text:
United States v. Jordan (113 U.S. 418)/Opinion of the Court

On the twenty-ninth of July, 1882, an act of congress was passed, (22 St. 723, c. 359,) providing 'that the secretary of the treasury be, and he is hereby, authorized and directed to remit, refund, and pay back, out of any moneys in the treasury not otherwise appropriated, to the following named citizens of Tennessee, or the legal representatives of such as are deceased, the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations issued by the secretary of the treasury, under date of June twenty-first, eighteen hundred and sixty-five, and published in special circular number sixteen, from the internal revenue office, of that date, said refunding having been recommended by the secretary of the treasury, under date of of June nineteenth, eighteen hundred and seventy-three; that is to say, to'-followed by the names of 81 persons, and the specification of a sum of money opposite each name, and, among them, this: 'to Edward L. Jordan, two thousand two hundred and ninety dollars; * *  * all of Rutherford county, Tennessee; *  *  * said persons, and each of them, having filed their claims in the office of the commissioner of internal revenue prior to the sixth of June, eighteen hundred and severty-three.' Afterwards, and on the sixth of September, 1882, the acting commissioner of internal revenue transmitted to the secretary of the treasury, for his action, the claim of Edward L. Jordan, to be paid $2,290, under the act. On that letter, under date of September 11, 1882, the acting secretary of the treasury indorsed an order directing that Jordan be paid that sum. He was paid one-half of it, $1,145, on November 2, 1882, but payment of anything more was refused. On the first of December, 1882, he brought suit against the United States, in the court of claims, to recover the remaining $1,145. On December 7, 1882, the secretary of the treasury indorsed on the order of September 11, 1882, the following: 'The foregoing order of September 11, 1882, is construed to mean only that such sums shall be refunded or paid as were collected from the persons within named contrary to the provisions of the regulations issued by the secretary of the treasury under date of June 21, 1865, mentioned in said act, and effect is to be given to said order accordingly.' The court of claims gave judgment for the claimant for $1,145, (19 Ct. Cl. 108,) and the United States have appealed.

At the request of the counsel for the defendants, the court found the following facts: 'Claimant resided in the Second collection district of Tennessee, in Rutherford county. May 5, 1864, an internal revenue assessor was first appointed for this district. August 30, 1864, an assessment division of the district, comprising Rutherford county, was first established. June 6, 1865, the claimant paid the collector of this district $1,145, as annual income tex for the year 1863, under the requirements of the act of July 1, 1862, c. 119, (12 St. 473, 474,) and $1,145 as the special 5 per cent. war income tax for the year 1863, under the requirements of the joint resolution of July 4, 1864, No. 77, (13 St. 417.) June 21, 1865, the secretary of the treasury issued special circular No. 16, containing the following among other regulations: 'Section 46 of the internal revenue act approved June 30, 1864, (13 St. 240,) provides that whenever the authority of the United States shall have been re-established in any state where the execution of the laws had previously been impossible, the provisions of the act shall be put in force in such state, with such modification of inapplicable regulations in regard to assessment, levy, time, and manner of collection as may be directed by the department. Without waiving in any degree the rights of the government in respect to taxes that have heretofore accrued, or assuming to exonerate the tax-payer from his legal responsibility for such taxes, the department does not deem it advisable to insist at present upon their payment, so far as they were payable prior to the establishment of a collection district embracing the territory in which the taxpayer resides. But assessors in the several collection districts recently established in the states lately in insurrection are directed to require returns and to make assessments for the several classes of taxes for the appropriate legal period preceding the first regular day on which a tax becomes due after the establishments of the district. * *  * In the estates of Virginia, Tennessee, and Louisiana, collection districts were some time since established, with such boundaries as to include territory in which it has but recently become possible to enforce the laws of the United States. In those districts the rule laid down above will be so modified as to require the assessment and collection of the first taxes which become due after the establishment of assessment divisions on the particular locality. * *  * '

'June 19, 1873, the secretary of the treasury addressed to the commissioner of internal revenue the following letter, which is referred to in the act of congress:

"TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,

"WASHINGTON, June 19, 1873.

"SIR: I have considered the claim of William Gosling and     others, applicants for refunding taxes alleged to have been      illegally collected, included in schedule No. 243, from your      office, and am of opinion that, under the existing laws, the      taxes paid by these parties were legally paid and should not      be refunded. But I fully recognize the hardship of the case,      and desire that such claimants may receive relief from      congress. I have, therefore, to suggest that you will, in      your next annual report, or on any other occasion which you      may deem more fitting, recommend the passage of a special act      authorizing the refunding of all taxes paid by residents of      the insurrectionary states, which, under department circular      of June 21, 1865, should not have been collected; such      refunding to be made whether the tax in question was      collected before or after the issue of the circular.

"I am, very respectfully,

"WILLIAM A. RICHARDSON,

"Secretary of the Treasury."

It is stated in the brief for the United States that the payment of the $1,145 was refused, by the accounting officers of the treasury, on the ground that the statute authorized payment of only 'so much of the sum named as might be determined at the treasury to represent the amount of taxes assessed and collected contrary to the regulations of the secretary of the treasury named in the act,' and that the sum paid to the claimant was the sum total of the taxes that had been improperly collected from him. From the published decision of the first comptroller in the case, (3 Lawr. Dec. 274,) the ground of refusal appears to have been the one above stated, and the opinion of the court of claims in this case shows that such ground was urged before that court, and rejected. The view taken by the treasury officers was that the annual income tax of $1,145, for the year 1863, under the act of July 1, 1862, became, by the statute, due and payable May 1, 1864, before the assessment division, which comprised Rutherford county, was established, and, under the treasury regulations of June 21, 1865, in circular No. 16, which required the collection only of 'the first taxes which became due after the establishment of assessment divisions,' hat sum of $1,145 was collected contrary to the provisions of those regulations, and was to be refunded, although it was collected before the date of the circular. But the treasury officers decided that the $1,145, paid for the special income tax under the joint resolution of July 4, 1864, and which, by law, did not become due till October 1, 1864, after the establishment of such assessment division, was not collected contrary to the provisions of those regulations, and was not to be refunded.

The court of claims held that the statute did not admit of that interpretation, nor leave open any question for the court or for the accounting officers of the treasury, except the identity of the claimants with the persons named in it; and that its language, taken together, was too clear to admit of doubt, that congress undertook, as it had a right to do, to determine, not only what particular citizens of Tennessee by name should have relief, but also the exact amount which should be paid to each one of them. We concur in this view. The act authorizes and directs the secretary of the treasury to pay to the several persons named the respective sums named. Although the act speaks of the sums as being 'the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations' named, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed. On the contrary, the clear import of the statute is that congress itself determines that the amounts named were collected contrary to the provisions of the regulations. The statement in the statute that the refunding had been recommended by the secretary of the treasury under date of June 19, 1873, refers to the letter of that date, set forth in the findings, which recommends the passage of an act to refund all taxes which, under the circular of June 21, 1865, 'should not have been collected; such refunding to be made whether the tax in question was collected before or after the issue of the circular.' The claimant's two income taxes were both of them paid before the circular was issued. In one sense, therefore, they were not collected 'contrary to the provisions of the regulations;' and, in that sense, it was wrong to refund anything to the claimant, under the language of the act. But with the specification, in the act, of the name and the amount, no such construction can be given to it as would prevent the refunding of anything because the whole amount had been paid before the issuing of the regulations; and, if anything is to be paid, the whole must be. If there is discretion confided to any officer or court to inquire whether the claimant's taxes were collected contrary to the regulations, there would be like discretion to inquire whether such taxes were embraced in the letter of June 19, 1873, and whether the claimant had filed his claim before June 6, 1873. No such construction is applicable to a statute of this character.

It is not an improper inference, from the language of the statute, that congress intended to refund the taxes covered by the recommendation of the secretary of the treasury, in his letter of June 19, 1873. That letter covers taxes described as those which, under the circular, 'should not have been collected,' though collected before it was issued. Congress may, therefore, have included some taxes collected before the circular was issued, but which it thought should not have been, or ought not to have been, collected, in the sense intended by the secretary.

