Arkansas Valley Railroad Company, under the alleged contracts made with the Denver Company subsequently to the decrees of July, 1878, to control the pending suits so far as they affected the interests of the latter company,-whether the Denver Company, in consequence of said alleged contracts, had lost or waived the right, improperly denied to it by the decree of July, 1878, of occupying the Grand Canon for the purpose of constructing its road,-were matters about which the Circuit Court was at liberty, and was bound to exercise its judicial discretion.

It is contended that the Circuit Court plainly disobeyed our mandate when declining to make such orders as would place the Denver Company, upon the filing of the mandate, in the actual occupancy or possession of the Grand Canon, without reference to, or without awaiting the determination of, the claim which the Canon City Company, or its successor, had on account of money expended in the construction of its road in the Grand Canon, or in that portion of it which admitted of but one road-bed or track. It is true that we said-referring necessarily to the rights of parties as they existed at the date of the decree of July, 1878-that the Circuit Court erred in enjoining the Denver Company from constructing its road in the Grand Canon; and that that company should have been allowed to proceed without obstruction from or interference by the latter company. We, therefore, directed, among other things, that the order granting the injunction should be set aside, and that, by proper orders, the prior right of the Denver Company to occupy and use the canon be recognized. These directions were substantially complied with. The prior right of the Denver Company to locate and construct its railway in the canon was expressly recognized and established by the order of July 14, 1879. It is true that the injunction was not, in terms, dissolved, but the final decree of July, 1878, upon which its efficacy depended, was expressly vacated and set aside. The injunction necessarily fell with the decree. The foundation upon which it rested was destroyed when the decree was annulled. Had our directions gone no farther than to dissolve the injunction against, and to recognize the prior right of, the Denver Company, the present application would rest upon stronger grounds than it does. We could not, however, ignore the fact that, possibly, during the pendency of these causes in the court below, or subsequently to the decree of July, 1878, the Canon City Company, or its successor, had, under the authority or sanction of the court, expended money in the construction of its road-bed and track in some portions of the Grand Canon. 'In that event,' we said, 'the cost thus incurred in those portions of the canon which admit of only one road-bed and track for railroad purposes may be ascertained and provided for in such manner and upon such terms and conditions as the equities of the parties may require.' We gave no direction as to the mode in which such cost should be ascertained, or as to the terms and conditions to be imposed in any provision made for it. Those matters were left for the determination of the court below, according to the principles of equity.

It was undoubtedly competent for that court, in the exercise of its judicial discretion, to have put the Denver Company, upon the filing of the mandate, into immediate possession of the Grand Canon, including the road-bed and track which the Canon City Company had constructed in the narrow portions of that defile. But the propriety of orders to that effect would have depended upon the equities of the parties as they existed at the time the action of the court, in that direction, was sought. It was not in violation of our mandate that the Circuit Court, after setting aside and vacating the decree of July, 1878, and recognizing the prior right of the Denver Company, should suspend further action as to the ultimate rights of the parties until the matters set out in the supplemental bill, and recited in the decree of July 14, 1879, were inquired into.

We recognize, in its fullest extent, the power of this court, by mandamus, to enforce prompt compliance with its mandates; but it is not consistent with the principles and usages of law that we should, in that summary mode, revise the action of inferior courts, as to any matters about which they must or may exercise judicial discretion. 'The writ has never been extended so far, nor ever used to control the discretion and judgment of an inferior court of record acting within the scope of its judicial authority.' Ex parte Taylor, 14 How. 3; Ex parte Many, id. 24; United States v. Lawrence, 3 Dall. 42; Life and Fire Insurance Company of New York v. Wilson's Heirs, 8 Pet. 291; Ex parte Hogt, 13 id. 279; Ex parte Myra Clarke Whitney, id. 404; Ex parte Newman, 14 Wall. 152. The remedy for any errors committed by the Circuit Court, either in the decree of July 14, 1879, or in the final decree of January, 1880, is by appeal to this court. We therefore forbear, at this time, any expression of opinion as to the existence or non-existence of errors in those decrees to the prejudice of either party. We decide nothing more, upon the present application, than that this is not a case which, in our judgment, calls for interposition by a writ of mandamus.

One of the reasons assigned in oral argument why the application for mandamus should be favorably considered, is that by the act of Congress of March 3, 1877, amending the act of June 2, 1872, the time within which the Denver and Rio Grande Railroad Company must complete its road as far south as Santa Fe, will expire on June 2, 1882; in default whereof, it will forfeit, as to the unfinished portion of the road, the rights and privileges granted by the act of 1872. The time limited, it is urged, will expire before an appeal from the final decree of Jan. 2, 1880, can be reached upon the docket of this court in the usual course of its business.

We recognize the force of this suggestion, and feel it to be our duty, under the circumstances, to afford the parties an opportunity to secure an early and final determination of their respective rights in the premises. To that end, upon an appeal being perfected, and upon the filing in this court of a transcript of the record, we will hear a motion to advance this cause for consideration at the present term.

Mandamus denied.

MR. JUSTICE SWAYNE, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY dissented.

MR. JUSTICE FIELD.

I dissent from the order of the court denying the mandamus prayed. When the Circuit Court dissolved the injunction restraining the Denver Company from taking possession of the Grand Canon, there was only a seeming compliance with our mandate, for soon afterwards the court restored the injunction, thus practically defeating our judgment. But as the court has decided to advance the hearing of the appeal from the final decree entered in the court below, on application of the appellants, I will refrain from further comment until that appeal is heard.


text: Talk:Ex Parte Railway Company/Opinion of the Court


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Phillips v. Gilbert

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. George F. Appleby for the appellant.

