text: Talk:United States v. Castillero (67 U.S. 17)/Opinion of the Court

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Page:Cournot Theory of Wealth (1838).djvu/18

 4 open the way to more extended developments, and to avoid the digressions of vague argumentation.

There are authors, like Smith and Say, who, in writing on Political Economy, have preserved all the beauties of a purely literary style; but there are others, like Ricardo, who, when treating the most abstract questions, or when seeking great accuracy, have not been able to avoid algebra, and have only disguised it under arithmetical calculations of tiresome length. Any one who understands algebraic notation, reads at a glance in an equation results reached arithmetically only with great labour and pains.

I propose to show in this essay that the solution of the general questions which arise from the theory of wealth, depends essentially not on elementary algebra, but on that branch of analysis which comprises arbitrary functions, which are merely restricted to satisfying certain conditions. As only very simple conditions will be considered, the first principles of the differential and integral calculus suffice for understanding this little treatise. Also, although I fear that it may appear too abstruse to most people who have a liking for these topics, I hardly dare to hope that it will deserve the attention of professional mathematicians, except as they may discover in it the germ of questions more worthy of their powers.

But there is a large class of men, and, thanks to a famous school, especially in France, who, after thorough mathematical training, have directed their attention to applications of those sciences which particularly interest society. Theories of the wealth of the community must attract their attention; and in considering them they are sure to feel, as


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Calais Steamboat Co. v. Scudder Administrator of Van Pelt

Appeal from the Circuit Court of the United States for the District of Maine.

Mr. Curtis and Mr. Hutchins of Massachusetts, for appellant.

Mr. Shepley, of Maine, for appellee.

Mr. Justice NELSON.


text: Talk:Calais Steamboat Co. v. Scudder Administrator of Van Pelt


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Calais Steamboat Co. v. Scudder Administrator of Van Pelt/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States, for the District of Maine.

The bill was filed in the Court below by Scudder, the administrator of John Van Pelt, deceased, against the Steamboat Company, claiming title to thirteen-twentieths of the Steamer Adelaide, as belonging to the estate of his intestate, and a consequence of this interest to the complainant, an account of her earnings, &c.

The respondent set up, by way of defense, title to the whole of the steamer as bona fide purchasers and for full value from one William W. Vanderbilt, in the city of New York.

The case discloses that John Van Pelt, a resident of California, in the spring of 1853, employed Vanderbilt, an engineer and constructor of steamers, to visit the city of New York and there enter into contracts, and superintend the construction of the steamer in question, he, Van Pelt, furnishing the necessary means for the purpose. The contracts were to be made in the name of Vanderbilt, the builders' certificate to be taken and the enrolment, at the custom-house, made in his name as owner. This instruction was given by Van Pelt to Vanderbilt for the avowed purpose of concealing his own name in the construction of the vessel, as, for reasons not material to state, he did not wish it to be known in the city of New York, or in California, that he was interested in her. He was very specific and urgent on this point; for, in one of his late letters to Vanderbilt, written at his request, 13th September, 1853, (he died on the 29th,) he says, 'You are not to know that he (Van Pelt) has any interest in the boat; and, that you must be more particular in talking and writing about her and her destination.'

The boat was built in New York in pursuance of this authority and these instructions. The contracts were entered into for the hull and engines in July, 1853; for joiner-work, painting, &c., at a later date. All made in the name of Vanderbilt. She was finished in September, 1854. In the latter part of August of the same year, two agents of the respondents visited the city of New York for the purpose of buying a steamboat to be put on their line of steamers in the place of one disabled, and saw or had seen the steamer in question advertised in the daily city papers for sale. And, on application to Vanderbilt, and after examination of the vessel and the usual negotiations as to price, on the third of August the purchase was made for the sum of $88,000-$5,000 paid down, $15,000 23d August, and the balance 9th September. Vanderbilt, after having procured the usual builder's certificate, to which he was entitled as contractor for the building of the vessel, had her enrolled in his own name as owner; and then, on the 9th September, executed a bill of sale to the purchasers, under whom the respondents claim title.

