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Farni v. Tesson

Error to the Circuit Court of the United States for the northern district of Illinois.

Tesson & Dangen recovered a judgment against Bontcum and Carrey in the Circuit Court of Peoria county, Illinois, on the 12th of September, 1857, for $8,000. On the same day an execution was issued directed to Woodford county, and a levy was soon after made on real and personal property. Bontcum and Carrey filed a bill on the equity side of the court for an injunction to stop further proceedings under the judgment, and the injunction was directed to issue according to the prayer of the bill, 'upon the complainants entering into bond in the penal sum of sixteen thousand dollars with Christian Farni and Peter Farni, conditioned according to law.' A bond was accordingly executed, in which the two Farnis with Bontcum and Carrey were the obligors, and Tesson, Dangen, Tuber, Garesche, and Miner the obligees. This bond, it was conceded, was not framed in accordance with the order of the court, but upon its being filed the injunction was issued. Afterwards the plaintiffs, perceiving the insufficiency of their bond, had a new one executed, to which the parties were the same as to the former one; but the conditions were different. This bond was filed by the clerk of the court without the authority of the court and without the knowledge of the defendants in the bill, who on discovering the fact moved to dissolve the injunction, because no sufficient bond had been filed prior to the issuing of the writ. The plaintiffs afterwards moved for leave to file a new bond; but no action was taken upon their motion, and in October, 1858, the injunction was dissolved, and after some time they dismissed their bill. At December term, 1858, Tesson brought suit on the second injunction bond against Christian and Peter Farni in the Circuit Court of the United States for the northern district of Illinois. The suit was brought in his own name as surviving partner of the firm of Tesson & Dangen, omitting as plaintiffs the other three obligees to whom the bond had been given, and making only two of the four obligors who executed it defendants. To avoid the objection of non-joinder of the other obligees the plaintiff averred that he was the only one interested in the judgment enjoined; that Miner, one of the obligees, was the sheriff who held the execution enjoined, and the other obligees were merely the agents or trustees of Tesson. The defendants demurred to the declaration, and the plaintiff amended it; but the names of the parties to the action were the same in the amended as in the first declaration, and the averments of their several and separate interests in the bond remained unchanged. To this amended declaration the defendants, in accordance with a stipulation they had made to plead to the merits, on the 26th of February, 1859, filed their plea of non est factum, with an affidavit that the writing sued on was never delivered by them. Replication was filed to this plea and issue upon it to the country, and a verdict and judgment rendered in favor of the plaintiff. The defendants excepted to the instructions given by the court to the jury, which related, however, to points not touched on in the opinion of the Supreme Court. Before signing the bill of exceptions the judge put on record a written explanation to the effect that the objection to the non-joinder of the proper parties, though made by the defendants on the trial, had been understood by the court to have been waived, and was only pressed upon a motion made to arrest judgment, when it was overruled as merely technical. This overruled objection is the only matter in the record to which the opinion of the Supreme Court was addressed, and it has seemed necessary to state only such of the facts as form a necessary introduction to that opinion. The defendants sued out this writ of error.

Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington, for plaintiff in error. The bond on which this action was brought was a joint undertaking by four persons to pay five others jointly the sum of $17,000. Two of the obligees were the plaintiffs in the judgment enjoined; two others were agents or trustees for them; and the fifth was the sheriff, who had the execution enjoined.

The sheriff, Miner, one of the obligees, was a citizen of Illinois, of the same State as the defendants in this case; so the plaintiff avers, and so the fact was. This contrivance in pleading was therefore resorted to to support the jurisdiction of the United States court; for, if the suit had been brought in the name of all the obligees, it must have failed, because one of the plaintiffs, Miner, would have been a citizen of the same State with the defendants. Can this pleading be supported by the authorities? It must be kept in mind that this is an action of debt on the penalty of the bond, and that all the authorities make a wide distinction between this form of action and one of covenant upon the undertakings in the conditional part of the obligation, and most, if not all, the cases turn on this distinction. Keeping this in mind, we refer to 1 Williams Saunders, 291, 1st Am. Ed., (Cabell vs. Vaughan,) where it is said 'all the obligees or covenantees, if alive, ought to join in the action; if dead, that fact should be averred.' The plaintiff in this case averred in substance that the obligees not joined were still alive. 1 Chitty's Pleadings, 9; 1 Saunders' Pl. & Ev., 9; Pearce vs. Hitchcock, (2 Comstock, 388;) Arnold et al. vs. Talmadge, (19 Wendell, 527;) Bailey vs. Powell, (11 Missouri, 414;) Sims & Hollis vs. Harris, (8 B. Monroe, 55;) Gayle et al. vs. Martin, (3 Alabama, 593.) This defect of parties may be taken advantage of by demurrer, plea in abatement, objection at the trial, motion in arrest of judgment, or by writ of error. 1 Chitty's Pleadings, 12 a; Cabell vs. Vaughan, (1 Saund. Rep., 291.)

The plaintiff filed a declaration, which ws demurred to. He then amended by filing two new counts, to which the defendants stipulated that they would plead to the merits, (and this was all the answer they ever made to it.) They did plead to the merits; at the trial, insisted on the objection. The judge overruled it then overruled the motion in arrest, because he thought the objection too technical to be sustained; yet the authorities all say that the objection was a good one at any stage of the proceedings, and ought to prevail when insisted on.

There is no surprise to plaintiff in this, for he has deliberately taken the hazard of trusting that the court would disregard long and well-settled rules of common law pleading, in order to extend the jurisdiction of the Federal courts.

Mr. Vinton, of Washington city, for defendant in error. It has been a rule of practice from an early period of the common law that covenantees may sue separately in covenant, if the interest and cause of action be several, though the covenant be in terms joint; but if an action of debt be brought on the same obligation to recover the penalty for breach of covenant, all the obligees must join in the suit. 1 Chitty's Plead., 3, 6, and 7; Eccleston vs. Clepsham, (1 Saund., 153, and note 1.)

The inquiry naturally presents itself, why was this distinction in the rule of practice where the suit is on the same instrument?

When debt was brought to recover the penalty of the bond, the severe rule of the common law gave judgment for the whole penalty according to the letter of the obligation, and not only shut out all inquiry into the damage which the obligee had sustained, but provided for the obligor no relief in any other form. And so great was this hardship of the common law that the court of equity made relief in such cases one of its special grounds of jurisdiction, which directed an issue of quantum damnificatus, and enjoined the excess of the judgment beyond the damage actually sustained. 2 Selwin N. P., 517.

If the obligee by his action of debt claimed the penalty of the bond according to its letter, it was but just that he, too, should be held to its letter, and compelled, though his interest were separate, to sue in the names of all the obligees. But if he brought covenant on his obligation, he recovered such damages only as he had actually sustained; and as he thus relaxed his hold upon the letter of the bond, the rule of practice was relaxed also in his favor by allowing him to sue separately, if his interest and cause of action were separate, though the terms of the obligation were joint. The law remained on this footing until the passage of the statute of the 8 and 9 William III, ch. 11, sec. 8, which enabled the obligor to compel the obligee in an action of debt on the penalty to assign the breaches of the condition of the bond, and limited his recovery to the damage actually sustained.

Since the passage of that statute, the action of debt on a penal bond is virtually put on the same footing with the action of covenant on the obligation. The result of an action on a penal bond, whether debt or covenant be brought, is now substantially the same to both parties in the suit. The English statute on this subject has been everywhere adopted in this country, and the record of this case shows that the plaintiff assigned the breaches of the condition of the bond, and recovered what was equitably due him, being some seven thousand three hundred and odd dollars. When the reason for this distinction in the rule of practice ceased to exist, the distinction itself ought also to have ceased.

But a conclusive answer to this objection to the non-joinder of proper parties to the suit is, that it was waived by the plaintiffs in error in the court below. He who remains silent when it is his duty and interest to speak, will not be allowed to speak afterwards to the prejudice of another. Having remained silent, then, the defendants had no right to make the objection on motion to arrest the judgment, nor to insist upon it in this court as a ground of error to reverse the judgment. The stipulation to plead to the merits was plainly an agreement to waive the objection of want of parties as a defence to the suit, and not, as is claimed by the plaintiffs in error, an agreement not to avail themselves of this defence in a particular form only, such as by demurrer to the declaration or plea in abatement.

Mr. Justice GRIER.

title: Farni v. Tesson


text: Talk:Farni v. Tesson

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Farni v. Tesson


text:
Farni v. Tesson/Opinion of the Court

The amendments made to the declaration after demurrer have not removed the original mistake, as to the parties who should have been joined as plaintiffs. In an action of debt on bond, the demand is for the penalty. The condition of the bond is no part of the obligation. It is true, the judgment for the penalty will be released, on performance of the condition annexed to it. The plaintiff may declare on it as single, and defendant would then have to pray oyer of the deed, and have the condition put on the record, so that he could plead a performance of it, or any other defence founded on it. The bond being set forth at length in the declaration, precluded the necessity of oyer, but did not relieve the pleader from the mistake patent in his plea. He sues on a several covenant to pay a sum of money to A, and shows a covenant to pay A B and C jointly. If one of the joint covenantees be dead, a suggestion of that fact is sufficient to show a right to sue in the names of the survivors. If, by the condition, the money to be recovered be not for the joint benefit of all, the suggestion of that fact cannot alter the obligation; but will show only that, though all the parties to it should join in the suit, and show a legal title to recover, the judgment will be for the use of the party named in the condition, and equitably entitled to the money. The true reason for the course pursued by the pleader in this case, though not alleged in the pleading, was, perhaps, to give jurisdiction to the Circuit Court of the United States, by omitting the names of obligees who are citizens of Illinois. But it is admitted that such a reason, even if alleged in the pleading, would not have cured the omission.