Mr. Enoch Totten and Mr. S. R. Bond for the appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Phillips v. Gilbert


text: Talk:Phillips v. Gilbert

title: Talk:Phillips v. Gilbert


text:
Phillips v. Gilbert/Opinion of the Court

The controversy in this case is as to the validity of a mechanic's lien claimed by the appellant upon certain houses and lots in the city of Washington. The defendant, Gilbert, in August, 1871, was the owner of the lots, and proposed to erect a row of brick buildings thereon, and agreed with the appellant that the latter should find the materials and build the houses (six in number) for the aggregate price of $32,000, to be paid by instalments as the work progressed. Phillips, the appellant, commenced the houses, and proceeded in their construction until the amount accruing to him was upwards of $12,000; when, the payments being behind, and certain incumbrances on the property not being lifted, as Gilbert had agreed they should be, he, Phillips, on the 23d of May, 1872, filed a mechanic's lien pursuant to the act of Congress then in force. This act, passed Feb. 2, 1859 (11 Stat. 376), declared that any person who should, by virtue of a contract with the owner of any bulding, perform labor or furnish materials for the construction or repair thereof, should, upon filing the proper notice, have a lien upon the building and the lot upon which it was situated. The notice of lien was required to be filed in the office of the clerk of the District Court at any time after the commencement of the building, and within three months after its completion; and the clerk was required to record it. The act declared that such liens should have precedence over all other liens or incumbrances which attached upon the premises subsequently to the time of giving the notice. For enforcing the lien the act provided a summary action at law and an exection against the premises, with a provision, in the eleventh section, that the defendant might file a written undertaking, with surety to be approved by the court, to the effect that he would pay the judgment that might be recovered, and costs, and thereby release the property from the lien. By a subsequent act, passed Feb. 23, 1867 (14 Stat. 403), it was declared that the proceeding to enforce any lien should be by bill or petition in equity, and that the decree, besides subjecting the thing upon which the lien had attached to the satisfaction of the plaintiff's demand against the defendant, should adjudge that the plaintiff recover his demand against the defendant, and have execution as at law.

The bill was filed under this act on the 11th of June, 1873, and set forth the original contract, the performance of the work to the amount (as alleged) of $16,000, of which $5,000 was claimed to be unpaid, the filing and recording of the lien; and the further facts, that Gilbert had executed certain deeds of trust on the property to secure certain loans specified in the bill, and that on the sixteenth day of December, 1872, he had conveyed the entire property to the defendants, Boughton & Moore; and that on the 1st of February, 1873, Boughton & Moore executed six deeds of trust, one on each house and lot, to trustees, to secure six certain notes payable to the defendant, the Connecticut General Life Insurance Company; and prayed an account and a sale of the property, payment, and general relief. The defendants were Gilbert, Boughton & Moore, the Connecticut Insurance Company, and the trustees in the several deeds of trust.

On the 25th of June, 1873, the defendants fi ed an under taking entered into by Gilbert, Boughton, Moore, J. G. Bigelow, and one W. J. Murtagh; Bigelow being, as it appears, the agent of the Connecticut Insurance Company in effecting the loan for which the six last deeds of trust mentioned in the bill were given as security. The substance of this undertaking was, that the undertakers would pay any judgment that might be rendered (including costs) upon or on account of the claim for lien made by the complainant. No further notice of this undertaking seems to have been taken in the proceedings.

Boughton & Moore demurred to the bill, mainly on the ground that the claim for lien was void because made in gross upon six separate lots, without specifically setting forth the amount claimed upon each.

Gilbert filed an answer averring that the complainant had been fully paid for all the materials and work furnished by him; and the Connecticut Insurance Company filed a separate answer, setting up their loan upon the property, the amount of which they stated to be $36,000; and alleging that, when they made this loan, Phillips, the complainant, executed and delivered to them a release of the lots from the effect and operation of his lien; and that upon the faith of this release they made the loan to Boughton & Moore; and they insisted that the complainant was estopped from proceeding on his claim for lien. They further stated that the release, together with the abstract of title with which it was placed, had been lost or mislaid; and they annexed to their answer a paper, which they averred to be a substantial copy of said release. This answer was verified by the affidavit of Bigelow. The alleged copy of release was dated Jan. 10, 1873, and purported to be directed to the clerk of the Circuit Court, requesting him to release the property in question from the mechanic's lien filed by Phillips on the twenty-third day of May, 1872. Thereupon Gilbert filed an amendment to his answer, alleging that he was informed and believed that such a release had been made by the complainant.

Replications being duly filed, the parties went into proofs.

On the 30th of March, 1874, an issue was directed to be tried by a jury to ascertain whether Gilbert was indebted to Phillips for work and materials in the construction of the buildings in question; and if indebted, how much, after deducting all payments and set-offs. Upon this issue the jury, on the 14th of June, 1875, found that Gilbert was indebted to Phillips for the cause aforesaid, after deductions, in the sum of $4,020.

Upon a final hearing upon the pleadings and proofs, the bill was dismissed, and Phillips appealed here.