The judgment of the court of claims is affirmed.


text: Talk:United States v. Jordan (113 U.S. 418)/Opinion of the Court

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Page:Travels with a Donkey In The Cevennes.djvu/211

Rh carriage returning to St. Jean du Gard kept hard upon my tracks, and near the summit overtook me. The driver, like the rest of the world, was sure I was a pedlar; but, unlike others, he was sure of what I had to sell. He had noticed the blue wool which hung out of my pack at either end; and from this he had decided, beyond my power to alter his decision, that I dealt in blue-wool collars, such as decorate the neck of the French draught-horse. I had hurried to the topmost powers of Modestine, for I dearly desired to see the view upon the other side before the day had faded. But it was night when I reached the summit; the moon was riding high and clear; and only a few grey streaks of twilight lingered in the west. A yawning valley, gulfed in blackness, lay like a hole in created Nature at my feet; but the outline of the hills was sharp against the sky. There was Mount Aigoal, the stronghold of Castanet. And Castanet, not only as an active undertaking leader, deserves some mention among Camisards; for there is a spray of rose among his laurel; and he showed


text:
Chicago v. Crane

It is set out in the petition that the object of the Des Moines & Minneapolis Railroad Company was to construct and operate a line of railroad from the city of Des Moines, in Polk county, Iowa, to the state line, in the direction of Minnesota; that prior to August, 1870, that corporation had surveyed and located the line of its road from the city of Des Moines, in Polk county, through said county via Polk City, in Madison township, and was proceeding to construct the same; that, to aid it in the construction of its road as thus located, a special tax of 3 per cent. on the taxable property in Madison township, under the existing assessment of said property, was voted to said company, upon the condition that its railroad should be constructed and operated from the city of Des Moines, in Polk county, via Polk City, to Ames, in Story county; that the company did construct its railroad accordingly, and operated the same, making Polk City a station on its main and continuous line between said points, and thereupon the said tax was levied, collected, and paid to the company in accordance with the vote, and amounted to about $17,000; that in 1874 Polk county, through its board of supervisors, and according to law, conveyed to said company all the swamp lands of said county, amounting to about 15,000 acres, on the same condition, that the railroad should be constructed and operated from the city of Des Moines through Polk county, via Polk City, and that said company accepted the grant; and that many citizens of Polk City and of Madison township subscribed and paid for stock in said company upon the same condition.

It is further alleged in the petition that said railroad was constructed and operated on the original line through Polk City, which was the largest and most important station on the railroad between Des Moines and Ames; that in the year 1879 the defendant, the Chicago & Northwestern Railway Company, leased the said line of railroad and came into possession of all the franchises and privileges of the Des Moines & Minnesota Railroad Company, and has changed the line and location of said railroad, and has built and is now operating its main line of road about two miles east of Polk City, on an entirely different line from that upon which it was originally constructed, and in violation of its obligations and duty, contrary to the terms and conditions upon which the said taxes were voted, the said swamp lands conveyed, and said stock subscriptions made, and to the damage and injury of the citizens and property owners in Polk City.

The prayer of the petition is as follows: 'Wherefore, plaintiff demands that defendants be required to reconstruct and operate the main line of said railroad upon the line originally constructed, running from the city of Des Moines, in Polk county, Iowa, north, via Polk City, to Ames, in Story county, Iowa, making Polk City a station on the said main and continuous line of railroad from the city of Des Moines, Iowa, to Ames, Iowa, and that same be constructed and operated in full compliance with the terms and conditions upon which the taxes were voted and paid, swamp lands conveyed, and subscriptions paid as aforesaid, and prays a peremptory writ of mandamus, commanding the said defendants to forth with comply with the above demands, and for such other remedy and relief as may be lawful and proper in the premises.' To this petition there was filed a joint demurrer, and also a joint answer, on June 8, 1883. In the answer, among other things, the following matter of defense is set out:

'And for further answer and defense to plaintiff's petition defendants say: About the year 1879 the Chicago & Northwestern Railway Company leased the Des Moines & Minneapolis Railroad, then constructed and in operation from the city of Des Moines via Polk City to Ames, and thence north to Story City, in Story county, a distance of about (58) fifty-eight miles, and during the said year the Chicago & Northwestern Railway Company became the owner of all the stock, franchises, and privileges of the Des Moines & Minneapolis Railroad Company, and has ever since and now owns, holds, and controls the same, and operates said railway as a part of the system of the Chicago & Northwestern Railway Company. At the time of the construction of said railway, and the acquisition of the same by the Chicago & Northwestern Railway Company, said railroad between Des Moines and Story City was a narrow-gauge road, and during the years 1880 and 1881 the defendant, the Chicago & Northwestern Railway Company, changed the gauge to a standard guage, relaid the same with new steel rails and ties, making the same a first-class road. The narrow-gauge road was not a first-class road in any respect, very little grading having been done, and running mainly over the top of the ground, with the surface nearly in its natural and native condition, there being very few cuts and very few fills, and the road, as a whole, as it then existed, was of very little benefit to any towns along it or to the company which owned it, and the road was wholly unable to earn operating expenses and a reasonable interest upon its cost.

'The Chicago & Northwestern Railway Company extended the line from Story City to Jewell Junction, and thence north through Webster City, Eagle Grove, Algona, and to the state line north at Elmore, where the same connects with a through line, now controlled and operated by the Chicago & Northwestern Railway Company, known as the Chicago, Minneapolis, St. Paul & Omaha Railroad, thus making a through and continuous line, and very direct, from the city of Des Moines to the cities of Minneapolis and St. Paul. The said road is built and constructed as a first-class road, with steel rails and easy gradients, and is capable of and is doing a large amount of through business and traffic. These defendants say that, with a view to making such a first-class road, it becomes absolutely essential and necessary to change the line so the same should run about two miles or two miles and a half east of Polk City, in order to avoid a very heavy grade of about 85 feet to the mile for three miles, going down into Polk City, and about the same distance and grade going out of it. The grade is not only ver heavy, but the curves necessarily very great, and an engine capable of hauling 25 to 30 cars on the present line as constructed east of Polk City could only haul, at most, ten to twelve cars over the line via Polk City. In view of this condition of affairs and the impracticability of operating the road through Polk City, the Chicago & Northwestern Railway Company, in the summer of 1880, made overtures to the people of Polk City to change the line to its present location.

'After many conferences and public meetings in the town of Polk City, the citizens of said town agreed with the Chicago & Northwestern Railway Company that if said company would build a broad-gauge road from a point about two miles north-east of Polk City, into the town, and change the location of their depot to a point more convenient for the citizens of Polk City to do business, both as to passengers and freight; to run two passenger trains from the main line to Polk City, on their way from Des Moines to Ames,-two mixed passenger and freight trains each day; move all freight promptly, with no greater charge for freight or passengers than if Polk City were on the main line; would also build and maintain good and sufficient stock-yards, in the vicinity of the depot in Polk City, to accommodate all shippers, etc.; would transport free all the material from Chicago, or any other point west of that place, to build a bridge over the Des Moines river; would pay the sum of one thousand dollars in money towards the building of said bridge, besides such transportation; and if the company would further perform, all and singular, the stipulations and agreements set out in a certain contract made between the citizens and tax-payers of Polk City and Polk county and the Chicago & Northwestern Railway Company, dated on the second day of September, 1880, as shown by a copy of said contract hereto annexed and made a part of this answer, then and in that case it should be lawful and proper for the defendants to change such line of railway, and take up the narrow-gauge running into Polk City. Said contract was made and signed by thirty-five of the principal tax-payers and residents and business men of Polk City and Madison township, as appears by the said copy annexed.

'In pursuance of the said contract the main line of the defendant's road was changed, as alleged in plaintiff's petition, at an expense to defendant of $15,000, and as herein admitted, and the narrow-gauge track, from a point about three miles south of Polk City to a point about two miles north-east thereof, was then and there, during the year 1881, taken up and a broadgauge built into said Polk City, as provided by said agreement, and from that time hitherto and now, the defendant, the Chicago & Northwestern Railway, has operated a broad-gauge road into said Polk City, in all respects in accordance with the contract herein referred to.

'And these defendants aver that said contract was made publicly, and the said plaintiff, Emanuel H. Crane, and all other citizens of Polk City and Madison township and the county of Polk, in the state of Iowa, were each and all well acquainted and had knowledge of the said contract and all that has been done thereunder, and acquiesced and consented thereto and therein. And defendants aver that the citizens of Polk City, and of Madison township and Polk county, acquiesced and made no objections to the taking up of said narrow-gauge track, and the laying down of the broad-gauge, and the building of the new depot and stock-yards. And these defendants further say that by reason of the said contract, and in compliance with the conditions of the same by the Chicago & Northwestern Railway Company, the citizens, voters, and taxpayers of Madison township and Polk City and Polk county have been greatly benefited, and the town of Polk City placed upon a through have been greatly much more advantageous to them in all business respects than the narrow-gauge railway as built and located through their town.

The defendants further state that the Chicago & Northwestern Railway Company has become and is the sole owner of the stock and road and franchises of the Des Moines & Minneapolis Railroad Company, and that the latter-named company has no longer any interest therein, and has no interest in the subject of litigation mentioned in the plaintiff's petition; that in case any relief can or may be granted to the plaintiff or any other person, the Chicago & Northwestern Railway Company will be solely liable to perform and execute any and all orders of the court in respect tereto; and that said Chicago & Northwestern Railway Company is entirely solvent and able to respond to any judgment or decree which may be rendered in behalf of the plaintiff in this suit.

'Wherefore, defendants say that the plaintiff, the town of Polk City, and Madison township, and the county of Polk, are each and all forever estopped, by reason of the matters hereinbefore stated, to claim or demand the relief prayed by the plaintiff, or any relief whatever, by reason of the change of the line of railways hereinbefore set forth.'