It is an elemental principle of the common law, that where a contract is joint and not several, all the joint obligees who are alive must be joined as plaintiffs, and that the defendant can object to a non-joinder of plaintiffs, not only by demurrer but in arrest of judgment, under the plea of the general issue.

When there are several covenants by the obligors, as, for instance, to 'pay $300 to A and B, viz: to A $100, and B $200,' no doubt each may sue alone on his several covenant. The true rule, as stated by Baron Parke, is, that 'a covenant may be construed to be joint or several, according to the interests of the parties appearing upon the face of the obligation, if the words are capable of such a construction; but it will not be construed to be several, by reason of several interests, if it be expressly joint.' In this case, the covenant is joint, and will admit of no construction. The condition annexed cannot affect the plain words of the obligation.

It has not been denied on the argument that such is the established rule of the law, and such the plain construction of the bond; but it is insisted, that the court should disregard it as merely a technical rule, which does not affect the merits of the controversy. The same reason would require the court to reject all rules of pleading. These rules are founded on sound reason, and long experience of their benefits.

It is no wrong or hardship to suitors who come to the courts for a remedy, to be required to do it in the mode established by the law. State legislatures may substitute, by codes, the whims of sciolists and inventors for the experience and wisdom of ages; but the success of these experiments is not such as to allure the court to follow their example. If any one should be curious on this subject, the cases of Randon vs. Toby, (11 How., 517;) of Bennet vs. Butterworth, (ib., 667;) of McFaul vs. Ramsey, (20 How., 523;) and Green vs. Custard, (23 How., 484,) may be consulted.

The judgment of the Circuit Court is therefore reversed, with costs.

title: Farni v. Tesson/Opinion of the Court


text: Talk:Farni v. Tesson/Opinion of the Court


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Harkness v. Underhill

James P. Harkness and Maria his wife brought their bill in the Circuit Court of the United States for the northern district of Illinois, against Isaac Underhill, to compel the defendant to convey to Maria Harkness the west half of the east half of the southeast quarter of section 4 in township 8, range 8, east of the 4th principal meridian, in Peoria county, Illinois. The material facts set forth in the bill are these:

Isaac Waters, the father of Maria Harkness, was a settler and housekeeper on the half-quarter section of land described. As such he was in possession of the whole eighty acres from April 5th, 1832, until July 13th, 1833; and from the latter date until July 2d, 1835, he was in possession of forty acres, the west half, cultivating it and making improvements, which began in April, 1832. On the 24th of November, 1832, he made his affidavit, which was corroborated by that of John G. Trail, that he was a settler and housekeeper on the half-quarter section; which affidavits of himself and Trail he afterwards presented at the land office and applied for the purchase and entry of the land, but failed because the public surveys of that township had not then been returned. Subsequently to this the surveys were returned, but Waters died without renewing his application. He left a widow and several children. On the 7th of August, 1835, which was after the death of Waters and within one year after the return of the surveys, his widow, on behalf of herself and children, applied for a pre-emption right upon the proofs which Waters had made in his lifetime. The register and receiver allowed the claim, and the land was thereupon entered by the widow for herself and the heirs-at-law of Waters. The receipt was recorded in the office of the recorder for Peoria country.

The narrative now goes back to certain transactions of Waters with other parties. On the 13th of July, 1833, he made his writing obligatory to Stephen Stillman and William A. Stewart, reciting that Waters and Stillman were common owners of the eighty acres; that Stewart had bought half of Stillman's share; that Stewart should pay $50, one half of the whole purchase money, and Waters should make to Stewart and Stillman a good title for forty acres, the east half of the eighty acres. Stewart conveyed his interest to Francis Church. As to the west half, Waters bound himself on the 2d of July, 1835, to convey that to Moses Pettingal and William Wolcott. They assigned their interest to Aaron Russell, who went into possession and made improvements worth $3,000. Russell died in possession in the fall of 1838, leaving no children, but a widow, who retained the possession to the time of her own death in the fall of 1839, when Gale and Cross, administrators of Russell, took possession and kept it until they were turned out by force, as will be mentioned hereafter.

In 1836, Stillman, taking advantage of the possession which he had acquired, with Waters's consent, of the east half of the eighty acres, claimed a pre-emption right in the whole of it. He had previously sold a portion of it to Aquilla Wren. The land office refused to allow him a pre-emption or to permit him to enter the land, because a pre-emption for the same land had been already allowed to the heirs of Waters. Stillman died in 1837. The year afterwards, Wren, together with one Frisby, sent an agent to the land office, who got a pre-emption right allowed, and an entry made in the name of himself as agent for Stillman's heirs. But this was done without the authority or knowledge of Stillman's heirs, and the purchase money and fees were paid by Frisby and Wren. They also got a patent from the General Land Office at Washington, and turned Russell's administrators (Gale and Cross) out of possession of the west half by force. In 1841, Wren conveyed the west half of the lot to Isaac Underhill.

After the administrators of Russell had been forcibly detruded from their possession, they brought an action against Waters's representatives on the bond which Waters had given to Pettingal and Wolcott for the title of the west half of the lot, and recovered $3,000. On this judgment execution was issued; the land now in controversy was levied on inter alia, and sold to Charles Balance for $5. Balance conveyed to Maria Harkness, a daughter of Waters, and one of the present plaintiffs. The other heirs of Waters also released their respective rights to her.

The bill concludes by praying that Isaac Underhill, the defendant, be decreed to convey the west half of the eighty acres to Maria Harkness, and account to her for the profits he has received.

The defendant's version of the facts as extracted from his answer, and simply stated, is this:

Waters was not a settler and housekeeper on the land. His affidavit to that effect was false, and so was Trail's. He went on the land September 23, 1832, put up a log-pen, without a roof, staid there one night only, and the next day made his affidavit. That was the only possession he ever had, and the certificate of pre-emption obtained upon it was fraudulent and void. Defendant knew nothing of the written contract between Waters of the one part, and Stillman and Stewart of the other part, until long after he purchased from Wren, and he denies that the facts recited in that writing are true, or that Stillman got possession of the east half of the lot under that writing; he was in possession before. It is true that Russell made improvements on the west half, but they were made with a full knowledge that Waters's pre-emption right was contested, and its validity denied. When defendant made his purchase from Wren, the bond from Waters to Stillman and Stewart, as well as the receiver's certificate and receipt, were recorded in the recorder's office of Peoria county, but he did not know it; he had no actual knowledge of either transaction, and he insists that he is an innocent and bona fide purchaser for a valuable consideration, without notice of any adverse claim whatever. He has made valuable improvements, which the plaintiffs stood by and saw him make for years, without asserting any right of their own; and this, together with the lapse of time, should protect him. He admits that the land was sold by the sheriff at the suit of Russell's administrators, on a judgment against the personal representatives of Waters; but the sheriff's vendee acquired no title, because the title was then not in the heirs of Waters, but in Wren.

The evidence taken in the cause was convincing enough that Waters was not an actual settler and housekeeper on any part of the eighty acres when he made his application for the right of pre-emption. He was at that time a resident of Peoria, and continued to reside there afterwards. This was the only fact controverted between the parties. The Commissioner of the General Land Office ordered the entry of Waters's heirs to be vacated on the ground of fraud. The principal questions, therefore, which arose on the bill, answer, and evidence, were:

1. Whether Waters's right of pre-emption could be set aside and the entry of his heirs vacated on the ground that his proofs were insufficient or false.

2. Whether Stillman, and those claiming under him, were estopped by his contract with Waters to take advantage of the unsoundness of Waters's title.

3. Whether Underhill, the defendant, took the legal title which he purchased from Wren discharged of the equities against it in the hands of Stillman; and

4. Whether the lapse of time and the accompanying circumstances were, or were not, a protection to Underhill against the claim of the plaintiffs.

The Circuit Court decided all the points of fact and law against the plaintiffs and dismissed the bill. Thereupon, they took this appeal.

Mr. Williams for complainants. It makes no difference whether Waters's house and actual residence was on the land in question or on the adjoining tract. The substantial requirement of the law was, the improvement, and that was on the land. The United States were not wronged, for they got as much money, and as good, from Waters as they would have got from Stillman. Nor was Waters's entry a fraud upon Stillman. It was made with his consent and for his benefit. At all events, Waters's entry was good under the act of June 19, 1834, which provides that all persons who were in possession of and cultivated lands in 1833 shall be entitled to pre-emption. Besides, the irregularity was cured by the act of July 2, 1836.

The register and receiver having sold the land to Waters in conformity with the instructions of the Commissioner of the General Land Office, had no further power or jurisdiction over it. Neither had the Commissioner of the General Land Office power to set aside the sale even for fraud. This could only be done by judicial authority. Opinions of Attorneys General, Public Land Laws, Instructions and Opinions, part 2, No. 15, p. 16; No. 57, p. 85; No. 58, p. 85; No. 64, p. 99; No. 88, p. 140; Elliott vs. Piersoll, (1 Pet., 340;) Wilcox vs. Jackson, (13 Pet., 511; 13 Curtis, 269;) Lytle vs. The State of Arkansas, (9 How., 333; 18 Curtis, 159;) United States vs. Arredondo, (6 Pet., 709, 729;) La Roche vs. Jones, (9 How., 17; 14 Pet., 458.) The entry of Waters was vacated on an ex parte application without notice. A judicial decree made under such circumstances, and in such a manner, would be a nullity. So, for a stonger reason, is the decision of a mere executive or ministerial officer.