Besides the question of indebtedness, the principal contest upon the proofs was whether Phillips had executed a release as set up in the answer of the Insurance Company, so as to estop him from claiming any lien upon the premises. That he did execute some paper of the kind was admitted by himself when examined as a witness; but his allegation is that he had bid off the property at a trustee's sale in November, 1872, and that the paper executed by him was given to Bigelow, the company's agent, for the purpose of raising a loan to himself; but that another arrangement was made whereby he gave up his bid, and never received a deed for the property, and abandoned his application for the proposed loan and that Gilbert induced Boughton & Moore to purchase the property, and the loan was made by the Insurance Company to Boughton & Moore; and he, Phillips, was induced to go on with the building of the houses for them on the same terms upon which he had engaged to do it for Gilbert, but upon the distinct understanding that the amount due him, and for which he held his lien, should be paid out of the moneys received from the Insurance Company; that he never intended to give up his lien unless he had got the loan himself, or was paid the amount due him.

Without going into an examination of the testimony on this subject, it is sufficient to say that we have come to the conclusion that the facts were substantially as contended by Phillips, and that the agent of the Insurance Company knew perfectly well that phillips never intended to give up his lien after his negotiation for a loan fell through. We are, therefore, of opinion that he was not estopped by the paper referred to, which seems to have unaccountably disappeared, and the contents and date of which are not clearly proved.

We are satisfied, therefore, that when this suit was commenced this complainant's lien was good against the property for the amount found by the jury to be due to him, unless it was void for the reason state in the demurrer of Boughton & Moore; namely, its being claimed on the whole row of buildings, and not on the buildings separately. We think, however, there is nothing in this objection. The contract was one, and related to the row as an entirety, and not to the particular buildings separately. The whole row was a building, within the meaning of the law, from having been united by the parties in one contract, as one general piece of work.

We are clear, therefore, that a decree ought to be entered in favor of the complainant against Gilbert personally for the amount found to be due to him, with interest from the date of the verdict.

The effect of the undertaking filed in the suit was to release the property from the lien, and to oblige the complainant to have recourse for security of payment to the parties who entered into said undertaking. It would facilitate the ends of justice if a decree could be made at once against the undertakers, as is done against stipulators in admiralty proceedings. But we find no precedent for such a course upon a bond or undertaking given by way of indemnity in proceedings at common law or in chancery, unless it be expressly so stipulated in the instrument, or unless the parties enter into a recognizance, which is matter of record.

Our conclusion, therefore, is, that the decree of the Supreme Court of the district must be reversed, and the cause remanded with instructions to enter a personal decree in favor of the complainant against the defendant Gilbert, for the amount of $4,020, with interest and costs; and that execution issue thereon; and further, to decree that the lien claimed by the complainant was a valid lien at the commencement of this suit; but that, by reason of the undertaking filed in the cause, the buildings and lots mentioned in the pleadings became released and discharged from the lien; and that the complainant have leave to proceed at once upon said undertaking in an action of law to be brought for that purpose; also, that the complainant have a decree for the costs against the defendants Gilbert, Boughton & Moore, and the Connecticut General Life Insurance Company of Hartford; and it is

So ordered.


text: Talk:Phillips v. Gilbert/Opinion of the Court


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United States v. Kimball

ERROR to the Circuit Court of the United States for the Eastern District of Arkansas.

This was an action brought by the United States upon the bond of a collector of internal revenue. The breach assigned was his failure to pay over the balance alleged to be due July 1, 1871, for stamps and other property transmitted to him by the proper officers of the government, and for public moneys which he had collected.

The plaintiff put in evidence a certified account from the books of the Treasury Department showing the balance due. It appears that, on going out of office, the collector turned over to his successor a list of uncollected taxes to that amount. Evidence was introduced tending to show that he had used due diligence to collect them, and applied to the Commissioner of Internal Revenue for a credit to the amount of them. His claim to a credit was rejected by that officer.

The court charged the jury, in substance, that the collector, having made an unsuccessful application to the proper department for the credit, had a right to make claim therefor on the trial, if under the law and the facts he was entitled to it

The court refused to instruct the jury that the receipt of the collector's successor in office showing such lists was not entitled to weight as evidence, unless accompanied by the certificate of the Commissioner of Internal Revenue or the First Comptroller of the Treasury, that due diligence had been used by the collector; and as no such certificate was offered in the case, the receipt should be disregarded by the jury.

The United States excepted to the charge given and to that refused. Judgment was rendered for the defendant, and the United States sued out this writ.

Mr. Assistant Attorney-General Smith for the United States.

There was no opposing counsel.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: United States v. Kimball


text: Talk:United States v. Kimball

title: Talk:United States v. Kimball


text:
United States v. Kimball/Opinion of the Court

In a suit against a collector of internal revenue on his bond for a balance of taxes charged to him under the provisions of sect. 3218, Rev. Stat., he is entitled to a credit for all uncollected taxes transferred by him to his successor in office, if he proves that due diligence was used by him for their collection. The certificate of the Commissioner of Internal Revenue is a condition precedent to a credit by the First Comptroller of the Treasury before suit, but not to a defence upon the facts if a suit is brought.

The presentation to the Commissioner of Internal Revenue by a collector of a claim for credit in his account, and its rejection by him, is such a presentation of the claim 'to the accounting officers of the treasury for their examination,' and disallowance by them, as will permit the collector, under sect. 951, Rev. Stat., to make proof of his claim in a suit brought against him by the United States to collect what is due from him on his account.

Judgment affirmed.


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


text: Meyer v. Hornby

title: Meyer v. Hornby


text: Talk:Meyer v. Hornby

title: Talk:Meyer v. Hornby


text:
Meyer v. Hornby/Opinion of the Court

APPEAL from the Circuit Court of the United States for the District of Iowa.

The facts are sufficiently stated in the opinion of the court.