On the same day, June 8, 1883, the Chicago & Northwestern Railway Company filed its petition for a removal of the cause to the circuit court of the United States. After setting out that the matter and amount in dispute, exclusive of costs, exceeds the sum or value of $500, and that the petitioner is a corporation and citizen of Illinois, the petition proceeds as follows: 'That year petitioner's co-defendant, the Des Moines & Minneapolis Railway Company, is merely a nominal party in this suit, for the reason that your petitioner is the owner of all the stock and franchises of the Des Moines & Minneapolis Railway Company, and is the lessee of said railway in perpetuity, charged with the duty of operating said railway, and subject to the payment of all claims or demands of every nature and kind made against said Des Moines & Minneapolis Railway Company, and your petitioner will be solely liable to obey any order made in this cause, and to perform any judgment rendered; that the controversy in this case is wholly between the plaintiff and the defendant, the Chicago & Northwestern Railway Company, who are citizens of different states, and which controversy can be fully determined as between them without the presence of the Des Moines & Minneapolis Railway Company; that your petitioner is the only defendant actually interested in such controversy; that the plaintiff, Emanuel H. Crane, was at and before the time of bringing this suit, and at all times since has been, and still is, a citizen of the state of Iowa and a resident thereof.' The accompanying bond was approved by the state court, and the petition for removal of the cause granted, and thereupon a motion to remand the cause, made in the circuit court of the United States on October 30, 1883, was granted on May 24, 1884, and the cause remanded. To reverse this order and judgment this writ of error is prosecuted.

N. M. Hubbard, for plaintiff in error.

[Argument of Counsel from pages 431-432 intentionally omitted]

C. H. Gatch, for defendant in error.

Mr. Justice Matthews delivered the opinion of the court. He recited the facts as stated above, and continued:

title: Chicago v. Crane


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Page:Popular tales from the Norse (1912).djvu/536

 350 still on board the ship; but she herself rode on her goat up to the witches' castle. When she got there, one of the windows in the gallery was open, and there she saw her sister's head hung up on the window frame; so she leapt her goat through the window into the gallery, snapped up the head, and set off with it. After her came the witches to try to get the head again, and they flocked about her as thick as a swarm of bees or a nest of ants; but the goat snorted and puffed, and butted with his horns, and Tatterhood beat and banged them about with her wooden spoon; and so the pack of witches had to give it up. So Tatterhood got back to her ship, took the calf's head off her sister, and put her own on again, and then she became a girl as she had been before. After that she sailed a long, long way, to a strange king's realm.

Now the king of that land was a widower, and had an only son. So when he saw the strange sail, he sent messengers down to the strand to find out whence it came, and who owned it; but when the king's men came down there, they saw never a living soul on board but Tatterhood, and there she was, riding round and round the deck on her goat at full speed, till her elf locks streamed again in the wind. The folk from the palace were all amazed at this sight, and asked were there not more on board. Yes, there were; she had a sister with her, said Tatterhood. Her, too, they wanted to see, but Tatterhood said "No,"—

"No one shall see her, unless the King comes himself," she said; and so she began to gallop about on her goat till the deck thundered again.

So when the servants got back to the palace, and told what they had seen and heard down at the ship, the King


text: Talk:Chicago v. Crane

title: Talk:Chicago v. Crane


text:
Chicago v. Crane/Opinion of the Court

The right of removal from the state court, which is contested in this case, is founded on the last clause of the second section of the act of March 3, 1875, (18 St. 470; Rich. Supp. 173:) 'And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.' It is accordingly argued in its support that the sole and real controversy disclosed by the pleadings is between the plaintiff below and the plaintiff in error, to which the Des Moines & Minneapolis Railroad Company is a merely nominal party. The action, it is said, is brought in pursuance of section 3373 of the Iowa Code, which is as follows: 'The action of mandamus is one brought in a court of competent jurisdiction to ob ain an order of such court commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or station.' And by section 3379 it is further provided that 'the pleadings and other proceedings in any action in which a mandamus is claimed shall be the same in all respects as nearly as may be, and costs shall be recovered by either party as in an ordinary action for the recovery of damages.' It is also declared, in section 3375, that 'the plaintiff in any action, except those brought for the recovery of specific, real, or personal property, may also, as an auxiliary relief, have an order of mandamus to compel the performance of a duty established in such action. But if such duty, the performance of which is sought to be compelled, is not one resulting from an office, trust, or station, it must be one for the breach of which a legal right to damages is already complete at the commencement of the action, and must also be a duty of which a court of equity would enforce the performance.'

The proposition that the Des Moines & Minneapolis Railroad Company is a merely nominal and not a real and substantial party to the controversy, is maintained on two grounds: (1) That the relief sought against it rests upon the force of the alleged agreements in reference to the location of its line, which constitute the conditions of the taxes voted, lands granted, and stock subscriptions paid to it, and that mandamus will not lie for the purpose of enforcing the specific performance of personal contracts; (2) and that the Des Moines & Minneapolis Railroad Company is not only exonerated, but disabled, from the performance of the duty sought to be enforced against it, if for such it were amenable to the process of mandamus, by virtue of the lease of its road, property, and franchises to the plaintiff in error, that lease being authorized by section 1300 of the Code of Iowa, as follows: 'Any such corporation may sell or lease its railway property and franchises, or make joint running arrangements with any corporation owning or operating any connecting railway, and the corporation operating the railway of another shall, in all respects, be liable in the same manner and extent as though such railway belonged to it, subject to the laws of this state.' But to sustain the first point, it is necessary to decide the controversy in favor of the Des Moines & Minneapolis Railroad Company, one of the defendants sought to be charged, upon its merits. That necessarily affirms that such a controversy exists; and that, in its turn, proves that the circuit court did not err in holding that it had no jurisdiction to entertain it.

It may be a question whether the remedy by mandamus is not larger and more extensive under the Iowa Code than the plaintiff in error admits. And, at any rate, we cannot strike from the record parts of the plaintiff's case as immaterial, without assuming the point to be proved that we have a right to consider its merits at all; for whether they are material may be the substance of the controversy. It may well be that the scope of the plaintiff's case includes the claim that the railway company, having, on the faith of the alleged agreements, made a location of its line, exhausted its corporate power in reference to its establishment; or that, even if it still had corporate discretion to change it, the circumstances alleged, including the agreements made on condition of its original location, may not have created a corporate duty, enforceable by mandamus, to maintain and permanently operate it. These are questions, certainly, which the plaintiff in the action has the right to raise and have tried in any court of his own selection having proper jurisdiction; and they raise a controversy with the Des Moines & Minneapolis Railroad Company, to which it is a necessary party, unless it is relieved from it by the substitution, i its place, of its lessee, by the law under which it transferred its property and franchises to the plaintiff in error. But that section of the statute already quoted has no such effect. It does not discharge the lessor company from any of its corporate liabilities. It merely imposes a liability upon the lessee while operating it; and if this liability extends, as is claimed, to obligations of the lessor antecedent to the lease, such as that sought to be enforced in the present proceeding, there is nothing in the statute to exclude the idea that it is a joint liability, enforceable against both. If it be said that the liability is that of the lessor, but that it is disabled by the lease from its performance, and that that duty is cast by the lease and the law upon the lessee, then the necessity for a joinder in the action is still more apparent for, to obtain a judgment against the plaintiff in error, requiring it to per form a duty devolved upon it merely because it has assumed under the law to perform the duties of another, makes it necessary, upon well-settled rules of pleading, also to obtain a judgment against the latter to declare and determine with conclusive force the existance and limits of the duty to be enforced against its guarantor and substitute. In any view we are justified in taking of the nature of the controversy disclosed by the pleadings in this proceeding, we conclude that both the original defendants are necessary parties to its determination, and that, consequently, the plaintiff in error was not entitled to remove the suit from the jurisdiction of the state court.

The judgment of the circuit court is accordingly affirmed.

title: Chicago v. Crane/Opinion of the Court


text: Talk:Chicago v. Crane/Opinion of the Court


text:
Prentice v. Stearns

This is an action at law to recover possession of real estate and damages for its detention, the plaintiff in error being plaintiff below, and a citizen of Ohio, the defendant being a citizen of Minnesota. The real estate in controversy is described in the complaint as an undivided one-half of real estate situated in the county of St. Louis and state of Minnesota, viz.: 'Lot eighty-two (82) and the east half (E. 2/1) of lot eighty-four, (84,) in block two, (2,) in Duluth proper, third division, according to the recorded plat thereof on file in the office of the register of deeds of St. Louis county, state of Minnesota.' The question is upon the plaintiff's title. The action was tried by the court, the intervention of a jury having been waived by the parties, and the findings of fact and conclusions of law were separately stated. The facts found are as follows:

(1) That the treaty made and concluded on the thirtieth day of September, A. D. 1854, between the United States and the Chippewa Indians, of Lake Superior and the Mississippi, whereby said Indians ceded to the United States certain territory lying adjacent to the head-waters of Lake Superior, contained the following provision, viz.: 'And being desirous to provide for some of his connections who have rendered his people important services, it is agreed that Chief Buffalo may select one section of land at such place in the ceded territory as he may see fit, which shall be reserved for that purpose and conveyed by the United States to such person or persons as he may direct.'