Stillman is estopped by the contract between himself and Waters from setting up a title acquired as his was in opposition to the title of Waters. 12 How., 24; Hallet vs. Collins, (10 How., 174, 183;) Hunt vs. Sloan, (2 Michigan, 213;) Peyton vs. Stith, (5 Pet., 485;) Tilghman vs. Lytle, (13 Ills. R., 239;) Wenlock vs. Hardy, (4 Little, 272-4;) Riley vs. Millian, (4 J. J. Marsh, 305.)

Wren and Underhill having purchased with a full knowledge of Waters's claim, and of the facts upon which it was founded, are in no better condition than Stillman himself. Waters's certificate of entry and his bond to Stillman and Stewart were recorded. That record was notice to all the world. It is made so by the recording law of Illinois. 1 Purp. St., 159, sec. 28. Besides, the open, actual, notorious possession which Waters and those deriving title from him had of the west half of the eighty acres, was notice to all persons of the title under which they claimed it. Rupert vs. Mark, (15 Ills., 542;) Tuttle vs. Jackson, (6 Wend., 213;) Colby vs. Kenniston, (4 N. H., 262;) Mathews vs. Demerite, (22 Maine, 312;) Landes vs. Brant, (10 How., 348;) Dyer vs. Martin, (4 Scam., 146;) Dixon vs. Doe, (1 S. & M., 70;) Boling vs. Ewing, (9 Dana, 76;) McConnel vs. Read, (4 Scam., 123;) 1 Story's Eq. Jurisp., sec. 400; 2 Vesey, 437; 13 Vesey, 118; Buck vs. Halloway's Devisees, (2 J. J. Marsh, 180;) Grimston vs. Carter, (3 Paige, 421-437;) Governeur vs. Lynch, (2 Paige, 300;) Chesterman vs. Gardner, (5 Johns, Ch. 29.)

And this rule extends to the possession of a pre-emption in Illinois. Bruner et al. vs. Manlore et al., (3 Scam., 339.)

Mr. Carlisle and Mr. Webb for defendant. No one but a settler and housekeeper on the land was entitled to a right of pre-emption under the act of April 5, 1832. Waters was not a settler or housekeeper. He had, therefore, no right-no title-nothing but a fraudulent claim, wholly worthless and void. That being its character, the register and receiver and Commissioner of the General Land Office had authority to rescind, set aside, and treat as a nullity the entry made by his heirs on the false proofs produced by him in his lifetime. As Waters's entry did not give him the title, it was still in the United States, and the land office was justified in permitting Stillman's heirs to enter it. 2 Land Laws, 646; Lewis vs. Lewis, (9 Mo., 143.) 'It is the duty of the Commissioner of the General Land Office to revise the proceedings of the register and receiver and vacate entries which may have been illegally made, and thereby arrest the completion of a title originating in fraud, mistake, or violation of law.' This is the language of the court in Green vs.Hill, (9 Missouri, 322.) To the same effect are the cases of Perry vs. O'Hanlon, (11 Mo., 585;) Huntsucker vs. Clark, (12 Mo., 333;) Nelson vs. Simms, (23 Miss., 383;) Glenn vs. Thistle, (23 Miss., 42;) Mitchell vs. Cobb, (13 Ala., 137;) Dickinson vs. Brown, (9 Smeade and Marshall, 130;) Gray vs. McCance, (4 Ill.) Between the case at bar and the case last cited there is no essential difference. The Commissioner of the Land Office held Gray's entry to be a nullity, a fraud on the Government, and directed it to be set aside, and his action was held to be not only legal but conclusive upon the parties. If Waters had any claim under the act of April 5, 1832, or March 2, 1833, he waived it by his neglect to comply with the rules and regulations of the General Land Office, and no subsequent act that he could take advantage of would cure the irregularity.

The bond which Waters gave to Stillman was neither morally nor legally binding. Waters was to convey to Stillman if he obtained a pre-emption, and this he neither did nor could do. His heirs after his death entered the land in fraud of the law, but they never offered to execute the contract by conveying to Stillman. The bond was contrary to the policy of the law.

The plaintiffs rely on the record as proving notice to Underhill. Perhaps these records may be notice that he had a claim, but in 1841, when Underhill made his purchase from Wren, the entry by Waters's heirs had been set aside for three years, and for the same period no person had been in possession claiming under Waters or his heirs. The patent had been issued to Stillman's heirs, and no intention had been manifested to assert an adverse claim. Then eighteen years elapsed after the title to Stillman, and fourteen after Underhill's purchase, before this bill was filed. Meantime the land had increased in value one hundred fold-had been laid out into town lots, improved and built upon by innocent purchasers, and had become a material portion of a thriving and important western city. The purchase by Underhill was made in good faith, and the entire legal and equitable title is vested in him. He need not go behind his patent for a title. It is conclusive evidence of right and title in the patentee until attacked and overthrown by some one who can show a superior equity. The defendant is also fully and wholly protected by the statute of limitations. 2 Purple's Stat., 730; Purple's Real Estate St., 424.

Mr. Justice CATRON.

title: Harkness v. Underhill


text: Talk:Harkness v. Underhill

title: Talk:Harkness v. Underhill


text:
Harkness v. Underhill/Opinion of the Court

In the winter or spring of 1832, Isaac Waters and Stephen Stillman agreed to cultivate and improve the east half of the southeast quarter of section four, a portion of which is in controversy in this suit. This arrangement was made in view of the probability that Congress would, at its then session, pass a pre-emption law. It was further stipulated that Waters should make the necessary proof to obtain the pre-emption. As was anticipated, the act of April 5, 1832, was passed, allowing 'to actual settlers, being housekeepers,' a pre-emption to enter a half-quarter section to include his improvement. Waters went on the land, made a slight improvement for the purpose of cultivation, erected a temporary hut, or rather a pen, put some furniture in it, and he, with a part of his family, went into the hut, staid there a couple of days, and then returned to his residence in the village of Peoria, where he resided, and continued to reside. He was a substantial resident of the village, having a house, home, and family there. The half-quarter section adjoined the village property. Waters made an affidavit in September, 1832, that he was an actual settler and housekeeper on the land. He does not say at what time, but he applied to enter under the provisions of the act of April 5, 1832. He also procured the affidavit of one Trail, who swore that Waters was an actual settler and housekeeper on the half-quarter section.

In July, 1833, Waters, in a written agreement with Stillman and Wm. A. Stewart, recited the terms on which he and Stillman agreed to improve the land, to wit: that the entry was to be made for their joint benefit on the proofs furnished by Waters. Stewart, at the date of the agreement, stipulated to pay Stillman's moiety of the purchase-money, and Waters was bound to convey to Stewart and Stillman one-half of the eighty acres; and it appears by a covenant, dated July 2, 1835, executed by Waters to Pettingal and Wolcott, that Waters's portion was the western forty acres, which he bound himself to convey to Pettingal and Wolcott, they being purchasers from Waters. Waters soon thereafter died, leaving a widow and children, and they entered the half-quarter section, in the name of Waters, at the land office at Quincy, August 7, 1835. The entry stood in this condition till May, 1838, when the Commissioner of the General Land Office informed the register and receiver at Quincy that, Stephen Stillman's heirs having applied to them to enter the half-quarter section, containing eighty acres, and having adduced evidence to the Commissioner tending to prove that Waters went on the land into a log-pen, without a roof, and staid there only one night; furthermore, that the affidavits of Waters and Trail being evasive, and not stating that Waters was an actual settler on the 5th of April, 1832, the register and receiver were, therefore, instructed, that if they believed the facts, as respects the frauds practised to obtain the entry in Waters's name, to treat it as void, for fraud, and allow Stillman's heirs to enter the land; and this was accordingly done. The entry in Stillman's name was made under the occupant law of 1834.

We concur with the Commissioner's directions, and the finding of the register and receiver, that the proceeding of Waters was a fraudulent contrivance to secure the valuable privilege of a preference of entry. It was an attempt to speculate on his part, and also on the part of Stillman, his co-partner, by fraud and falsehood. They both knew equally well that Waters was no actual settler on the public lands at any time, and that the affidavits of Waters and Trail were false.

The principal ground on which the bill is founded assumes that the complainant, as assignee of Waters's heirs, is entitled to a decree against the respondent, because his title was derived through Stillman, and that Stillman came into possession under Waters, and therefore Stillman's assignee cannot dispute the title of him under whom he held possession, according to the doctrine maintained by this court in the case of Thredgill vs. Pintard, (12 How., 24.)

In Thredgill's case the transaction was fair, and obviously honest. The consideration between the parties was full and undoubted; their contracts bound them. But in this case, there was no legal contract between Stillman and Waters. They combined to defraud the Government; their agreement was contrary to public policy, because it was intended by contrivance to take the land out of the market at public sale-a cherished policy of the Government. Such an agreement can have no standing in a court of justice.

But there is another defence equally conclusive. The bill seeks the legal title from Underhill; he holds under a patent, dated in 1838; he purchased in 1841, and has been in uninterrupted possession ever since. This suit was brought in 1854. In the meantime, the land sued for has been partly laid off into lots, and become city property; yet, Waters's claim lay dormant after his entry was set aside at the General Land Office for eighteen years, and fourteen years after the patent in Stillman's name was issued, and the land conveyed to Underhill by Wren. Underhill, and those holding under him, have held possession from 1841 to the time when this suit was brought; and, in the meantime, the land had greatly increased in value, and changed in its circumstances. These facts present a case on which a court of equity cannot decree for the complainant, if there was no other defence.