Mr. James Grant and Mr. Joseph H. Choate for the appeallants.

''Mr. James. T. Lane'' for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court. Appellants, as trustees in a railroad mortgage, brought suit to foreclose it, and made Hornby a defendant. He set up a claim to a mechanic's lien, which was allowed. The mortgagor and owner of the road was the Davenport and St. Paul Railroad Company, incorporated to build a road from Davenport, in Iowa, to St. Paul, in Minnesota. The mortgage, executed May 16, 1872, embraced the entire line of road, and all present and afteracquired property therewith connected. The route was surveyed from Davenport to St. Paul, and work some three miles out from the city of Davenport was commenced and prosecuted in the direction of St. Paul, until about forty-eight miles were completed. When this work was begun, the part of the road surveyed in Scott County, from Davenport to Pine Hill Cemetery, included a difficult and expensive ascent from the river-bottom on which the town is mainly situated, to the prairie land above the bluff. Its construction was for this reason delayed, and a temporary running arrangement made with another company, by which the cars from the country came into the the city. The work on that piece of road was, however, commenced on a contract with Hornby, of date of Oct. 9, 1872, and finished prior to the first day of November, 1873. On the 28th of that month he filed his claim for a mechanic's lien in the proper court. The mortgage wasrecorded in that county, Dec. 24, 1872, but Hornby knew of its existence when he made the contract under which he claims his lien.

Two objections are taken to this lien. One of them is that Hornby himself was a stockholder in the Davenport Railway Construction Company, a corporation which placed the bonds secured by appellants' mortgage on the market, and which gave a guaranty that the local subscriptions and grants should be sufficient to prepare the road for the re eption of the rails, and undertook to make good any deficiency in such local aid. Six gentlemen also signed an agreement to be personally bound to make good the guaranty of the construction company. Hornby was not one of them, and it is not charged that he ever made any personal representations on the subject to purchasers of the bonds or to any one else.

But it is argued that because he was a stockholder of the construction company he is now estopped to set up his lien for work and labor performed, to the detriment of these bondholders. It is difficult to see how any such claim can be sustained. It was the corporation, and not he, who gave the guaranty. If the bondholders have suffered any loss for which that instrument provides a remedy, the corporation is liable to suit for damages. Even then it must be proved that there has been a loss, and that the loss was suffered because the local subscriptions and grants were not sufficient to prepare the whole of said line for the rails. Before he can in any event be held liable, it must be shown that the construction company is liable and cannot respond to that liability.

Nothing of this kind is shown by the record. It might be otherwise if it were proved that he used this guaranty fraudulently and with false statements to negotiate the bonds; but this is not alleged or proven. We see no place for an estoppel in the case.

The other error alleged concerns the fact that the part of the road on which Hornby did his work namely, the three miles between Pine Hill Cemetery and the city, is a separate division and not a part of the principal road, and that no lien as against these mortgagees can be established for that reason.

We have considered this question so fully in the case of Brooks v. Railway Company (supra, p. 443), that it is unnecessary to discuss it here. It is sufficient to say that, under the principle there laid down, that three miles is a part of the improvement, and the lien attaches to the whole of it. The fact that they consented that the court should limit it to the three miles can do appellants no harm.

Decree affirmed.

title: Meyer v. Hornby/Opinion of the Court


text: Talk:Meyer v. Hornby/Opinion of the Court


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Stewart v. Platt

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This is an appeal from a decree whereby the distribution of a fund in court was ordered, and certain conveyances of real estate declared to be void as in violation of the provisions of the bankrupt law.

The record presents the following facts, in addition to those stated in the opinion of the court:--

By an indenture executed April 30, 1867, Alexander T Stewart leased to Simeon Leland, Warren Leland, and Charles Leland, copartners, the Metropolitan Hotel, in the city of New York, for the term of four years from that date, at an annual rent of $79,186, payable in equal monthly instalments. One of the conditions of the lease was that, simultaneously with its dolivery, the rent reserved should be secured by the lessees giving a first mortgage and lien upon their household furniture and chattels of every description then contained in, and used for the purposes of, the hotel; and also that they should every year during the term, and within thirty days prior to the thirtieth day of April therein, renew such mortgage, and execute an additional one, convering all property of the like kind used at its date in the hotel for hotel purposes, including that described in the first mortgage.

The lessees accordingly executed and delivered to Stewart a first mortgage upon the property described, dated April 30, 1876, which they acknowledged June 11. It was filed September 2 in that year in the office of the register of deeds for the city and county of New York. Among its stipulations was one that in case of default in the payment of rent, at the times and in the manner specified in the lease, the lessor might 'take and carry away the said goods and chattels,' dispose of them at the best price he could btain, and apply the proceeds in satisfaction of the rent due and unpaid. As required by the lease, mortgages in renewal, and in addition containing similar conditions, were executed by the lessees during the subsequent years of the term, and filed in the same office.

At the respective dates of the several chattel mortgages, as well as during the entire term of the lease, Simeon Leland resided with his family at New Rochelle, in Westchester County, New York, where he had resided since 1850; Warren Leland resided with his family in the same county, and had resided there since 1857; and Charles Leland then and for the ten or twelve previous years resided with his family at Mt. Vernon, in the same county.

None of the mortgages were filed in the towns where the lessees resided with their families.