(2) That said treaty was ratified, pursuant to a resolution of the United States senate passed on the tenth day of January, 1855, by the president of the United States on the twenty-ninth day of January, 1855.

(3) That the said Chief Buffalo, pursuant to said provision of said treaty, and on the day of the date thereof, to-wit, September 30, 1854, by an instrument of writing, executed by him and filed in see office of the United States commissioner of Indian affairs at Washington, D. C., selected the land to be conveyed thereunder by the United States, and appointed the persons to whom it was to be conveyed, as follows, viz., after reciting the foregoing provision of said treaty: 'I hereby select a tract of land one mile square, the exact boundary of which may be defined when the surveys are made, lying on the west shore of St. Louis bay, Minnesota territory, immediately above and adjoining Minnesota Point, and I direct that patents be issued for the same, according to the above-recited provision, to Shaw-bwaw-skung, or Benjamin Armstrong,

(4) That said Matthew, Joseph, and Antoine, under date of September 17, 1855, executed and delivered to said Armstrong an instrument assigning to him their right, title, and interest under said appointment and selection of Chief Buffalo.

(5) That said Benjamin D. Armstrong and wife, on September 11, 1856, made, executed, acknowledged, and delivered to the plaintiff herein, a deed of conveyance, a copy of which is hereto attached, marked Exhibit B, and made a part of these findings. That a large portion of the land embraced within the courses and distances of said deed is covered by water, and that portion which is not covered by water in said description is land which Chief Buffalo had in view and intended to embrace in his selection as aforesaid, but does not embrace the land involved in this suit.

(6) That said deed from Armstrong to plaintiff was duly recorded in the county of St. Louis, territory of Minnesota, on the fourth day of November, A. D. 1856.

(7) That the piece or parcel of land, the title to which is involved in this action, is situated in said county of St. Louis, territory (now state) of Minnesota.

(8) That the said Benjamin G. Armstrong and wife, on the twenty-seventh day of August, 1872, executed and delivered to the plaintiff the confirmatory deed, a copy of which is hereto attached, and marked Exhibit C, and made a part of these findings, which deed was duly recorded in the county of St. Louis, state of Minnesota, September 2, 1872.

(9) That the tract of land which Chief Buffalo had designated as his selection on the day of the treaty did not correspond with the section lines when the land came to be surveyed into sections, and the United States land department decided that the Buffalo designation of the land was too indefinite to enable patents to be issued therefor; and, furthermore, the land thus designated by Buffalo was found to be occupied by, and was thereby claimed by, certain Indian traders under said treaty, and after a lengthy correspondence and investigation in respect thereto by the interior and Indian departments, the matter was finally adjusted by said relatives withdrawing their claim to the land so designated by Buffalo and consenting to accept other land in lieu thereof to be selected by the Indian department; whereupon the commissioner of Indian affairs, by its agent, and by the direction of the said interior department, and with the approval of the president, and assent of the said relatives named as aforesaid by said Buffalo, selected certain other lands, aggregating 682 acres, and situated in four different government sections, as shown by diagram hereto attached, and marked Exhibit D, and apportioned the same among said relatives. A copy of the report of the secretary of the interior to the president upon the final selection of said land is hereto attached, marked Exhibit E, and made a part of these findings. That on the twenty-third day of October, 1858, patents for the land so apportioned were duly issued to them by the United States, one of which partents was issued to said Armstrong, and a copy of which is hereto attached, and marked Exhibit F. That the land involved in this suit is a part of the land embraced in said patent to said Armstrong.

(10) That the chief, Buffalo, died in the month of October, 1855, and before the land conveyed by the government to his appointees under said provision of said treaty was finally selected, and without any action on his part under said provision of said theaty subsequent to the appointment of the persons to whom the land was to be conveyed and the conditional selection of the land on the thirtieth of September, 1854, as aforesaid.

(11) That the United States government surveys of the lands ceded by said treaty of September 30, 1854, to the United States had not been made at the date of the said deed from Armstrong to plaintiff, and were not made until the year following the date thereof.

(12) That said Armstrong and wife, by warranty deed duly executed and recorded, dated October 22, 1859, conveyed an undivided half on the lands conveyed to him and the other appointees of Chief Buffalo aforesaid, by the United States by said patent of October 23, 1858, to Daniel S.C.ash and James H. Kelly.

(13) That after said patents were issued to said appointees as aforesaid the said Matthew, Joseph, and Antoine, on March 13, 1859, executed deeds of conveyance of the land which had been so patented to them respectively, to the said Armstrong; which deeds were duly recorded in said St. Louis county, May 17, 1859; and that the said Armstrong and wife, on the thirty-first day of August, 1864, for a valuable consideration, executed and delivered their deed of conveyance of an undivided half of the land so patented to him, and the said Matthew, Joseph, and Antoine, to John M. Gilman, which conveyance was duly recorded in said St. Louis county, September 12, 1864, a copy of which conveyance is hereto attached and marked Exhibit G. That said Gilman took said conveyance without any actual notice of said deed from said Armstrong to the plaintiff of September 11, 1856, or that plaintiff claimed an interest in the land so conveyed to him, said Gilman.

(14) That the defendant herein claims title to the piece or parcel of land in controversy as a grantee of said Gilman, and under and through said deed to said Gilman of August 31, 1864.

(15) That the undivided one-half of the property described in the complaint herein is worth the sum of $10,000.

And the following conclusions of law thereupon:

(1) That the appointment of persons to whom the United States were to convey the section of land reserved by the said provision of said treaty, made by the said Chief Buffalo on the thirtieth day of September, 1854, was a valid and sufficient appointment under said provision, and upon the ratification of said treaty vested in the said Benjamin G. Armstrong and the other appointees named such an interest as the treaty gave to the land so reserved.

(2) That the patent of the United States to Armstrong, and his acceptance of it, is as a valid execution of the treaty on that subject.

(3) That the deed from said Armstrong to plaintiff of date of September 11, 1856, is, in its execution, acknowledgment, and recording, a valid and sufficient deed, and its record is constructive notice of its contents.

(4) That the description in the deed of said Armstrong to plaintiff of September 11, 1856, is insufficient to convey his interest in or title to any other or different tract of land to which he might have been entitled under said treaty than the specific tract described by metes and bounds therein, and that said deed is ineffectual as a conveyance to plaintiff of any interest or title except such as said Armstrong had in or to the land therein particularly described, and that plaintiff thereunder took no title to the land for the possession of which this action is brought.

(5) That the quitclaim deed from said Armstrong to said John M. Gilman, of August 31, 1864, conveyed to the said Gilman such interest and no more as said Armstrong had in the land therein described at the date of said deed.

(6) That the plaintiff is not entitled to recover in this action, and judgment is ordered for the defendant for his costs and disbursements.

The body of the deed from Armstrong and wife, dated September 11, 1856, to the plaintiff, is as follows:

'This indenture, made the eleventh day of September, in the year one thousand eight hundred and fifty-six, between Benjamin G. Armstrong and Charlotte Armstrong, wife of said Benjamin G., of the county of La Pointe, state of Wisconsin, of the first part, and Frederick Prentice, of Toledo, Ohio, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of eight thousand dollars, to us in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have remised, released, and quitclaimed, and by these presents do remise, release, and quitclaim, unto the said party of the second part, and to his heirs and assigns, forever, one undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota, and known and described as follows, to-wit: Beginning at a large stone or rock at the head of St. Louis River bay, nearly adjoining Minnesota Point, commencing at said rock and running east one mile, north one mile, west one mile, south one mile, to the place of beginning, and being the land set off to the Indian chief, 'Buffalo,' at the Indian treaty of September 30, A. D. 1854, and was afterwards disposed of by said 'Buffalo' to said Armstrong, and is now recorded with the government documents, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; to have and to hold the aforesaid premises, with all the privileges and appurtenances to the said premises belonging or appertaining, unto the said party of the second part, his heirs and assigns, forever. And also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances. And the said Armstrong and his wife, party of the first part, for themselves and their heirs, executors, and administrators, do covenant, promise, and agree to and with the said party of the second part, his heirs, executors, administrators, and assigns, that they have not made, done, committed, executed, or suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above-described premises, or any part thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incumbered in any manner or way whatsoever.

'In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.'