The question is again raised, whether this entry, having been allowed by the register and receiver, could be set aside by the Commissioner. All the officers administering the public lands were bound by the regulations published May 6, 1836. 2 L. L. & O., 92. These regulations prescribed the mode of proceeding to vacate a fraudulent occupant entry, and were pursued in the case before the court.

This question has several times been raised and decided in this court, upholding the Commissioner's powers. Garland vs. Winn, (20 How., 8;) Lytle vs. The State of Arkansas, (22 How.)

For the reasons above stated, it is ordered that the decree of the Circuit Court be affirmed.


text: Talk:Harkness v. Underhill/Opinion of the Court


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Laflin v. Herrington

Walter Laflin filed his bill in the Circuit Court of the United States for the northern district of Illinois, against the widow and heirs of James Herrington and the Illinois Central Railroad Company, complaining that one William Stuart obtained judgment in the Circuit Court for Kane county, Illinois, 9th June, 1837, against James Herrington, for $646 72, and issued execution thereon within one year thereafter, which was returned by the sheriff nulla bona; that afterwards James Herrington died, leaving a widow and ten children, (the defendants,) the widow becoming his administratrix; that James Herrington died seized of certain described lands; that afterwards Stuart notified the administratrix of the judgment and of his intention to issue an alias execution; that he did issue such execution, levied upon the land, and after due advertisement it was sold to William H. Adams for $1,378 42; that Adams being a friend and relative of Stuart, made the purchase for him; that Augustus M. Herrington, one of the heirs of the deceased James Herrington, proposed to redeem the land for himself and the other heirs, but in order to overreach an outstanding title for a fractional interest, requested an assignment of the certificate of sale to be made by Adams; that Adams made an assignment with a blank for the name of the assignee, and instructed his attorney, Burgess, to deliver it to Herrington when the money was paid; that Herrington (though he knew that Adams had bought for Stuart) got the assignment from Farnsworth, the partner of Burgess; that he got the paper by falsely representing that the land had been incorrectly described, and gave his notes for $2,378 42, payable to Burgess & Farnsworth, agreeing, that if the arrangement should not prove satisfactory to Stuart it should be void, and the certificate, with the assignment, be returned to Farnsworth; that Adams repudiated the arrangement as soon as he heard of it, and wrote to Stuart, who immediately replied, expressing his disapproval in a letter which was read to Herrington before the expiration of the time for redemption; that afterwards, on the 9th of October, 1856, Adams sold and transferred the certificate of sale to Julius Smith, who, on the 20th of November, 1856, conveyed to the complainant; and that the heirs of Herrington in December, 1856, conveyed an undivided interest to the Illinois Central Railroad Company. The bill prays that the defendants be required to deliver up the certificate of sale so that the assignment may be cancelled; that they be restrained by injunction from placing the certificate on record, from filling up the blank in the assignment, from making any claim to the lands, or from demanding a deed of the sheriff; that the sheriff be directed to make a deed to the complainant; that the defendants be decreed to have no title, and required to release all title which they may appear to have.

The facts, as they appeared from the answer and the evidence, are set forth in the opinion of Mr. Justice Wayne too fully to need repetition here.

Mr. Reverdy Johnson, of Maryland, and Mr. Burgess, of Illinois, argued the cause for the appellants.

Mr. Beckwith, of Illinois, for appellees. 1. The judgment against James Herrington not having been revived against his heirs, the execution was a nullity and the sale void. 2. It is not true that J. M. Herrington got the certificate fraudulently. 3. The appellant, by his own showing, is simply a purchaser of the right to set aside a legal instrument, and has, therefore, no standing in a court of equity. 4. Adams being clothed with the legal indicia of ownership, though he was, in fact, only an agent of Stuart, had power to bind his principal. 5. Stuart ratified the act of Adams, and the subsequent attempt to repudiate it came too late. 6. On the part of the complainant this is a mere speculation; all that is really due to Stuart was tendered, and is now in court for his use. 7. The complainant cannot have the contract with Herrington rescinded without placing the appellees in statu quo, which would permit them to discharge the debt and redeem the land.

Mr. Justice WAYNE.

title: Laflin v. Herrington


text: Talk:Laflin v. Herrington

title: Talk:Laflin v. Herrington


text:
Laflin v. Herrington/Opinion of the Court

We shall confine ourselves to such of the facts of this case as are sufficient to illustrate the point upon which we will decide it. Others have been insisted upon in the argument, but, in our opinion, they have no substantial bearing upon the merits of the controversy.

The complainant and the respondents have chosen to put their respective rights to the land in dispute upon the sale of it, to satisfy the judgment of Stuart against J. Herrington, each claiming the sheriff's certificate of sale by fair purchases, the former, however, charging that the purchase of the latter had been obtained by the fraud and circumvention of Augustus M. Herrington, their co-defendant, without accusing any of the rest of them with complicity in the transaction.

It is recited in the bill that a judgment had been recovered by William Stuart, in the year 1837, against James Herrington, for six hundred and forty-six dollars and seventy-two cents. That an execution issued upon it, within the year of its rendition, commanding the sheriff to make the money out of the goods and chattels, lands and tenements of the debtor, and that the sheriff had returned it to the proper office, with the entry upon it, 'that he could find no property of the defendant whereon to levy.' This occurred in the lifetime of James Herrington. He died in the year 1839 intestate, leaving a widow and ten children.

The probate court of Kane county granted to his widow letters of administration upon the husband's estate. It is against her, as administratrix, and nine of these children, one of them being dead, and the Illinois Central Railroad Company, that this suit is brought. The answer of that company makes it unnecessary to notice it further in this opinion, except in confirmation of the fact that, at the time it bought its interest in the land in controversy, and when the complainant bargained for his, it had become a subject of speculation.

Nothing was done for several years after the sheriff's return upon the execution, and the death of the debtor, to collect the debt.

But when it had been judicially determined that the debtor had died seized of the land in controversy, Mr. Stuart, the judgment-creditor, empowered his friend and brother-in-law, William H. Adams, to take such means as were necessary to subject the land to the payment of his judgment. Adams accepted the agency, and employed Messrs. Farnsworth and Burgess, attorneys at law, in the case. They conducted it with the knowledge of Adams of every thing which was done, and with the acquiescence of his principal, Stuart. The counsel served a notice upon the widow and administratrix of J. Herrington, informing her of the unsatisfied existence of the judgment, and that they would apply in three months, at the clerk's office, for an alias execution. They did so, and the execution was issued and levied upon the land. It was sold by the sheriff, in four parcels, for the aggregate sum of $1,378 42, subject to a right of redemption in one year, by the payment of the sums due, with accruing interest and the costs. Mr. Burgess attended the sale at the request of Mr. Adams, and bid on the land to the amount of the execution and costs, in his name, for the benefit of his principal, Mr. Stuart.

Mr. Burgess, as counsel, directed the sheriff to make the certificate of sale to Mr. Adams, and that having been done, he received and retained it. The purchase and retention of the certificate of sale by Mr. Burgess was approved by Mr. Stuart, it being understood it was to remain in the hands of himself, and his partner, Mr. Farnsworth, subject to the right of redemption, or to an assignment of it to a purchaser, as Mr. Adams might direct.

Shortly before the expiration of the time allowed by the law to redeem, Mr. Burgess told Mr. Adams that Augustus M. Herrington, one of the children of the judgment-debtor, and now a respondent to this bill, wished to redeem the land by paying the amount due upon the certificate of sale, and wanted an assignment of it to himself. Mr. Adams directed Mr. Burgess to write the assignment. He did so, leaving a blank for the name of the assignee, and a figure wanting for the date of the year, which Mr. Adams signed, giving a direction to Mr. Burgess, the latter assuring him it should be observed, that the certificate, with the assignment upon it, should not be given up until the money had been paid.

Either late in January or early in February, 1856, Augustus M. Herrington went to the office of Farnsworth and Burgess, the latter not being in, and he stated to Mr. Farnsworth his desire to get further time than the last day of redemption for the payment of the money due upon the certificate of sale. To this application Mr. Farnsworth says: 'Knowing that there had been some conversation to transfer the certificate to A. M. Herrington, and that there was an assignment in the office for that purpose, the transfer of the certificate was made to him upon his giving his note of hand and a due bill in payment, the note being ante-dated as of March the sixth, 1855, with interest at ten per cent. to be paid on the 1st September, 1856, to Farnsworth and Burgess; the due bill being for one hundred dollars 'and a trifle over,' which was paid in a short time afterward, the amount of it being the fee due to Farnsworth and Burgess by Mr. Stuart, for their services in the case.' Mr. Farnsworth filled up the blank in the assignment with the name of Herrington, added the figure 5 to give that year as the date of the note, and concluded it, contrary to the fact, with the words, 'for money actually loaned.'

Mr. Farnsworth declares, in his evidence, that the transfer was made and the note taken in good faith, for the benefit of Mr. Stuart, and for no other purpose than to give to Herrington the ownership of the certificate.

Some days after it had been done, Herrington went to the office occupied by Adams and by Farnsworth and Burgess for the transaction of their respective businesses-that of Adams being to buy and sell land-when the transfer of the certificate to Herrington became the subject of conversation, both of the counsel and Adams being present. Adams then said to them and to Herrington that he was satisfied with the arrangement, but that he being only an agent, he would write to his principal about it, and if he did not object to it, that he would not. He did write, and received a reply from Mr. Stuart, complaining of what had been done, which was shown to Mr. Herrington on the 5th of March, the day before the expiration of one year from the date of the sale of the land.