In pursuance of an arrangement made in January, 1871, between the lessees and Stewart, the former caused conveyances to be made to the latter as follows: 1st, Certain houses and lots on Crosby and Jersey Streets in New York City, at the price of $10,000, by conveyance from George S. Leland, dated Jan. 23, 1871, acknowledged and recorded in the proper office on the following day; 2d, Certain houses and lots on Prince Street, in the same city, at the price of $14,000, by conveyance from George S. Leland, dated Feb. 9, acknowledged Feb. 13, and recorded Feb. 15, 1871; 3d, An improved farm in the town of Harrison, Westchester County, at the price of $19,500, by conveyance from Warren Leland and wife, dated Feb. 1, acknowledged Feb. 2, and recorded Feb. 24, 1871.

The real estate conveyed by George S. Leland was the property of the lessees or of some of them, the legal title having been transferred to him, as was claimed, for the convenience of the real owners when they should sell to others.

The farm conveyed by Warren Leland and wife was purchased by him in 1866, and in pursuance of his directions conveyed to her in 1868.

There were at the time of these transactions unsatisfied mortgages for large sums upon all the real estate. Stewart took it subject to them, but without assuming to pay the debts thereby secured.

During the months of February and March, 1871, numerous creditors obtained judgments against the lessees, in the courts of New Youk, and sued out executions, which were levied upon the property covered by the chattel mortgages. The judgments were also docketed in the proper offices in New York City and in Westchester County, so as to create a lien upon the real estate of the lessees. The first, in point of time, of these executions was issued February 3, and the last March 29, in that year.

Upon the petition of one of their creditors, filed March 24, 1871, the lessees were duly adjudged bankrupts April 1, 1871. Under an order of the bankrupt court, directing possession to be taken of their property, the marshal took into his custody that covered by the chattel mortgages to Stewart. It was inventoried at $47,253.92, and under subsequent orders of the court was sold at public auction, bringing the sum of $43,469.31. After paying sundry expenses there remained at the date of the decree in the District Court about $26,867.29, subject to distribution.

This suit was commenced in the District Court May 26, 1871, by the assignee in bankruptcy of Simeon, Warren, and Charles Leland, against them, their judgment creditors, Stewart, and others. The bill, besides seeking the distribution of that fund, assails as invalid, not only the several chattel mortgages and the conveyances of the real estate heretofore described, but also the judgments obtained in February and March, 1871. The assignee claimed that he was entitled to the fund in court, and also to the proceeds of the sale of the real estate, for distribution among all the creditors of the bankrupts, without any preference among them, except one Ramaley, who was conceded to be entitled upon his judgment to priority.

The court, upon final hearing, held that the chattel mortgages as well as the conveyances of real estate w re void as against the assignee in bankruptcy. Stewart was ordered to convey the real estate to the assignee, and he was adjudged to be liable for the net rents and profits arising from the same subsequently to the execution of the several conveyances. The court also held that the judgments obtained against the bankrupts within four months preceding the commencement of the bankruptcy proceedings were void as against the assignee, and by its further order prohibited Stewart and the judgment creditors from proving their claims in the bankrupt court.

An appeal was taken to the Circuit Court, pending which Stewart died. His representatives were made parties to the proceedings. The decree of the District Court as to the chattel mortgages and the conveyances of the real estate was affirmed, and reversed only as to the creditors who had obtained judgments against the lessees within four months prior to March 24, 1871. The court held that the several judgments had not been obtained in violation of the bankrupt law, and that the claim upon the fund in court, asserted by the creditors, whose executions had been levied prior to the commencement of the proceedings in bankruptcy, was superior to the respective claims of Stewart and the assignee.

From that decree this appeal is prosecuted by the devisee and the executors of Stewart.

The case was argued by Mr. Roscoe Conkling for the appellants, and by Mr. A. H. Dana and Mr. Dennis McMahon for the appellees.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Stewart v. Platt


text: Talk:Stewart v. Platt

title: Talk:Stewart v. Platt


text:
Stewart v. Platt/Opinion of the Court

The objects of this suit, so far as they concern the appellants, were,--

1st, To obtain the distribution of the fund arising from the sale of furniture and other personal property in use in the Metropolitan Hotel, in the city of New York, at the commencement of the proceedings in bankruptcy. The Lelands were lessees of that hotel under a written lease from A. T. Stewart, dated April 30, 1867, for a term of four years thereafter, at an annual rent of $79,186, payable in equal monthly instalments. Upon the property thus sold Stewart held, as security for rent reserved by the lease, several chattel mortgages executed by the Lelands, the validity of which was questioned in this suit by the assignee in bankruptcy.

2d, To have a decree declaring sundry judgments against the bankrupts within four months prior to the adjudication in bankruptcy, as well as certain conveyances of real estate to Stewart, to be, as against the assignee, invalid under the provisions of the bankrupt law.

The first question to which we will direct our attention relates to those several chattel mortgages.

The District and Circuit Courts concurred in opinion that they were not filed in the office designated by the statutes of New York, and, upon that ground, were ineffectual to give the security and lien contemplated by the parties, and void as against the assignee.

By the laws of New York it is provided that every mortgage or conveyance, intended to operate as a mortgage of goods and chattels, which should not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, should be absolutely void, as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a ture copy thereof, shall be filed as directed in the act. The statute requires such mortgages to be filed in the town or city where the mortgagor, 'if a resident of that State, shall reside at the time of the execution thereof; and if not a resident, then in the city or town where the property so mortgaged shall be at the time of the execution of such instrument. In the city of New York, the mortgage is directed to be filed in the office of the register of said city; in other cities of the State, and in the several towns thereof in which a county clerk's office is kept, in such office; and, in each of the other towns of the State, in the office of the town clerk thereo. Registers and clerks are required to file such instruments, presented to them for that purpose, and indorse thereon the time of receiving same, and keep them deposited in their offices for the inspection of the persons interested.