And the deed of confirmation made by Armstrong and wife to the plaintiff, August 29, 1872, is as follows: 'Whereas, on the eleventh day of September, in the year one thousand eight hundred and fifty-six, we, Benjamin G. Armstrong and Charlotte Armstrong, wife of aforesaid Benjamin G. Armstrong, conveyed, by a quitclaim deed to Frederick Prentice, of Toledo, Ohio, the undivided one-half part of all our interest in certain lands, situated at or near the head of St. Louis bay, and intended to describe our interest in what is known as the Chief Buffalo tract, at the head of St. Louis bay, Minnesota territory, and then believing that the description in said deed would cover or was the tract that would be patented to us by the United States of America, according to said Buffalo's wishes and a contract we held from the heirs of said Buffalo. But to definitely fix upon the lands designed to be conveyed, it was stated in said deed to be the land set off to the Indian Chief Buffalo at the Indian treaty of September thirtieth, in the year one thousand eight hundred and fifty-four. And, further, I, the said Armstrong, gave a contract on the tenth day of September, in the year one thousand eight hundred and fifty-six, to the said Frederick Prentice, binding ourselves and heirs to give said Frederick Prentice any further writing or instrument he might require.

'And on the first day of July, in the year one thousand eight hundred and fifty-seven, I, Benjamin G Armstrong and Charlotte Armstrong, agreed to, and did, sell to Frederick Prentice the other one-half of said Buffalo tract, for which said Frederick Prentice paid us something over two thousand ($2,000) dollars, and since that time has paid us to our full satisfaction for the whole property. And we agree to, and by these presents confess payment in full for the whole of the above tract, in compliance of the first deed for the one undivided half, and the carrying out of the contract to sell the balance July first, in the year one thousand eight hundred and fifty-seven. This is intended to cover the land deeded by us to the said Prentice in the deed given on the eleventh day of September, eighteen hundred and fifty-six, and recorded in Liber A of Deeds, page 106, at Duluth, state of Minnesota, and the land included in the contract of the first of July, eighteen hundred and fifty-seven, and intended to cover the lands as described in patents from the United States of America to Benjamin G. Armstrong, Matthew May-dway-gwon, Joseph May-dway-gwon, and Antoine May-dway-gwon, and described as follows: To Benjamin G. Armstrong the west half of the south-west quarter, and the lot number five (5) of section twenty-seven, and lot number (3) of section thirty-four, containing together (182 62-100) one hundred and eighty-two and sixty-two one-hundredths acres; and to Joseph May-dway-gwon the south-east quarter of section twenty-eight, containing one hundred and sixty acres; and Antoine May-dway-gwon the east half of the north-east quarter of section twenty-eight, and the west half of the north-west quarter of section twenty-seven, containing one hundred and sixty acres; and to Matthew May-dway-gwon the south-west quarter of section twenty-two, containing one hundred and sixty acres; all of the above being in town fifty north, of range fourteen west of the fourth principal meridian, state of Minnesota; and the three last-named pieces of land have since been deeded by the said Matthew, Joseph, and Antoine May-dway-gwon to Charlotte Armstrong. But previous to the date of said deeds, the above-named Joseph, Matthew, and Antoine May-dway-gwon had assigned or transferred all their right, title, and interest therein to the said Benjamin Armstrong. I, the aforesaid Benjamin G. Armstrong, did sell by deed and contract to Frederick Prentice, which I, the said Charlotte Armstrong, knew at the time; but did not know but that by getting another deed or conveyance after the patents were issued, we could sell the property, but am now satisfied that we had sold and assigned all our right, title, and interest to Frederick Prentice previous to our deeding to any other person or persons, and that we had no right to deed or convey to any other person or persons, as the title to the lands above described was then virtually and by right vested in the said Frederick Prentice, and that the first deed for the one-half, and the contract for the remaining half of said land, with the payment thereon made at the time by the said Frederick Prentice, bound us to give him good and sufficient deeds to said property whenever so demanded; and we do hereby assign and quitclaim all our right, title, and interest, now or at any time held by us, to all the above-described property, in fulfillment of our agreements with the said Frederick Prentice.

'In witness whereof, we have, this twenty-seventh day of August, in the year one thousand eight hundred and seventy-two, affixed our hands and seals.'

The patent of the United States to Armstrong, which covers the land in controversy, is as follows:

'UNITED STATES OF AMERICA.

'To all whom these presents shall come, greeting: Whereas, by the sixth clause of the second article of the treaty between the United States of America and the Chippewa Indians of Lake Superior and the Mississippi, made and concluded at La Pointe, in the state of Wisconsin, on the thirtieth day of September, eighteen hundred and fifty-four, it is stipulated that 'the Onton gon band, and that subdivision of the La Pointe band of which Buffalo is chief, may each select, on or near the lake shore, four sections of land, under the direction of the president, the boundaries of which shall be defined hereafter; and being desirous to provide for some of his connections who have rendered his people important services, it is agreed that the chief, Buffalo, may select one section of land, at such place in the ceded territory as he may see fit, which shall be reserved for that purpose, and conveyed by the United States to such person or persons as he may direct;' and whereas, it appears from a return, dated the twenty-seventh day of September, one thousand eight hundred and fifty-eight, from the office of Indian affairs to the general land-office, that there has been selected and approved for 'Shaw-bwaw-skung, or Benjamin G. Armstrong,' as one of the 'connections' of said chief, Buffalo, the west half of the south-west quarter, and lot number five, both of section twenty-seven, and lot number three of section thirty-four, containing together one hundred and eighty-two acres and sixty-two hundredths of an acre, all in township fifty north, of range fourteen west of the fourth principal meridian, in the state of Minnesota.

'Now, know ye that the United States of America, in consideration of the premises, and in conformity with the clause of the said treaty as above recited: Have given and granted, and by these presents do give and grant, unto the said 'Shaw-bwaw-skung, or Benjamin G. Armstrong,' and to his heirs, the tract of land above described: To have and to hold the said tract, with the appurtenances, unto the said 'Shaw-bwaw-skung, or Benjamin G. Armstrong,' and to his heirs and assigns, forever.

'In testimony whereof, I, James Buchanan, president of the United States, have caused these letters to be made patent, and the seal of the general land-office to be hereunto affixed.

'Given under my hand at the city of Washington, this twenty-third day of October, in the year of our Lord one thousand eight hundred and fifty-eight, and of the independence of the United States the eighty-third.

'By the president:

[Seal.]

'JAMES BUCHANAN.

'By T. J. ALBRIGHT, Sec'y.

'M. GRANGER,

'Recorder of the General Land-office.

'Recorded vol. 2, pages 376, 377.'

''Benj. A. Willis'', for plaintiff in error.

Gordon E. Cole, for defendant in error.

Mr. Justice MATTHEWS, after making the foregoing statement, delivered the opinion of the court:

title: Prentice v. Stearns


text: Talk:Prentice v. Stearns

title: Talk:Prentice v. Stearns


text:
Prentice v. Stearns/Opinion of the Court

The plaintiff in error has assigned errors in several particulars, in the finding of facts, but as there is no bill of exceptions setting forth the evidence, no error of law can be assigned in respect to any finding of fact, and we are necessarily restricted to the question whether, upon the facts as found, there was error in giving judgment for the defendant. An argument is also addressed to us by counsel for the plaintiff in error, in support of the proposition, that, if the deed under which he claims title were not effectual to convey the patented land by reason of mistaken description, equity would relieve the plaintiff by reforming the deed. But, plainly, no such question can arise on this record. The proceeding is not in equity to reform the deed, but is at law to recover possession by virtue of an alleged legal title under it. We are dealing with the legal title alone in this action; any equities supposed to control it are not the subject of present consideration, and must be excluded altogether from the discussion.

The case of the plaintiff in error rests upon the proposition, maintained in argument by his counsel, that the deed of Armstrong and wife to him, of September 11, 1856, is capable at law of being construed, and must be construed, as a valid and effectual conveyance, not of the particular tract of land described by metes and bounds, but of any and whatever section or tract Armstrong was then equitably entitled to, under the trea y, by virtue of the appointment of Chief Buffalo, to be thereafter specifically designated, and the legal title conveyed by the patent to be issued therefor, which, when issued, would inure to the benefit of the plaintiff in error as the previous and first grantee of Armstrong, and clothe him with the legal title to the land therein described. And in this view it is contended that the case falls within the rule of the decisions in the cases of Landes v. Brant, 10 How. 348; Doe v. Wilson, 23 How. 457; Crews v. Burcham, 1 Black, 352.

In Doe v. Wilson, as explained and confirmed in Crews v. Burcham, it was held 'that the reservation created an equitable interest to the land to be selected under the treaty; that it was the subject of sale and conveyance; that Pet-chi-co was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee.' And in the last-named case (Crews v. Burcham) the court say: 'We think it quite clear, if this patent had issued to Berion in his life-time, the title would have inured to his grantee. The deed to Armstrong recites the reservation to the grantee of the half section under the treaty, and that it was to be located by the president after the lands were surveyed, and then, for a valuable consideration, the grantee conveys all his right and title to the same, with a full covenant of warranty. The land is sufficiently identified to which Berion had the equitable title, which was the subject of the grant, to give operation and effect to this covenant in the issuing of the patent within the meaning of the act of congress; that is, the act of May 20, 1836, (5 St. 31.) The act declares the land shall inure to and become vested in the assignee the same as if the patent had issued to the deceased in his life-time.'