But whatever may have been his discontent with the arrangement, that letter and other testimony in the record show that Mr. Stuart did not then intend to disaffirm it, but was content to take the chances of the payment of Herrington's note; at the same time holding his counsel responsible for the debt, if the note should not be paid at its maturity. He also required from them the deduction of their commissions on the amount 'collected or to be collected.' No complaint was made again of Farnsworth's arrangement by the parties interested in it, until after Herrington's default in payment of the note.

Six months had intervened, when Herrington received a letter, with the signature of Farnsworth and Burgess, urging him to pay the note on account of a letter which they had received from their client, Mr. Stuart. The letter was sent to Herrington, with a request for its return. Burgess and Farnsworth are charged, in that letter, with having given the certificate to Herrington without the knowledge and against the consent of Adams, and in violation of the assurance given by Mr. Burgess, that it should not be parted with by him until the money had been paid. The writer then says, that he had written to Mr. Adams to employ at once some able and honest lawyer-if he shall have the luck to find one-to take immediate measures to settle the matter. And he concludes by telling his lawyers that his confidence, and that of Adams, had been abused, and that if he should be compelled to go to Chicago again on the business, he would expose the whole affair. Then it appears, that up to the date of that letter-six months after that of the previous letter-there had been no actual disaffirmance of Farnsworth's arrangement with Herrington for the certificate of sale; and that all the parties knew it had been transferred by that arrangement, in virtue of Herrington's right to redeem the land, for the benefit of himself and his mother, and his brothers and sisters. Stuart, Adams, and their counsel continued to anticipate the payment of the note, and the latter were allowed to retain it for payment, without the dissent of Adams or his principal. But, after it was past due for more than a month, the counsel wrote to Herrington a singular letter, without taking notice of any of the other respondents to this bill. They say they 'were under the necessity, owing to Mr. Stuart's refusal to ratify the arrangement made by our Mr. F. with you about the certificate of sale of what is called the Laflin property, to refund the money you paid to Mr. F., about the 28th of January last, of $108 34, with interest, amounting to $116 48.' Still, Burgess, acting as counsel of Stuart, in writing the letter just read, which was done with the full knowledge of Adams, made no offer to surrender Herrington's note.

The case subsequently shows, that the note was retained by Mr. Burgess, for the security of himself and partner against any claim which might thereafter be made by Mr. Stuart upon them for the money due him, in the event of his successfully carrying into execution his menace to make them responsible for the debt, and with the further intention to use the note to coerce the payment of it out of the land. By this time, however, the land was supposed to have become a good object of speculation. Mr. Burgess and Mr. Adams knew it to be so; for, before the letter had been written to Herrington, announcing to him, for the first time, that Mr. Stuart would not ratify their arrangement for the transfer of the certificate to A. M. Herrington, Mr. Burgess had already become the lawyer of the complainant, Mr. Laflin, for the purchase of the land, with the intention to divest the respondents of all right to the certificate of sale. We think that a moment's professional consideration, unaffected by any resentment of Mr. Burgess against Herrington for the non-payment of his note, would have suggested to him that having himself fully assented to what he represented as his partner's arrangement for the transfer of the certificate, that, so far as he was concerned, it had given to the Herringtons an equity to the land, which it might not be professionally becoming in him to attempt to defeat, by his agency for the purchase of it for another person. He must have known that, under the circumstances, equity would coerce the respondents to pay the amount due upon the certificate, as the condition upon which they could ever get the sheriff's title to the land. Moreover, he knew that there were then persons offering to buy the land, at a larger sum than the certificate called for, amply securing his principal, Mr. Stuart, and himself and his partner, from all loss. And, further, he might have concluded that any one purchasing, either from Mr. Stuart or Mr. Adams, with a full knowledge of all the circumstances of the transaction before he bought, could not acquire any right in himself, by the purchase, to defeat the previous equity which had been obtained by the representatives of the judgment-debtor, in the exercise of their legal right to redeem the land from the operation of the certificate of sale. The evidence also shows that the complainant, Mr. Laflin, knew all the particulars of the judgment; the subsequent proceedings upon it; the sale of the property to satisfy it; how the certificate of sale had been given by the sheriff, and to whom, and for what purpose; the subsequent assignment of it to A. M. Herrington, in behalf of himself and his father's family; the agency of his counsel, Mr. Burgess, in the whole affair; and the course of Mr. Stuart and Mr. Adams, in respect to it, when the former conveyed to the complainant his interest in the land.

In our opinion, there never was, either by Mr. Stuart or Mr. Adams, or by their counsel, any effective disaffirmance of the assignment of the certificate to Mr. Herrington; and if either of them meant to do so, we think that no act of theirs, either separately or conjointly, could, under all the circumstances, have defeated, in favor of Mr. Laflin, the previous equity to the land, which had been acquired by the respondents. Laflin stands in no better condition than Mr. Stuart did, when his equity in the certificate had been conveyed to others by those who represented him, for a consideration which they chose to retain, with his knowledge, if not strictly with his consent, in expectation of its payment, until after the time when the right of the assignees of it to redeem the land had passed. The latter, by that course, might well have supposed, and as they did think, that they had an equity in the certificate, not liable to be annulled at the pleasure of those from whom they had acquired it, upon the plea that there had been a failure to pay the money on the day stipulated, and that its non-payment at that time, of itself revested Mr. Stuart with the original, but contingent equities to the land, which the purchase of it, at sheriff's sale, had given to the judgment-creditor. The non-redemption of the land would have made Mr. Stuart's right absolute, upon the expiration of the time allowed; but having made the certificate of sale the subject of speculation and sale before that day, with a postponement for the payment of the consideration of the transfer for a longer time, neither Mr. Stuart nor Mr. Adams, as his agent, can, with any propriety, be considered as having had a right to retain, at the same time, both Mr. Stuart's claims upon the land, if the money should not be punctually paid, and also their transferee's obligation to pay it when due. Indeed, we doubt, without intending ourselves to be finally concluded upon the point, as it has not been so decided by the courts of Illinois, if, under the law of Illinois giving to a debtor the right to redeem his land sold under execution, if even an agreement had been made between these parties, which did make the right to redeem conditional upon the payment of a consideration in money, after the time to redeem had passed, and that, if not then paid, that the creditor should have the right to exclude the debtor from doing so, whether a court of equity, if called upon to adjust the rights of the parties under such a contract, would not, in consideration of the intentions of the legislature in giving to debtors the right to redeem, feel itself bound to dispose of the case, by making the debtor pay the amount due, with interest, and all costs which might have accrued in the litigation.

But how, in addition to what has been said of the disability of Mr. Stuart to convey, at the time it was done, any right to the land to the complainant, and the latter's inability to obtain any such right, in consequence of his knowledge of the circumstances, when he took Stuart's conveyance, there were incidents in this affair, happening subsequently to the assignment of the certificate to Herrington, produced by the course taken by the complainant and his counsel, Mr. Burgess, and by Mr. Adams and Mr. Smith, who now appears for the first time in this business, which are certainly not calculated to strengthen the complainant's claim to the certificate of sale against the better equity of the respondents.

The course taken by the complainant to get the ownership of the land was to buy it from Mr. Stuart, expecting, if he succeeded in doing so, that Mr. Adams, having no interest or claim upon it, would, as Stuart's agent, transfer to him the certificate of sale which the sheriff made in his name, only, as he says in his testimony, for the benefit of Stuart. The case, however, shows that Mr. Adams would not or did not do so, and that he assumed, in eight days afterwards, and when he knew that his principal had conveyed to Laflin, to be the owner of the certificate, and conveyed the same land to Julius C. Smith, authorizing him to receive a deed for it, in his own name and to his own use, from the sheriff, in virtue of the certificate of sale, and then remitted himself to Mr. Stuart sixteen hundred dollars, the consideration which Laflin was to have paid Mr. Stuart, but which had not been done, though said in the deed that it had been.

Now, there are certain facts in connection with Stuart's deed to Laflin and Adams's to Smith which must be mentioned, and particularly so, as they are mostly derived from the testimony of Mr. Adams:

1. Mr. Burgess acted as the agent of Walter Laflin, the complainant, in the negotiation between Smith and Laflin, for the purchase of the property, and for the procurement of the deed from Stuart to Laflin. 'Do not recollect who informed him so, but thinks it was Mr. Burgess.'

2. The deed from Mr. Adams to Smith was executed, the latter being acquainted with the dispute that had arisen concerning the property and with the circumstances attending the transfer of the certificate to the Herringtons.

3. Smith knew when Adams made his deed, and when he accepted it, that Adams was only the agent of Stuart; that he had nothing in the land to convey; that the certificate of sale, which he was then profeesing to sell him, had been issued to him only as the agent and for the benefit of Stuart; that it had been already assigned, with his signature, to A. M. Herrington, and when the deed was made to Smith, on the 9th of October, that both himself and Adams were then aware of the fact of Stuart having sold his interest in the land to Laflin on the 1st of the same month. The title to the land, then, as between Stuart, Laflin, Adams, and Smith, stood thus: that the second had the first title to it, and the latter, that of Mr. Adams, the agent of Stuart, who had not at the time any property in the land, or any delegated authority from Stuart to convey it to Smith. We known not what were the inducements of Mr. Adams to make a transfer, under such circumstances, to Smith; but when he gave his testimony in this case, it would have been better for all parties concerned if he had given a full explanation of the transaction. It was, however, not done. But Smith accepted the conveyance, and brought a suit against Augustus M. Herrington and others for the property; and he states in his bill, that William H. Adams, for a valuable consideration paid, and agreed to be paid, had assigned the certificate to him. His suit was filed two days after the date of the conveyance to him. Thus matters stood until the 20th November of the same year, just one month, when he conveys the property to Walter Laflin, the complainant, for the sum of thirty thousand dollars, for which he had agreed to give sixteen hundred, the exact sum which Adams remitted to Stuart when he conveyed to Smith. Our object in giving the narrative of the transfers of this land has not been to ascertain whether all of the persons who have been mentioned were in combination to divest the Herringtons of their equity in it, but to show the fact that there was such a combination for speculation, which a court of equity will not countenance. The conveyances to Laflin and Smith were made by Mr. Stuart and Mr. Adams before the letter of the 23d of October, 1856, was written to A. M. Herrington by Farnsworth and Burgess, letting him know that Mr. Stuart had refused to ratify their arrangement for the transfer to him of the certificate of sale. Mr. Smith's suit was also brought before that letter was written. Mr. Burgess had negotiated the sale from Stuart to Laflin on the first of October, and in that letter, of the 23d of the month, calls the land, for the first time, the Laflin property.