It is further provided that every mortgage filed in pursuance of the statute should cease to be valid against the creditors of the mortgagor, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of each and every term of one year after the filing of the mortgage, a true copy therof, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him in virtue thereof, shall be again filed in the office of the clerk or register aforesaid of the town or city where the mortgagor shall then reside.

The bankrupts resided with their families in the county of Westchester at the respective dates of the several chattel mortgages, but the business of the firm of Simeon Leland & Co., as lessees of the Metropolitan Hotel, was carried on in the city of New York, and all the property covered by the mortgages was in use in that hotel. The mortgages were filed in the office of the register of deeds for the city and county of New York, and were not filed in the towns where the lessees respectively resided with their families. The contention of learned counsel for the appellants is that the firm was the mortgagor, that its residence or domicile was in the city of New York, and that the manifest object of the statute was met by filing the several mortgages in the city where the firm carried on its business. The question thus presented is within a very narrow compass, and is not free from difficulty. Its solution depends upon the meaning of the word 'reside' employed in the statute. It is to be regretted that we are not guided by some direct controlling adjudication in the courts of New York construing the statute under examination. But no such decision has been brought to our attention. With some hesitation we have reached the conclusion that a chattel mortgage, executed by a frim upon frim property, is void, under the New York statute, as against creditors, subsequent purchasers, and mortgagees in good faith, unless filed in the city or town where the individual members of the firm severally reside. The statute upon its face furnishes persuasive evidence that its framers intended to make a sharp distinction between the place where the property might be at the time of the execution of the mortgage and the place of the mortgagor's residence. If he be a non-resident of the State of New York, the mortgage may be filed in the town or city where the property shall be at the time of the execution of the mortgage. If he be a resident, then his residence, not the actual situs of the property, governs. If these instruments be executed by several resident mortgagors, the statute would seem to require that the mortgage be filed in the towns or cities where the mortgagors at the time respectively reside.

Some stress is laid upon the fact that in each of the mortgages the mortgagors are described as 'of the city of New York.' If that is to be regarded as a representation by them that their fixed abode was in that city, it is obvious that the statute designed for the protection of creditors, subsequent purchasers, and mortgagees in good faith cannot be thus defeated. Their rights depend not upon recitals or representations of the mortgagors as to their residence, but upon the fact of such residence. The actual residence controls the place of filing, otherwise the object of the statute would be frustrated by the mere act of the parties to the injury of those whose rights were intended to be protected. The recital of the residence in the mortgage 'seems to be of no importance, and might for the matter of security be omitted altogether.' Nelson, C. J., in Chandler v. Bunn, Hill & D. Supp. (N. Y.) 167.

A good deal was said in oral argument as to the serious inconveniences which may result from any construction of the statute that requires chattel mortgages executed by a firm upon its property to be filed elsewhere than in the town or city where the property is used, and where the firm business is conducted. On the other hand, it is quite easy to suggest reasons of a cogent character why, in view of the manifest purpose of such legislation, the actual residence of the mortgagors should determine the place of filing. But these are considerations to be addressed more properly to the legislature of New York, with whom rests the power to make such alterations as experience may suggest to be necessary. The statute expressly declares that a chattel mortgage not filed as required by its provisions is void as to creditors and subsequent purchasers and mortgagees in good faith; and the circuit justice well said that the statute had 'imposed a rigid and unbending condition, to wit, a filing in the place where the mortgagors actually reside, as a preliminary to the validity of the mortgage. Whether this condition is wise or not, whether convenient or difficult of performance, is not for the courts to say. The statute exacts it, and the courts must see that it is performed.' Upon this branch of the case, therefore, we concur in opinion with the Circuit Court.

It follows, necessarily, from what has been said, that the Circuit Court rightly adjudged that creditors who obtained judgments and sued out executions against the Lelands, previous to the commencement of bankruptcy proceedings, had prior claims and liens upon the proceeds arising from the sale of the property covered by the chattel mortgages.

But the final decree in the Circuit Court is erroneous in directing the residue of the proceeds of the sale of the mortgage property, after satisfying execution creditors, 'to be paid to the assignee (in bankruptcy) for the purposes of the trust,' and in charging that balance with the payment of the fees due counsel of the assignee.

In Yeatman v. Savings Institution (95 U.S. 764), we held it to be an established rule that, 'except in cases of attachments against the property of the bankrupt within a prescribed time preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is declared by law to be fraudulent and void, the assignee takes the title subject to all equities, liens, or incumbrances, whether created by operation of law or by act of the bankrupt, which existed against the property in the hands of the bankrupt. Brown v. Heathcote, 1 Atk. 160; Mitchell v. Winslow, 2 Story, 630; Gibson v. Warden, 14 Wall. 244; Cook v. Tullis, 18 id. 332; Donaldson, Assignee, v. Farwell, 93 U.S. 631; Jerome v. McCarter, 94 id. 734. He takes the property in the same 'plight and condition' that the bankrupt held it. Winsor v. McLellan, 2 Story, 492.'