In these cases, it will be observed, the land conveyed before the issue of the patent was the same described in and conveyed by the patent, and no question arose, as there does here, as to the identity of the description in the two conveyances. In Doe v. Wilson the court charged the jury, and correctly, as it was held, that 'the description of the land in the deeds from Pet-chi-co to Coquillard and Colerick, from Colerick to Coquillard, and from Coquillard to Wilson, are sufficient to identify the land thereby intended to be conveyed, as the same two sections of land which are in controversy in this suit, and which are described in the patents which have been read in evidence.' 23 How. 462. In the present case, however, the land described in the deed from Armstrong and wife to the plaintiff, of September 11, 1856, is not the same land, in whole or in part, as that described in the patent from the United States to Armstrong. This want of identity, so far as the description by metes and bounds is concerned, is admitted; but it is insisted that this part of the description may and ought to be rejected from the deed of September 11, 1856, as a matter of construction, on the principle of the maxim, 'Falsa demonstratio non nocet,' and that enough would still be left to identify the land conveyed by the deed to the plaintiff with that described in the patent to Armstrong. This, however, is not correct. If the alleged erroneous description were stricken from the deed, what would remain would be as follows: 'One undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota; * *  * being the land set off to the Indian chief 'Buffalo,' at the Indian treaty of September 30, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government docu ments,' etc.

This description, thus remaining, refers to land already at the date of the deed set off to the Indian chief, Buffalo, and described in an existing document in the archives of the government, and cannot possibly, therefore, embrace the tract subsequently selected and designated and described in the patent of October 23, 1858. And the references which must be relied on to furnish any description whatever for the land conveyed by the deed, when applied, result simply in restoring to the deed the particular description by boundaries which for imputed error had for purposes of interpretation been struck out.

The case is not one to which the maxim invoked for the construction of the deed can be applied. That rule of interpretation, which rejects erroneous particulars of description, where what is left sufficiently identifies the subject of the grant, is adopted in aid of the intention of the grantor, as gathered from the instrument itself, read in the light of the circumstances in which it was written. But here it is expressly found as a fact by the court, in reference to the land originally selected by Buffalo, and described in the deed from Armstrong to the plaintiff, 'that the land Buffalo had in view and intended in such designation is not included, nor any part thereof, in the patents subsequently issued by the United States to the relatives of said Buffalo named above,' and 'that a large portion of the land embraced within the courses and distances of said deed is covered by water, and that portion which is not covered by water in said description is land which Chief Buffalo had in view and intended to embrace in his selection as aforesaid, but does not embrace the land involved in this suit.' So that the description of the land in the deed which it is sought to reject, because it is inconsistent with that of the patent, is an accurate and not an erroneous description of the land intended by the parties to be embraced and conveyed by the deed from Armstrong to the plaintiff.

It follows that there is no error in the judgment of the circuit court, and it is accordingly affirmed.


text: Talk:Prentice v. Stearns/Opinion of the Court


text:
Morgan v. Hamlet

S. S. Phillips, for appellant.

U. M. Rose, for appellees.

MATTHEWS, J.

title: Morgan v. Hamlet


text: Talk:Morgan v. Hamlet

title: Talk:Morgan v. Hamlet


text:
Morgan v. Hamlet/Opinion of the Court

This is a bill in equity filed by the appellants, September 3, 1879. The complainants are the administrator de donis non of Samuel D. Morgan, deceased, and the children and heirs at law and widow of the intestate, citizens of North Carolina. The female defendants are the children and heirs at law of John G. Morgan, deceased, sued with their husbands, and all citizens of Arkansas. The case alleged in the bill is substantially as follows:

In 1860 a partnership was formed between Samuel D. Morgan and John G. Morgan, who were brothers, the former advancing the means the latter being bankrupt-for stocking and cultivating a cotton plantation in Arkansas, purchased in the name of the firm, but paid for only in part. Samuel D. Morgan continued to reside in North Carolina. John G. Morgan lived on the plantation in Arkansas, and personally conducted its operations. This he did during several years, including the year 1865, when the plantation was sold, under judicial proceedings, to pay the unpaid purchase money. Samuel D. Morgan died in January, 1864. It is alleged that large profits were made by John G. Morgan, and particularly that after the death of his brother he continued in possession of the partnership property, conducted its business, and made profits amounting to twenty thousand dollars. He rendered no account at any time of the business, and made no settlement of the partnership affairs, but it is charged that he converted the whole of the partnership property and profits to his own use. John G. Morgan, in 1865, took out letters of administration on the estate of Samuel D. Morgan, in Ashley county, Arkansas, in which the plantation and partnership property were situated. The administration was closed in 1872. John G. Morgan died in 1875, the defendants, his heirs at law, having come into possession of the property in his possession at his decease, more than sufficient to satisfy the claim of the complainants. Of the complainants, Samuel T. Morgan became of age September 8, 1876, and William W. Morgan in May, 1878. They never had a guardian, and allege their ignorance of the frauds charged to have been practiced against them by John G. Morgan until in 1879. The prayer of the bill is for an account, etc.

The answer of the defendants, though admitting the fact of such a partnership as alleged, denies that any profits were made, and denies all the allegations of fraud. It also shows that John G. Morgan died in April, 1875, leaving him surviving Emma S. Morgan, his widow, and the defendants, Alice R. Hamlet and Emma G. Abell, and Lula Morgan, an infant, his only children; that letters of administration were issued on his estate by the probate court of Chicot county, Arkansas, in which he lived at the time of his death, on August 6, 1875, to his widow, who acted as administratrix of his estate until October 13, 1875, when she resigned, and the defendant John C. Hamlet was appointed by the same court administrator de bonis non, and qualified and acted as such. And it is relied on as a defense that the demands made in the bill were not authenticated and presented to the administratrix or the administrator de bonis non of John G. Morgan, Deceased, according to law, within two years of the granting of letters of administration on his estate.

The cause was heard on the pleadings and proofs, and on final hearing the bill was dismissed. From this decree the complainants bring the present appeal.

In Arkansas it appears that there is a special statute of limitations governing claims against estates of deceased persons, commonly called the 'Statute of Non-claim.' It is as follows: 'All demands not exhibited to the executor or administrator, as required by this act, before the end of two years from the granting of letters, shall be forever barred.' Dig. Ark. St. 1874, § 98. It has been decided that the statute runs against all creditors, whether resident or non-resident. Erwin v. Turner, 6 Ark. 14. And that all claims fall within the provisions of the statute that are capable of being asserted in a court of law or equity existing at the death of the deceased, or coming into existence within two years after the grant of administration, whether due or not, if running to a certain maturity. Walker v. Byers, 14 Ark. 246. And the effect of a failure to present the claim as prescribed in the statute, is not to let it in against the heirs or devisees, but it is to bar is forever as against all persons. Bennett v. Dawson, 18 Ark. 334; Brearly v. Norris, 23 Ark. 166. And in Public Works v. Columbia College, 17 Wall. 530, in a like case, it was held by this court that the failure to present the claim is, in the absence of circumstances constituting an excuse, fatal to the bill for relief in equity.

It is sought, in argument on behalf of the appellants, to distinguish their case, at least the case of the two infant children of Samuel D. Morgan, from any case within the statute of non-claim, on the ground that at the death of their father his title to the real estate, which constituted the plantation, descended to them as his heirs at law; and thereafter, as to the operations conducted by John Morgan in 1864 and 1865, having no guardian, the latter was in equity their representative and guardian de son tort and trustee, so that upon his death, and until they arrived at age, there was no one competent to make a demand against his administrator, within the terms of the statute. But we are unable to appreciate the force of this supposed distinction. The statute in question contains no exception in favor of claimants under disability of nonage or otherwise; the claim of the complainants against John G. Morgan was adverse to his administrator, although it may have originated in consequence of a relation of trust; and there is no ground, that we are able to understand, on which it can be excepted out of the operation of the statute in question. Their claim was equally against the administrator of John G. Morgan, whether the latter be considered as the defaulti g partner of themselves or of their father. Whatever its description, it was a claim against the estate of John G. Morgan, and for which his personal representative was in the first instance liable; and the statute is a bar to every such claim, unless presented within the time prescribed. On this ground the decree of the circuit court is affirmed.

title: Morgan v. Hamlet/Opinion of the Court


text: Talk:Morgan v. Hamlet/Opinion of the Court


text:
Chase v. Curtis

The complaint in this action, after alleging that the plaintiff, who is plaintiff in error, was a citizen of Pennsylvania, and the defendants citizens of New York, proceeds as follows:

'Second. That at the times hereinafter mentioned the defendants were trustees of the Union Petroleum Company of New York.