Mr. Burgess also knew that Adams's transfer to Smith was executed on the 9th, and, as early as the 11th, he became the counsel of Smith in the suit against the Herringtons, notwithstanding he had before bought the property for Laflin, then being at the same fime the counsel of Laflin and Smith, in respect to land for which they had to all appearance antagonist claims, which was acquired through his agency, his situation as to each of those persons being known to Adams when the incidents occurred which have been just mentioned, and, of course, before the letter of the 23d of October was written to Herrington. Further, we find in the record proof of his representation of Laflin and Smith, and with their consent at the same time, in the fact that after Smith's suit had been allowed to stand for six weeks, that Smith consented to give a quit-claim deed for the land to Laflin, for which the latter was to pay thirty thousand dollars, and that the litigation between Smith and Herrington was immediately transferred to Laflin, under the professional direction of Mr. Burgess.

All the foregoing facts, in connection with the evidence that this land had then become very valuable, convince us that there was a combination to deprive the Herringtons of their equity in it, by using the fact of the note of A. M. Herrington not being paid at its maturity as a pretence for doing so. Mr. Allen, engaged in the real estate business, says that he knew the land; that he knew it as the property contested between Matthew Laflin and Herrington's heirs, and thirteen acres of it, running from State street to the lake, comprising what was known as the Herrington tract; that it had seven fronts-one on State street, two on Wabash avenue, two on Michigan avenue, and two on Indiana; he thinks that in each front there was about six hundred feet, and that its value in March, 1856, was one hundred and twenty-five dollars per front foot.

That may have been an exaggerated estimation; but whether so or not, it serves to show, especially as it was not controverted as to the amount, that all the persons concerned in defeating the equity of the Herringtons-and they were also dealers in land-were in combination to effect that object for a speculation, and that Mr. Burgess gave to them his professional services to accomplish it. Now, it is not meant by us, that the buying of land with the expectation of selling it at an advance in price is wrong of itself, any more than that the purchase of merchandise is so, when made by the anticipation of its rise by the happening of political events, or by foresight of what will be the demand for consumption at a future day, and a deficiency of supply; but the difference between them is, that the latter is a triumph of sagacity, which gives life and energy to all trade; but that to buy land for speculation, upon a combination to divest the right of another to it, is a contrivance to fulfil the designs of selfishness.

We have given the facts of this case plainly, in connection with the assignment of the certificate of sale to Herrington, and the subsequent attempts which were made to divest his interest and that of his family in it, and necessarily with the names of all the persons concerned in them. That of Mr. Burgess occurs frequently under circumstances that call for a further remark. We do not mean it to be inferred, from anything that has been said, that, in the combination to make the speculation out of the property, he had any prospective pecuniary expectation or interest in its results. There is no evidence of that in the record, and there is that he advocated zealously the causes of his new clients perhaps from temperament of character, perhaps from resentment to the Herringtons for the non-payment of the note at its maturity, which A. M. Herrington had given to Farnsworth and himself for the certificate of sale; but, be that as it may, we think, considering what had been the relations between himself and partner with A. M. Herrington in this matter, in appearing in court against him and his family for others in the same business, that he was not sufficiently mindful of the restraints imposed by prudence upon lawyers in making engagements with their clients, which cannot be disregard without subjecting them to misconception and suspicion, and the profession to the already too prevalent impression that it is not practiced with all the forbearances of the strictest honesty or of the highest moral principle.

With these views, we shall direct the judgment of the court below to be affirmed.

We ought to have said, also, that there was no error in receiving the letter of Mr. Stuart to Farnsworth and Burgess as evidence, complaining of their want of fidelity as his lawyers. It was not confidential, or ment to be so, in the sense of its having any connection with the merits of the case, for Mr. Stuart had authorized it to be communicated to another law-year, for the purpose of obtaining from Farnsworth and Burgess an immediate settlement of the debt.


text: Talk:Laflin v. Herrington/Opinion of the Court


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United States v. Covilland

Charles Covilland, Jos e Manuel Ramirez, William H. Sampson, administrator of John Sampson, Charles B. Sampson, Robert B. Buchanan, and Gabriel N. Suezy, presented their petition to the Board of Land Commissioners, at San Francisco, on the 31st of May, 1852, claiming to be confirmed in their title to two tracts of land lying on the Yuba and the Feather rivers. The title set forth in the petition was derived from Captain John A. Sutter, whom the petitioners alleged to be a regular and legal grantee from the Mexican Government. It was alleged that Sutter had two grants, one made by Governor Alvarado for eleven leagues, in 1841, and the other by Micheltorena, in 1845, for twenty-two leagues, and the land claimed in the present case was averred to be part of these grants. The conveyances from Sutter to the petitioners were set out and produced before the board.

The evidence which the petitioners laid before the board and before the District Court to establish the title of Sutter under his two grants was nearly the same in this case as in the case of Sutter vs. The United States, (21 How., 170,) where there was a final decree confirming his claim under the title from Alvarado for eleven leagues, and rejecting that under the Micheltorena title for twenty-two leagues.

The record does not show precisely what quantity of land was conveyed by Sutter to Covilland and his associates, but the boundaries described in the deeds include a comparatively small part of Sutter's original claim. The Board of Commissioners confirmed the claim of the petitioners for the quantity of land included in their deeds as part and parcel of the lands granted to Sutter, and previously confirmed by the board to him.

Upon appeal by the United States to the District Court, the decree of the board was confirmed with certain immaterial modifications, and this appeal to the Supreme Court was then taken by the United States.

Mr. Stanton, of Washington city, for the United States, resisted the claim of the present parties on the grounds:

1. That the title of Sutter to the whole grant of eleven leagues being confirmed, the authority of this court is exhausted.

2. That the specific tract claimed in this case cannot be ascertained until the Sutter tract of New Helvetia shall be located.

Mr. Crittenden, of Kentucky, for the appellees. 1. The petition of the claimants and proceedings thereon are in strict accordance with the statute. (9 Stat. at Large, 633.) 2. There is no error in the decree. 3. The decree cannot be made erroneous by a fact not appearing in the record, namely, that a patent had been decreed or issued to Sutter for the whole tract of land. 4. The issuing of a patent to the claimants is no part of the decree, it is only consequential; and though the issuing of a patent to Sutter for the whole tract might be a valid reason to justify the Executive Department for refusing to issue a patent to the claimants for a part, yet that does not make the decree itself erroneous. It only makes ineffectual a part of the decree, or defeats what would otherwise have been a consequence of the decree. 5. The decree contains nothing to the prejudice of the United States, and ought not, therefore, to be reversed.

Mr. Justice CATRON.

title: United States v. Covilland


text: Talk:United States v. Covilland

title: Talk:United States v. Covilland


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

Covilland and four others petitioned to have confirmed to them two tracts of land, as joint owners, assuming to derive title from John A. Sutter. His claim was confirmed for eleven leagues by the decision of this court, in 1858, and which judgment is reported in 21 How., 170. It appeared, in that case, that Sutter had assigned to others a great portion of his original grant; nevertheless, the suit against the United States seeking a confirmation was prosecuted in his name, regardless of that fact.

That a confirmation in the name of the original grantee, divesting the legal title of the United States, is binding on the Government and on the assignees, is the established doctrine of this court. It was so held in the case of Percheman, (7 Peters, 56,) which decision has been adhered to, and was recognised in Sutter's case, (21 How., 182,) of which this case is, in fact, a part.

To this course of decision the courts adjudicating titles to lands situate in California are requested to conform by the 11th section of the act of March 3, 1851; nor can their decisions affect injuriously the rights of assignees. The 15th section of the act so provides.

The decree made by this court in 1858, in favor of Sutter, remanded the proceeding to the surveyor general's office in California, to have a survey made of the land conformably to our decree, to the end of having a patent founded on the survey, divesting the title of the United States. In executing the survey, Sutter's assignees may intervene and protect their rights, according to the act of June 14, 1860.

We are not aware that the survey has been executed; but when it is finally completed, and a patent issued to Sutter, his assignees can assert their rights against him in the ordinary courts of the country. But the extraordinary tribunals, proceeding by force of the act of 1851, cannot order a second patent to issue for a portion of Sutter's grant. Such judgment could have no effect against the Government; and as between Sutter and the petitioners, would be a nullity, being prohibited by the 15th section of the act of 1851.

It is ordered that the judgment be reversed, and the petition be dismissed.


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


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Singleton v. Touchard

Gustave Touchard, a subject of the French Emperor, brought ejectment in the Circuit Court for the northern district of California, against James Singleton and seventeen others, for a tract of land situate in the county of Santa Clara, California, being a portion of what is known as Yerba Buena rancho. All the defendants answered, averring the title of the land claimed by the plaintiff to be in the public authorities of the city of San Jos e, and all, except two of them, admitted that they were in possession of certain portions of the land for which they severally took defence under conveyances or licenses from either the Mayor and Council, or the commissioners of the funded debt, of San Jos e city. The other two defendants did not aver any conveyance to them from the city of officers. They asserted the title to be in the city, but denied that they themselves were in possession.