The decree below is plainly in contravention of this rule. Although the chattel mortgages, by reason of the failure to file them in the proper place, were void as against judgment creditors, they were valid and effective as between the mortgagors and the mortgagee. Lane v. Lutz, 1 Keyes (N. Y.), 213; Wescott v. Gunn, 4 Duer (N. Y.), 107; Smith v. Acker, 23 Wend. (N. Y.) 653. Suppose the mortgagors had not been adjudged bankrupts, and there had been no creditors, subsequent purchasers, or mortgagees in good faith to complain, as they alone might, of the failure to file the mortgages in the towns where the mortgagors respectively resided. It cannot be doubted that Stewart, in that event, could have enforced a lien upon the mortgaged property in satisfaction of his claim for rent. The assignee took the property subject to such equities, liens, or incumbrances as would have effected it, had no adjudication in bankruptcy been made. While the rights of creditors, whose executions preceded the bankruptcy were properly adjudged to be superior to any which passed to the assignee by operation of law, the balance of the fund, after satisfying those executions, belonged to the mortgagee, and not to the assignee for the purposes of his trust. The latter representing general creditors, cannot dispute such claim, since, had there been no adjudication, it could not have been disputed by the mortgagors. The assignee can assert, in behalf of the general creditors, no claim to the proceeds of the sale of that property which the bankrupts themselves could not have asserted in a contest exclusively between them and their mortgagee. As between the mortgagors and the mortgagees, the chattel mortgages were and are unimpeachable for fraud, or upon any other ground recognized in the bankrupt law.

It results that the court below erred in directing the fees of the assignee's counsel to be paid out of the residue of the fund in court remaining after the claims of execution creditors were satisfies. To that balance the appellants are entitled without diminution, to be applied in payment of the rent remaining unpaid, after crediting thereon $43,500, the agreed valuation of the real estate conveyed to Stewart, and to which we will presently refer in another connection. It was error to charge that balance with the payment of costs of fees of counsel, or any expense incurred by the assignee in bankruptcy in the administration of his trust.

We come now to the questions relating to the several conveyances of real estate made to Stewart in January and February, 1871; all of which were adjudged by the Circuit Court to be void as against the assignee in bankruptcy.

It is important to consider the circumstances under which those conveyances were made. Early in the month of January, 1871, commenced a series of interviews between the lessees and Stewart, brought about, perhaps, by the demand of the latter, through his agent, for the settlement of rent in arrear, which then amounted to about $50,000. The lessees desired a new lease at a reduced rent, while Stewart insisted upon the payment, or a satisfactory arrangement, of the rent due him. They confessed present inability to discharge the indebtedness in any other mode than by conveyances of real estate, which they urged him to take at fair valuation and give a new lease at reduced rent. They, in those interviews, expressed the utmost confidence that such an arrangement would relieve them from all immediate financial burdens, growing out of the hotel business, and enable them to meet promptly thereafter not only instalments of rent, but all other engagements. Stewart, finally, agreed, for the accommodation of his lessees, to accept certain real estate, offered to him at the aggregate price of $43,500, in satisfaction of a like amount of back rent, and, necessarily, in extinguishment to that extent of his mortgages upon the the furniture and other property in the hotel building. He also signified his willingness to renew the lease to the same parties, at the reduced rent of $65,000. In pursuance of this arrangement the lessees, or some of them, caused conveyances to be made to Stewart of the real estate in question, consisting of a farm in Westchester County, and several houses and lots on Crosby, Jersey, and Prince Streets, in New York City.

We are all of opinion that the conveyance, dated Feb. 1, 1871, by Mrs. Warren Leland and her husband of the farm in Westchester County, was unassailable by the assignee upon any ground whatever. That property was a gift from the husband to the wife at a time when his right to make it cannot be disputed. As early as 1868 it was distinctly separated from the mass of his property, and the title made to her for her benefit. There is no proof that the conveyance was with any intention to defraud his then existing or future creditors. Of those whose interests the assignee in bankruptcy here represents, or assumes to represent, none, except perhaps one, were creditors of Warren Leland at the date of that conveyance. The bill alleges that the ba krupts, or some of them, intended to give Stewart a preference over other creditors, and to that end, it is charged, Warren Leland caused the conveyance to be made to his wife of the farm in question, 'owned by the said Warren Leland, but standing in the name of his wife.' But clearly it was not owned by the husband after the execution of the absolute conveyance of 1868. Her rights, by reason of any thing appearing in this record, could not be disturbed by the husband's creditors who became such after the execution of the conveyance to her. She chose, in order to aid her husband, or for other reasons satisfactory to herself, to unite with him in the conveyance to Stewart, thereby surrendering her estate for the benefit of the husband's creditor. Suppose she had not so done, and that the title had remained in her name up to the time of the adjudication in bankruptcy. Would it be contended, for a moment, that the assignee in bankruptcy, or that the creditors of the bankrupts, becoming such after the execution of the conveyance, could have subjected that farm to the debts of Warren Leland against the consent of his wife? This question must, in view of the evidence, receive a negative answer, which shows, conclusively, that the appropriation of the wife's property, by the joint act of herself and husband, to the payment of the debt of a particular creditor of the latter, is not a matter of which the assignee in bankruptcy, or any subsequent creditor of the husband, can rightfully complain. The decree of the Circuit Court declaring the conveyance of that farm to Stewart to be void, and requiring Mrs. Stewart to convey to the assignee in bankruptcy, was, for the reasons stated, clearly erroneous.

It remains to consider that part of the decree which declared the conveyances to Stewart of the houses and lots on Crosby, Jersey, and Prince Streets, in New York City, to be void.