'Third. That the said company is, and at the times hereinafter mentioned was, a corporation organized pursuant to an act of the legislature of the state of New York, entitled 'An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,' passed on the seventeenth day of February, 1848, and the amendments thereto, its principal place of business being in the city of New York.

'Fourth. That the said plaintiffs brought their plea of trespass on the case against the said Union Petroleum Company of New York in the court of common pleas for the county of Venango, in the state of Pennsylvania, in which the said Union Petroleum Company duly appeared, and that the said action was thereafter, and on or about the ninth day of September, 1873, on the petition of the said Union Petroleum Company, verified by the affidavit of Abijah Curtis, one of the defendants above named, removed to the United States circuit court for the Western district of Pennsylvania. And that on the thirtieth day of July, 1874, and before the time for filing the annual report hereinafter mentioned, the above-named plaintiffs duly recovered a judgment in the said action against the said Union Petroleum Company of New York in the circuit court of the United States in and for the Western district of Pennsylvania, by the judgment and consideration of said court having jurisdiction therein, and of the said Union Petroleum Company of New York, for forty thousand five hundred dollars ($40,500.00) damages, and three hundred and twenty-eight dollars and ninety-seven cents ($328.97) costs, which judgment was duly given, and still remains in full force and effect, not satisfied or annulled, and no art thereof has been paid.

'Fifth. That the said Union Petroleum Company of New York did not within twenty (20) days from the first day of January, 1875, make and publish a report as required by law in such case made and provided, signed by its president and a majority of its trustees, and verified by the oaths of the president or secretary thereof, and did not file the same in the office of the clerk of the county where the business of the company was carried on, to-wit, the county of New York; nor have they made, published, signed, verified, or filed any such report whatsoever as by law required, but have wholly failed so to do.

'Wherefore, the plaintiffs demand judgment against the above-named defendants in the sum of $40,828.97, with interest on $40,500.00 from the thirtieth day of July, 1874, and on $328.97 from the third day of October, 1874, besides the costs and disbursements of this action.'

To this complaint the defendants severally demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment rendered in favor of the defendants, dismissing the complaint, to reverse which this writ of error is prosecuted.

The statute on which the action is founded is as follows, (Laws N. Y. 1875, c. 510, passed June 7, 1875:)

'Section 1. The twelfth section of the 'Act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,' passed February 17, 1848, as said section was amended by chapter 657 of the Laws of 1871, is hereby further amended, so that section 12 shall read as follows:

'Sec. 12. Every such company shall, within twenty days from the first day of January, if a year from the time of the filing of the certificate of incorporation shall then have expired, and if so long a time shall not have expired, then within twenty days from the first day of January in each year after the expiration of a year from the time of filing such certificate, make a report, which shall be published in some newspaper published published in said town, city, or village, then in some newspaper published nearest the place where the business of the company is carried on,-which shall state the amount of capital, and of the proportion actually paid in, and the amount of its existing debts; which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on; and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made. But whenever, under this section, a judgment shall be recovered against a trustee severally, all the trustees of the company shall contribute a ratable share of the amount paid by such trustee on such judgment, and such trustee shall have a right of action against his co-trustees, jointly or severally, to recover from them their proportion of the amount so paid on such judgment: provided, that nothing in this act contained shall affect any action now pending.'

H. J. Scudder and G. A. Black, for plaintiff in error.

[Argument of Counsel from pages 455-457 intentionally omitted]

G. P. Lowrey, for defendants in error.

MATTHEWS, J.

title: Chase v. Curtis


text: Talk:Chase v. Curtis

title: Talk:Chase v. Curtis


text:
Chase v. Curtis/Opinion of the Court

It is the well-settled rule of decision, established by the court of appeals of New York in numerous cases, that this section of the statute, to enforce which the present action was brought, is penal in its character, and must be construed with strictness as against those sought to be subjected to its liabilities. Merchants Bank v. Bliss, 35 N. Y. 412; Wiles v. Suydam, 64 N. Y. 173; Easterly v. Barber, 65 N. Y. 252; Knox v. Baldwin, 80 N. Y. 610; Veeder v. Baker, 83 N. Y. 156; Pier v. George, 86 N. Y. 613; Stokes v. Stickney, 96 N. Y. 323. In the case last cited the action authorized by it was held to be ex delicto, and that it did not survive as against the personal representative of a trustee sought to be charged. In Bruce v. Platt, 80 N. Y. 379, it was said: 'It is settled, by repeated decisions applicable to this case, that the statute in question (Laws 1848, c. 40, § 12) is penal, and not to be extended by construction; that in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but that every fact necessary to establish their liability must be affirmatively proved;' citing Garrison v. Howe, 17 N. Y. 458; Miller v. White, 50 N. Y. 137; Whitney Arms Co. v. Barlow, 63 N. Y. 62. The rule of construction in reference to this and similar statutory provisions has been heretofore adopted and applied by this court. Steam-engine Co. v. Hubbard, 101 U.S. 188; Flash v. Conn, 109 U.S. 371; S.C.. 3 SUP. CT. REP. 263.

In the case last mentioned this court, following the court of appeals of New York in the case of Wiles v. Suydam, 64 N. Y. 173, showed the distiction between the liability of stockholders for the debts of the corporation, under a section of the same act, making them severally individually liable for the debts and contracts of the company to an amount equal to the amount of stock held by them, respectively, until the whole amount of the capital stock fixed and limited by the company has been in, and the liability imposed upon the trustees by the section now under discussion. It was held that the former was a liability ex contractu, enforceable beyond the jurisdiction of the state, and that the statute should be construed liberally in furtherance of the remedy; that the latter was for the enforcement of a penalty, and subject to all the rules applicable to actions upon statutes of that description. The distinction is illustrated and enforced in Hastings v. Drew, 76 N. Y. 9, and Stephens v. Fox, 83 N. Y. 313.

The precise question involved here was decided by the court of appeals of New York in the case of Miller v. White, 50 N. Y. 137. In that case the complaint set forth the recovery of a judgment against the company, but not the original cause of action against it, on which the judgment was founded. The defendant moved for a dismissal on this ground, which was refused, and judgment was rendered in favor of the plaintiff on the production in evidence of the judgment roll. This was held to be erroneous on the ground that the judgment was not competent as evidence of any debt due from the corporation, and that no action could be maintained thereon against the trustees under this section of the act. Judge PECKHAM, delivering the unanimous opinion of the court, said: 'It will be perceived that this is a highly penal act, extremely rigorous in its provisions. It is absolute that the trustees shall be liable for all the debts of the company, if the report be not made, no matter by whose default. If one of the trustees did all in his power to have it made, yet if the president, or a sufficient number of his co-trustees to constitute a majority, declined to sign it, or if the president and secretary declined to verify it by oath, the faithful trustee seems to be absolutely liable as well as those who refuse to do their duty.' It was accordingly held, 'that, as against these defendants, the judgment did not legally exist, as they were neither parties nor privies to it. * *  * It is not a judgment as to these defendants; no action could be maintained thereon against them. * *  * Nor is the judgment prima facie evidence of the debt as against these defendants.'

This doctrine was repeated and reaffirmed by the same court in Whitney Arms Co. v. Barlow, 63 N. Y. 62-72. In that case the court said: 'The debt must be proved by evidence competent against the defendants. The facts upon which the debt is founded must be proved. The naked admissions of the corporation, or judgment against the corporation, are not evidence against the trustees. They are res inter alios acta; but when facts are proved which would establish the existence of a debt against the corporation, the liability of the trustees for the debt follows upon the proof of the other facts upon which the liability is made by statute to depend.'

The case of Miller v. White, ubi supra, has never been overruled nor questioned by the New York court of appeals. On the contrary, it has been repeatedly and expressly cited and approved, and either followed or distinguished from the case under decision in the following cases: Rorke v. Thomas, 56 N. Y. 559-565; Hastings v. Drew, 77 N. Y. 9-15; Stephens v. Fox, 83 N. Y. 313-317; Knox v. Baldwin, 80 N. Y. 610-613; Bruce v. Platt, Id. 379-381.

It is attempted, however, in argument to distinguish the present case from that of Miller v. White, ubi supra, upon the facts, so as to except this from the rule of that decision. In the case of Miller v. White, ubi supra, the judgment sued on was not recovered until after the alleged default on the part of the defendants, as trustees, in filing their report; whereas, in the present case, the default is alleged to have occurred after the recovery of the judgment sued on. But, in Miller v. White, the plaintiffs did aver defaults occurring after the rendition of the judgment, although none were proved, except one, occurring before it was recovered; and the court said, (50 N. Y. 140:) 'The right of action in this case arose, if ever, at the expiration of the twenty days from the first day of January, 1865. At that time the judgment had no existence. It was not recovered until June, 1866.' But this language plainly shows that the very point of the decision was that no right of action could arise upon the judgment itself, but upon the debt alone, on which the judgment was founded; and, as to this, it is, as we have already seen from other parts of the opinion, expressly declared that the judgment was, as against the trustees, evidence neither conclusive nor prima facie of the existence of a debt due from the corporation, for the payment of which they could be charged.