On the trial the plaintiff produced a patent from the United States to Antonio Chaboya, reciting his claim under a grant from the Mexican Government, and the final confirmation of it pursuant to the act of Congress of March 3, 1851. It was admitted that this patent covered the land in suit. The plaintiff showed the conveyances through which Chaboya's title was transmitted to himself, and proved the possession of the two defendants by whom that fact was denied in their answers.

On the part of the defendants, evidence was given to show that the Mayor and Common Council of the city of San Jos e had petitioned the Board of Land Commissioners for confirmation of their claim to the commons, or pasture lands, of the pueblo of San Jos e. It appeared, that this claim had been confirmed by the commissioners for four leagues, being one league in each direction from the centre of the plaza, and for the remainder of the land the claim was rejected. On appeal to the District Court the title of the city to all the land it claimed was confirmed. The Attorney General took an appeal to the Supreme Court. It was proved, that the boundaries assigned to the pueblo lands by the decree of the District Court included all the lands in dispute between the present parties. After this, the defendants proceeded to show the documentary any other evidence, upon which the pueblo of San Jos e claimed its title from the Mexican nation.

The judge of the Circuit Court instructed the jury that the patent conferred a legal title upon Chaboya and his alienee, the plaintiff. As to the defendants' title, it could not (he said) be set up against the patent, even though the evidence were such as to prove the Mexican grant to the pueblo a good one, and entitled to confirmation, under the act of Congress. The confirmation of the city's claim by the Land Commission and the District Court, with an appeal to the Supreme Court still pending, and without a survey or patent, might be good in equity, but could not be made available to the party in this action.

The jury accordingly found a verdict for the plaintiff, upon which the court gave judgment, and the defendants sued out this writ of error.

No counsel appeared for plaintiffs in error.

Mr. Stanton and Mr. McCrea, (with whom was Mr. Wilkins and Mr. Hepburn,) for defendants in error, argued that the Mexican title set up by the plaintiffs in error was unsound in itself; and even if it were good, it could not be used to resist the perfect legal title of the defendant in error. The confirmation by the District Court amounts to nothing, for it may be reversed. And even if it were a final decree, without a survey or patent, it would be useless in a court of law. Waterman vs. Smith, (13 Cal. Rep., 418;) Waterman vs. Samuels, (15 Cal. Rep., 123;) Mezes vs. Greer, (24 How., 268.)

Mr. Justice GRIER.

title: Singleton v. Touchard


text: Talk:Singleton v. Touchard

title: Talk:Singleton v. Touchard


text:
Singleton v. Touchard/Opinion of the Court

There were two several instructions given by the court below to the jury. If either of them be correct, the verdict rendered for the plaintiff below was correct, and the judgment of the court thereon must be affirmed.

The plaintiff in ejectment claimed under a patent from the United States; the defendants under a claim confirmed by the District Court, on which an appeal had been entered by the Attorney General. This claim had not been surveyed; its boundaries were not officially ascertained, nor had any patent been issued for it.

The court instructed the jury, 'that in the action of ejectment the legal title must prevail; that the plaintiff had a legal title by his patent, and the defendant's, if any, was but an inchoate and equitable title, which might avail in a court of chancery, but it could not avail the defendant in action of ejectment.'

This instruction was in exact accordance with numerous decisions of this court, (see Mezes vs. Greer, 24 How., 268,) and justified the verdict, even if there had been error in the other instructions given.

There is another and important question in the case. It relates to the nature of the title of a pueblo to its common or pasture lands, and whether, under the laws and customs of Spain and Mexico, the government of the colony could make valid sales within the boundaries of the common so claimed?

This question is now for the first time presented to this court. The defendants in error have filed their brief, containing an elaborate argument; but the plaintiffs in error have not furnished us any. As it is not necessary, to our judgment of affirmance of this case, to give any opinion on this point, we decline any examination of the question on an ex parte argument.

We may give, as an additional reason for this course, that the question depends on the local law, and on the history and custom of the Mexican government and the Governors of California. And since the appeal in this case, it seems to have been adjudged by the local tribunals. (See Hart vs. Burnett, 15 Cal. Rep., 544; and Brown vs. San Francisco, 16 Cal. Rep., 452.)

This decision of a question of local law by these domestic tribunals may well have been considered by the plaintiffs in error as a sufficient reason for abandoning his case without argument here.

Judgment of the District Court affirmed.


text: Talk:Singleton v. Touchard/Opinion of the Court


text:
Clagett v. Kilbourne

Writ of error to the District Court of the United States for the district of Iowa.

The case is fully stated in the opinion of the court.

Mr. Dixon, of Iowa, for plaintiff in error.

Mr. Mason, of Iowa, and Mr. Gillet, of Washington city, for defendants in error.

Mr. Justice NELSON.

title: Clagett v. Kilbourne


text: Talk:Clagett v. Kilbourne

title: Talk:Clagett v. Kilbourne


text:
Clagett v. Kilbourne/Opinion of the Court

This suit is an ejectment by Clagett to recover from the defendant an undivided one-sixth of certain parcels of land situate in the county of Lee, and State of Iowa. The plaintiff claims under a sheriff's deed of the property on a sale under a judgment and execution against one Isaac Galland. The principal question in the case turns upon the effect of this sale and conveyance to pass the title to the purchaser.

An association or joint-stock company was formed in 1836 by several persons, in which Isaac Galland, the judgment debtor, was a member, for the purpose of dealing in the purchase and sale of lands in the State of Iowa, then the Territory of Wisconsin, lying between the Mississippi and Des Moines rivers, known as the Half-breed tract.

By the articles of association, the lands purchased were to be conveyed to certain trustees named, to hold as joint tenants in trust, for the benefit of the persons composing the association. The stock or capital was divided into forty-eight shares, and held in unequal parts by the stockholders representing the moneys paid into the association. Isaac Galland was the owner of 8-48 or one-sixth of the whole.

The articles stipulated that the trustees should purchase the lands situate as above stated, cause them to be surveyed, lay out sites for towns, villages, and cities, as they might deem eligible, and cause the property to be examined in respect to water power and hydraulic privileges, and lay out the same with reference thereto. The trustees were also authorized to sell and convey any part of the lands purchased, and take such securities for the purchase money as they might deem fit, make contracts, and do all lawful acts necessary and proper to carry into effect the objects of the association.

It is then stipulated that the purchase money, and the costs of the improvements, taxes, assessments, &c., were to be charged on the property, and paid out of the first proceeds of the sales; and that the proceeds, after paying all expenses, charges, improvements, disbursements, &c., should be applied to the repayment of the purchase money until the whole amount be paid.

They were to keep regular books of account, in which all the purchases, sales, and proceedings, in respect to the property, should be kept, and semi-annual accounts were to be rendered to the associates; and that, when the trustees should have realized money enough from the sales, and other disposition of the property, to satisfy all the purchase money, improvements, interest, taxes, assessments, &c., their power to sell said property should cease, and a division of the lands and moneys belonging to the association, if any, made among the stockholders.

The lands were to be divided into two classes: the first to include sites of towns, villages, and cities, and hydraulic privileges; the second should embrace the residue of the property, and each class to be divided into forty-eight shares, the original number of shares of the association.

It appears from the bill of exceptions that, in 1841, partition was made of the half-breed tract among the proprietors, and that the trustees of this association drew shares in the tract, among others, numbered 43, 56, 84, and 93.

The judgment against Isaac Galland was recovered in 1843, and the sale took place in 1851. The sheriff's deed is dated in 1852. The lots of which 8-48 parts or one-sixth were sold, and to recover the possession of which this suit is brought, were included in the shares above mentioned, and represent the interest of Galland, as claimed, in the several lots. It was admitted that the defendant was in possession of these lots, and that he claimed titles under deeds from the trustees of the association.

The evidence being closed, the counsel for the defendant took objection to the admissibility of the judgment and sale, on the ground that Marsh, Lee, and Delevan, the trustees, were the sole owners of the land under the partition and decree; and that Isaac Galland had no legal title to the same, upon which the judgment could operate as a lien, or be sold on execution, and the court excluded the judgment, execution, and sale.

The joint-stock company, of which the judgment debtor in this case was a member, constituted a partnership for the purpose of dealing in real estate; and the law governing the rights of creditors, representing the separate debts of a partner, must determine the rights of the plaintiff. The judgment was for the individual debt of Galland, and is sought to be enforced against the partnership funds.

The proceedings for this purpose assume that the share of the judgment debtor in the association is an interest in the lands; and though legal title be in the trustees, is liable to be seized on the execution and sold, and the purchaser put in possession.

The settled law is otherwise. We do not deny but that the execution may be levied on the joint property, with the view of reaching the undivided interest of the judgment debtors; but in such case the levy is not upon his individual share, as if there were no debts of the partnership, or lien on the same, for the balance due to the other partners. It is upon the interest only of the judgment debtor, if any, in the property, after the payment of all the partnership debts, and other charges thereon. The purchaser takes the same interest in the property which the judgment debtor would have upon a final adjustment of all the accounts of the partnership. It is not only an undivided, but an unascertained interest, and the purchaser is substituted to the rights and interests of the judgment debtor in the property sold. Neither does the sale transfer any part of the joint property to the purchaser, so as to entitle him to take it from the other partners; for that would be to place him in a better situation than the partner (judgment debtor) himself.