When these conveyances were agreed to be made, Stewart, as already stated, had an undisputed claim for rent in arrear amounting to over $50,000. Under the provisions of the mortgages, a default in the payment of rent having taken place, Stewart, at the time the exchange was determined upon, could have taken actual possession of the mortgaged property and sold it for the best price he could obtain in satisfaction of his claim for rent. His right to possession for such a purpose could not have been questioned by any creditor of the lessees who had not, by previous judgment and execution, acquired a lien upon the mortgage property. Burdick v. McVanner, 2 Den. (N. Y.) 170; Stewart v. Slates, 6 Duer (N. Y.), 83; Hall v. Sampson, 35 N. Y. 274; Ackley v. Finch, 7 Cow. (N. Y.) 290; Langdon v. Buel, 9 Wend. (N. Y.) 80; Patchin v. Pierce, 12 id. 61. Instead of exercising that right,-a course which would have seriously endangered, if it had not utterly destroyed, the business and credit of the lessees, Stewart, at their earnest solicitation, and for their accommodation, accepted real estate at a fair valuation in satisfaction of rent due and unpaid, thereby surrendering and extinguishing his lien to that extent upon the property described in the chattel mortgages. Of the $43,500 at which the real estate received by Stewart was valued, $19,500 represented the farm in Westchester County, which, we have shown, could not have been subjected to the claim of any creditors who became such after the conveyance to Mrs. Leland. In point of fact, therefore, only $24,000 in value of real estate, belonging to the bankrupts, was received by Stewart, while he surrendered his claim and lien for rent to the extent of $43,500. This was, in its substance and effect, a mere exchange of securities, not forbidden by the letter or the spirit of the bankrupt law. In Cook v. Tullis (18 Wall. 332), we said that 'a fair exchange of values may be made at any time, even if one of the parties to the transaction be insolvent. There is nothing in the Bankrupt Act, either in its language or object, which p events an insolvent from dealing with his property, selling it or exchanging it for other property, at any time before proceedings in bankruptcy are taken by or against him, provided such dealing be conducted without any purpose to defraud or delay his creditors or give preference to any one, and does not impair the value of his estate. An insolvent is not bound in the misfortune of his insolvency to abandon all dealing with his property; his creditors can only complain if he waste his estate or give preference in its disposition to one over another. His dealing will stand if it leave his estate in as good plight and condition as previously.' Substantially the same doctrine was announced in Clark v. Iselin, 21 Wall. 360; Sawyer v. Turpin, 91 U.S. 114.

These principles would seem to be decisive of the case under consideration. While there is some conflict in the testimony as to certain matters, we have a strong conviction, from all the facts and circumstances established by the proof, that the transaction by which the real estate, at a fair valuation, was substituted for the lien, of like amount, upon personal property, was without any fraudulent purpose. The substitution was not made to give a preference to Stewart. The belief and hope of the bankrupts, expressed in decided terms to him, were that the substitution or exchange would enable them to remove all financial obstacles of a serious nature. They induced him, by earnest representations, to share these hopes. He delayed or forebore to exercise the right, which, at the commencement of negotiations, he undoubtedly had, of taking the mortgaged property into his custody, and disposing of it in satisfaction of his claim for rent. That the arrangement in question did not substantially impair the value of the bankrupts' estate is abundantly clear. His lien, which was extinguished by the exchange, exceeded, in value, that portion of the real estate, embraced in the conveyances to him, which the creditors of the bankrupts could have reached under their executions. The fact that the mortgaged property brought only $43,469.31, is relied upon to show that the exchange did impair the estate of the bankrupts. This argument proceeds upon the assumption either that when the exchange was determined upon, he had not a lien upon the mortgaged property, as between him and the mortgagors, or that if he had, he would not have enforced it by taking the property into his custody, upon a refusal of the lessees to make some satisfactory arrangement. But such assumption is without support in the law or the proof. Besides, the evidence leads to the conclusion that the mortgaged property sold, at public auction, for less than its fair value. While the witness, who made the inventory and appraisement, testifies that it sold for its full value, the auctioneer, who conducted the sale, testified that with proper appliances it would have brought fifty per cent more. It is certain that it sold for much less than either the lessees or Stewart at the time of their negotiations supposed it to be worth.

For these reasons we are of opinion that the court below erred in adjudging the conveyances to Stewart of the houses and lots on Crosby, Jersey, and Prince Streets, in New York, to be void, requiring Mrs. Stewart to convey the same to the assignee in bankruptcy, and declaring his estate liable for the rents and profits of the same.

Decree reversed, with directions to enter a decree in conformity with this opinion.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE SWAYNE and MR. JUSTICE BRADLEY, delivered the following opinion:--

I concur in the decree of reversal in this case, but I go further than the majority of the court. I think that the chattel mortgages were properly filed with the register in the city of New York. The mortgagors were partners doing business there. They are described in the mortgages as of that city. The property mortgaged was furniture in a hotel situated there, and it is to the records of the city that one would naturally reso t to ascertain whether there were any liens upon it. The domicile of a firm, under the law requiring chattel mortgages to be filed in the county where the mortgagors reside, is, in my judgment, the place where it is located and carries on its business. I am of opinion, therefore, that the chattel mortgages in this case held the property against the judgments of the creditors.

title: Stewart v. Platt/Opinion of the Court


text: Talk:Stewart v. Platt/Opinion of the Court


text:
Goddard v. Ordway (101 U.S. 745)

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Walter D. Davidge and Mr. A. S. Worthington for the appellant.

Mr. Richard D. Merrick and Mr. Martin F. Morris for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Goddard v. Ordway (101 U.S. 745)


text: Talk:Goddard v. Ordway (101 U.S. 745)

title: Talk:Goddard v. Ordway (101 U.S. 745)