Upon this point, it is further said in argument that it is reduced to a question of evidence, and that the rules of evidence enforced in the courts of a state do not necessarily govern courts of the United States, although sitting in the same state. However this may be in otehr cases, or where the laws of the United States prescribe rules of evidence for their own tribunals, it is not true that the courts of the United States, in a special statutory proceeding, would give to a judgment of a state court any other or greater effect, either as matter of evidence or as ground of action, than must be lawfully given to it in the courts of the state, whose laws are invoked to enforce it.

It is, however, further urged upon us in argument that in cases like the present, which is shown by the record and admitted to be founded on an action on the case for a tort, the judgment against the corporation must be evidence of the debt ex necessitate. On this head the language of counsel in their printed argument is as follows: 'The action was for trespass on the case, for a tort, (entering upon and taking oils from the lands of the plaintiff,) which was unliquidated except by the verdict, which possibly contained an allowance in the nature of punitive damages. It was impossible of exact computation, containing allowances for costs provable in no other way. It would be absurd, unreasonable, and productive of uncertainty and confusion, to require the submission to another jury of the facts which led to this verdict, for if they found a less amount it is palpable that a part only of the debt of the company would be rec vered against these defendants, who are liable for all the debts of the company. If they gave a larger verdict, these defendants would be the first to complain. Under the statute they are severally as well as jointly liable. Each one could be sued apart from the others, and if one trustee is sued alone, all the trustees shall contribute a ratable share of the amount paid on such judgment. If in each suit against each trustee the whole evidence of the original claim had to be gone into and separate verdicts rendered, which might be for very dissimilar amounts, the contribution would become a matter more involved than the original claim; as the theory on which the judgment is made conclusive is that, as the parties to it have had their day in court and have exhausted their proofs, they are thereby estopped from denying its validity.'

But if this proves anything it proves too much, and instead of showing the thing to be proved, that the judgment is conclusive evidence of a debt, it establishes, on the contrary, that a liability on the part of the corporation for a tort, though afterwards reduced to judgment against it, is not a debt of the corporation, even when in judgment, within the meaning of the statute imposing upon the trustees the penalty sought to be enforced in this action for not making and publishing an annual report showing, among other things, the amount of its existing debts. For, keeping in view the statement now urged by counsel, of the impossibility, in advance of liquidation by the verdict of a jury, of even approximately, much less accurately, stating the amount of such liability, can it be supposed that the duty to do so is devolved upon the trustees, within either the letter or spirit of this statute, under penalty of becoming personally liable to pay whatever judgment may be thereafter rendered on account thereof against the corporation? Surely not. Such claims are not within the contemplation of the act. The mischief to be prevented by its requirements has no relation to liabilities of that description. The creditors to be protected are those only who become such by voluntary transactions, in reference to which, for their benefit, the information becomes important as to the debts of the company.

The precise point does not appear to have arisen under this act, so as to have become the subject of a decision by the New York court of appeals. But it seems to be virtually decided in Heacock v. Sherman, 14 Wend. 59. That was an action on the case for the recovery of damages against the stockholders of a corporation, occasioned by not keeping in repair a bridge, the liability arising, as it was alleged, upon the eighth section of the act incorporating the Buffalo Hydraulic Association, (St. N. Y. 1827, p. 45,) which was as follows:

'That the stockholders of the said corporation shall be holden jointly and severally to the nominal amount of their stock for the payment of all debts contracted by the said corporation or by their agents; and any person or persons having any demand against the said corporation, may sue any stockholder or stockholders in any court having cognizance thereof, and recover the same, with costs, provided that no stockholder shall be obliged to pay more in the whole than the amount of the stock he may hold in the said company at the time the debt accrued.' Mr. Justice NELSON, delivering the opinion of the court, said: 'The term 'demand' is undoubtedly broad enough, if it stood alone, to embrace the claim of the plaintiff. * *  * We must, however, look at the whole section, and the connection in which it stands, in order to fix its meaning in this case. The stockholders, in the first place, are made jointly and severally holden for the payment of all debts contracted by the corporation or by their agents. The liability is here declared; it is new and unknown to the common law, and is in terms limited to demands ex contractu. The residue of the section was not intended to extend the liability thus declared, but is in furtherance of the remedy. * *  * But the proviso to the section is conclusive upon the point. Any person having a demand against the corporation is authorized to sue any stockholder in any court, etc., 'provided that no stockholder shall be obliged to pay more in the whole than the amount of the stock he may hold in said company at the time the debt accrued;' thereby clearly qualifying the enlarged meaning of the word 'demand,' and showing satisfactorily that it was used by the legislature to denote a demand arising upon contract. Damage arising upon tort is not a debt accrued, within any reasonable construction of that term. It is apparent, as well from a view of the whole section as from an analysis of its parts, that the intent of the framers of it was only to make the stockholders individually responsible for the debts of the company.'

This reasoning and conclusion, as applied to the present case, is not weakened, but rather strengthened, by the language cited and relied on by counsel in support of his proposition, from the opinion of Mr. Justice STORY in Carver v. Braintree Manuf'g Co. 2 Story, 448, construing a Massachusetts statute, enacting that 'every person who shall become a member of any manufacturing corporation shall be liable in his individual capacity for all debts contracted during the time of his continuing a member of such corporation.' He there admits that debts, in the strict sense of the term, include only contracts of the party for the payment of money and nothing else; but, feeling required to construe the statute broadly, as a remedial statute, he gave to the word 'debts' a meaning, not unusual, as equivalent to 'dues;' and to the word 'contracted,' a meaning, which, though more remote, he said, was still legitimate, as equivalent to 'incurred;' so that the phrase, 'debts contracted,' in that sense, would be equivalent to 'dues owing' 'or liabilities incurred;' and would, therefore, cover unliquidated claims arising from torts. But, as we have already seen, the statute involved in this discussion is not a remedial statute, to be broadly and liberally construed, but is a penal statute, with provisions of a highly rigorous nature, to be construed most favorably for those sought to be charged under it, and with strictness against their alleged liability. Under such a rule of construction its language is limited, by its own terms, to a liability on the part of the trustees to debts of the corporation existing and arising ex contractu.

It is finally insisted that a judgment against the corporation, although founded upon a tort, becomes ipso facto a debt by contract, being a contract of record, or a specialty in the nature of a contract. But we have already seen that the settled course of decision in the New York court of appeals rejects the judgment against the corporation as either evidence or ground of liability against the trustees, and founds the latter upon the obligation of the corporation on which the judgment itself rests. And it was decided by this court in the case of Louisiana v. New Orleans, 109 U.S. 285, S.C.. 3 SUP. CT. REP. 211, that a liability for a tort, created by statute, although reduced to judgment by a recovery for the damages suffered, did not thereby become a debt by contract in the sense of the constitution of the United States forbidding state legislation impairing its obligation, for the reason that 'the term 'contract' is used in the constitution in its ordinary sense as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts. Mutual assent to its terms is of its very essence.' The same definition applies in the present instance, and excludes the liability of the defendants, as trustees of the corporation, for its torts, although reduced to judgment.

We find no error in the judgment of the circuit court, and it is accordingly affirmed.

title: Chase v. Curtis/Opinion of the Court


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Page:Travels with a Donkey In The Cevennes.djvu/210

192 reading, embrace it in spirit and truth, and find wrong as wrong for me as for the best of other communions. The phylloxera was in the neighbourhood; and instead of wine we drank at dinner a more economical juice of the grape—la Parisienne, they call it. It is made by putting the fruit whole into a cask with water; one by one the berries ferment and burst; what is drunk during the day is supplied at night in water; so, with ever another pitcher from the well, and ever another grape exploding and giving out its strength, one cask of Parisienne may last a family till spring. It is, as the reader will anticipate, a feeble beverage, but very pleasant to the taste.

What with dinner and coffee, it was long past three before I left St. Germain de Calberte. I went down beside the Gardon of Mialet, a great glaring watercourse devoid of water, and through St. Etienne de Vallée Française, or Val Francesque, as they used to call it; and towards evening began to ascend the hill of St. Pierre. It was a long and steep ascent. Behind me an empty


text: Talk:Chase v. Curtis/Opinion of the Court


text:
St. Louis, Iron Mountain & Southern Railway Co. v. Berry (113 U.S. 465)

This was a writ of error to review the action of the Supreme Court of Arkansas in refusing to restrain officers of that State from levying a tax on property of the plaintiff in error. The grounds on which exemption from taxation was claimed, and on which a Federal question was raised, are stated in the opinion of the court.

Mr. J. H. McGowan, Mr. A. T. Britton, Mr. A. B. Browne, and Mr. John F. Dillon for plaintiff in error.

Mr. U. M. Rose for defendants in error.

MR. JUSTICE MATTHEWS delivered the opinion of the court.


text: Talk:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (113 U.S. 465)