The remedy of the purchaser is, to go into equity and call for an account, and thus entitle himself to the interest of the judgment debtor, if any, after the settlement of the partnership liabilities.

The fact that the property in this case consists of real estate, does not change the principles of law governing the ultimate rights and interests concerned. The real property belonging to the partnership is treated in equity as part of the partnership fund, and is disposed of and distributed the same as the personal assets.

In this case the legal title is in the trustees, who are bound to account to the stockholders the cestuis que trusts, according to their respective shares, after all debts of the association have been discharged. The equity of the judgment creditor is the interest in the land, after a sufficient portion of it has been disposed of for this purpose.

It is quite clear the plaintiff has mistaken his remedy, as he obtained no title, legal or equitable, to the particular lots in question.

It is proper to add, even if an equitable title had been acquired, it would not have helped him, as it will not sustain an ejectment in the Federal courts. (23 How., 235, 249; 21 ib., 481.)

There are other questions discussed by the learned counsel for the respective parties; but as the examination of them is not material to the decision of the case, we forbear noticing them.

Judgment affirmed.


text: Talk:Clagett v. Kilbourne/Opinion of the Court


text:
Farney v. Towle

Error to the Superior Court of the city of New York.

Inasmuch as this case was dismissed for want of jurisdiction, it is unnecessary to state the argument of counsel upon points not alluded to in the opinion of the court. That opinion contains all that is necessary to a full understanding of the question decided.

Mr. Field, of New York, for plaintiff in error.

Mr. Ellingwood, of New York, for defendant in error.

Mr. Chief Justice TANEY.

title: Farney v. Towle


text: Talk:Farney v. Towle

title: Talk:Farney v. Towle


text:
Farney v. Towle/Opinion of the Court

This is a writ of error to the Superior Court of the city of New York, and the error assigned is that the court maintained the validity of a statute of that State by which new trustees had been substituted in place of those appointed by a testator, and authorized to carry into execution the trusts created by the last will of the deceased. And the plaintiff in error alleges that this law was a violation of that article of the Constitution of the United States which declares that 'no State shall pass any law impairing the obligation of contracts.'

But no such point appears to have been raised in the State court, and this article in the Constitution does not appear to have been even referred to or noticed in any part of the proceedings. The answer of the plaintiff in error, it is true, charges in general terms that the law was unconstitutional and void; but from the context it would seem that this charge was applied to the constitution of the State rather than to that of the United States; and even if it could be construed as applying to the latter, it has repeatedly been declared by this court, as will appear by the reports of its decisions, that in order to give it jurisdiction, it must appear that the point was raised and decided in the State court; that the attention of the court was called to the particular clause of the Constitution of the United States upon which the party relied, and to the right he claimed under it; and that, with the question thus distinctly presented, the decision was against him.

This writ of error must, therefore, be dismissed for want of jurisdiction.

title: Farney v. Towle/Opinion of the Court


text: Talk:Farney v. Towle/Opinion of the Court


text:
Page:Dictionary of National Biography volume 58.djvu/255

 Richard ventured to have Oxford's embalmed body brought over and solemnly interred with his ancestors in Earls Colne priory. He himself was present, and had the cypress coffin opened in order that he might look once more on the face and clasp the hand of his friend. The ceremony was attended by Oxford's mother, by Archbishop Courtenay, and many other bishops, abbots, and clerics. But most of the nobles absented themselves, ‘not yet having digested their hatred of the dead man’ (Annales Ricardi II, p. 185). The funeral cost nearly 300l. (, p. 302).

Our authorities supply but scanty materials for a portrait of Oxford. Those who resented his meteoric advancement over the heads of older and more experienced men professed themselves unable to discover any merit in him that could justify such a preference, and some of them fell back upon the magic spells of a friar in his household as the only possible explanation of the extraordinary influence he won over the king (, ii. 140, 160). There is no reason to suppose that they did him much injustice. In his Irish commission he had a chance of showing his mettle, but, whether the fault was his own or Richard's, the opportunity was let slip. His treatment of his wife cannot be justified, and he seems to have made no attempt to restrain the king's naturally headstrong and violent temper. The case would have to be put much more strongly if it were safe to attribute the change in Richard's tactics from 1388 in any measure to Oxford's removal from the scene. He left no issue; the earldom of Oxford was revived in favour of his uncle, Aubrey de Vere, tenth earl [q. v.] His divorce was annulled by papal bull in 1389, and Philippa, once more his wife, survived him until 1411–12, being always called Duchess of Ireland (, p. 218;, p. 303; , iii. 115). It is thought that the tomb at Earls Colne, surmounted by an effigy with the piked horn headdress, may be her resting-place (Complete Peerage, vi. 166). It has been called Lancecrona's.

Oxford's mother, who was fined and imprisoned under Henry IV (1404) for proclaiming that Richard II was still alive, died on 25 Jan. 1413 (ib. vi. 164;, i. 417, 426–8; ii. 46; Test. Vet. i. 182).

[Rotuli Parliamentorum; Rymer's Fœdera, original ed.; Cal. of Patent Rolls, 1377–84, vols. i–ii.; Walsingham's Historia Anglicana; Malverne's Chronicle (in Polychronicon, vol. ix.); Continuations of Knighton's Chronicle and of the Eulogium Historiarum, Annales Ricardi II (with Trokelowe) and Chartulary of St. Mary's Abbey, Dublin, all in Rolls Ser.; Monk of Evesham's Chronicle and Otterbourne's Chronicle, ed. Hearne; Froissart, ed. Kervyn de Lettenhove; Chronique du Religieux de St. Denys, ed. Bellaguet; Chronique de la Traison et Mort de Richard Deux (ed. Engl. Hist. Soc.); Leland's Collectanea, ed. 1770; Gilbert's Viceroys of Ireland; Nicolas's Testamenta Vetusta; Beltz's Memorials of the Order of the Garter; Dugdale's Baronage; G. E. C[okayne]'s Complete Peerage; Doyle's Official Baronage; Wallon's Histoire de Richard II; Wylie's Hist. of Henry IV.]

VEREKER, CHARLES, second (1768–1842), was the second son of Thomas Vereker of Roxboro, co. Limerick, by his wife Juliana, sister of John Prendergast Smyth, first viscount Gort [see under ]. Vereker, who was born in 1768, was descended from a family of Flemish extraction, long settled in co. Limerick. At the age of fourteen he entered the royal navy, and, serving as a midshipman in the Alexander in the squadron under Lord Howe, participated in the relief of Gibraltar in 1782. Though so young an officer, Vereker's gallantry on this occasion received the warm acknowledgment of his commander; but after a few years' service he retired from the navy and purchased a commission in the army. In 1790 Vereker was returned for the borough of Limerick to the Irish parliament. He retained this position until the union, when he was returned for the same constituency to Westminster, and he held this seat down to his succession to the peerage in 1817. In 1798 Vereker was appointed to the command of the Limerick militia, with the rank of lieutenant-colonel, and in that capacity was in charge of the garrison at Sligo at the time of the French invasion during 1798. After his victory at Castlebar the French general, Humbert, desiring to form a junction with the Ulster insurgents, marched on Sligo at the head of his whole force of sixteen hundred men, and on the morning of 5 Sept. he arrived at Colooney, a village within five miles of that town. Vereker, who had only three hundred men at his disposal, had received orders not to risk an engagement, but believing that the French force at Colooney represented only a detachment of the main army, he marched out to meet it. By skilful handling of his small force Vereker, after holding the enemy at bay for nearly two hours, contrived to effect his retreat to Sligo with but trifling casualties to his own troops. He was, however, himself severely wounded in the engagement. Humbert, conjecturing from his audacity that he was supported by the main body of the British army under Lake [see, first


text:
Crews v. Burcham

Appeal from the Circuit Court of the United States for the northern district of Illinois.

By the treaty of 1832, the Pottawatomie Indians ceded to the United States all their lands in Illinois, Indiana, and Michigan, south of the Grand river; and by the same treaty the United States agreed to grant certain quantities of land to certain members of the tribe-among others, to Francis Besion a half section, to be selected for him by the President after survey. The half section was surveyed, selected, and a patent for it was duly issued in the name of Besion, in 1845. Besion died in 1843. Previous to his death, (and of course before the patent,) he conveyed his interest in the half section of land, to which he was entitled under the treaty, to William Armstrong, with covenants of warranty and further assurance. After Besion's death, and after the patent issued, his sister and sole heir conveyed the half section to Crews and Sherman. The plaintiffs below claim under the deed from Besion to Armstrong, and the defendants hold the title which was conveyed by Besion's heir after his death. The latter parties commenced actions at law against persons claiming through the former, and this bill was brought to quiet the title.

The main question was, whether Besion before the date of the patent had, by virtue of the treaty, such a title as he could convey by deed, or whether the deed to Armstrong was void for want of an assignable interest in the grantor. The defendants insisted that the deed to Armstrong passed no title; that, in fact, no title to this particular land existed out of the United States until the patent; that the patent vested the title in Besion's heirs, and that the deed from Besion's sister gave the whole estate to her grantees.

The Circuit Court held that the grantee of Besion, in his lifetime, took under his deed all the estate which Besion had in the half section; that the patent, when it issued, inured to the use of Armstrong and the parties claiming under him; and that, consequently, the sister and heir of Besion had no estate which could pass to Crews and Sherman by her deed to them.

The incidental points, which were taken on the hearing, are sufficiently stated in the opinion of Mr. Justice Nelson.

title: Crews v. Burcham


text: Talk:Crews v. Burcham

title: Talk:Crews v. Burcham