Upon this simple statement of the case, it is not to be doubted but that the legal title to this vessel passed to the purchasers; for, although as between Vanderbilt and Van Pelt, his principal, or the estate of Van Pelt, the legal title could not avail, beyond a lien for his services or for any advances; yet, as it respects third persons, who have bought in good faith and for a valuable consideration, the rule is different. The question then arises between two innocent parties, and the equity of the case turns against the party who has enabled his agent or any other person to hold himself forth to the world as having not only possession, but the usual documentary evidence of property in the article. & B. & Cr., 38; 4 D. & A., S.C.; 8 Cow., 238.

The case furnishes a very strong illustration of this principle.

All the indicia of property in this vessel in Vanderbilt existed from no fault of his, for he was clothed with it by the express authority of the principal. Van Pelt, therefore, took upon himself knowingly the responsibility of vesting the property of the vessel in Vanderbilt, as he must have known that it was in his power to deal with it as owner. Besides, he was extensively engaged in the business of steamboats in the waters of California, and doubtless understood, in point of fact, the responsibility he was assuming. Van Pelt died in September, 1853, while this vessel was under contract for construction. The event, however, did not interfere with it, as his legal representatives continued the arrangement the same after as before-furnishing the necessary funds, and carrying on the work till the vessel was finished. They took the place of Van Pelt.

In order to weaken this view of the case, it is said that Van Pelt, before his death, changed the agency of Vanderbilt by the appointment of one D. P. Vail. If this were conceded, unless it had the effect to change the apparent ownership of the vessel in Vanderbilt, the circumstances would be immaterial. No secret arrangements between the parties could affect third persons But there was no change in the instructions to Vanderbilt of any importance in the case. The authority of Vail was confined to the furnishing of the vessel after she was finished, and to the taking charge of her as Captain in carrying her to California. The funds furnished by the owners passed through his hands to Vanderbilt. In one of the last letters written by Van Pelt, 1st September, 1853, to Vanderbilt, before his death, he says-speaking speaking of the vessel-'I wish the bill of sale to be made for D. P. Vail, ten-twentieths; R. Chenery, four-twentieths; R. M. Jessup, three-twentieths; W. W. Vanderbilt, two-twentieths; and Frank Johnson, one-twentieth.'

These instructions to Vanderbilt related to his disposition of the vessel after her completion, the names and shares representing the owners, and their interest. The ten-twentieths in Vail's name represented the interest of Van Pelt, and was placed there to conceal his interest agreeably to his original purpose.

These instructions, whatever may have been their effect upon the parties concerned, had none as it respected the apparent relation of Vanderbilt to the vessel. He remained in possession of her and of all the documentary evidence of property, and was thus held out to the world as the legal owner. Indeed, no change was contemplated in this letter till the boat was finished. Van derbilt then was to give a bill of sale to the persons named, Van Pelt's interest still to be concealed. We lay out of the case, therefore, all the evidence in respect to the connection of Vail with the construction of the vessel, as in no way affecting the ostensible ownership of her by Vanderbilt.

It is insisted, however, that, assuming the respondents obtained the legal title of the vessel by the purchase and bill of sale of Vanderbilt, still the title was defective, inasmuch as they are chargeable with notice of the equitable interest of the estate of Van Pelt. This, in our view of the case, is the only serious question in it.

It is admitted that the respondents paid the full value of the vessel at the time of the purchase-$88,000. They had no motive, therefore, to make the purchase of a vessel of doubtful or defective title. So far as regards the contract of purchase itself, its terms and conditions, there is nothing inconsistent with the most entire good faith. If the vessel had been purchased under her value, or the mode of payment had been prejudicial to the vendor, or any special gain had been achieved by the purchasers, the Court would necessarily approach this question of notice with very different impressions from those proper in this case. Down to this point, the evidence of good faith is undeniable, and must be overcome by the proofs of the adverse party. We go one step further; with such evidence of good faith from the terms and conditions of the contract itself, the proofs to overcome it should be more full and direct, more unequivocal and certain than in the case of a like impeachment of a hard and unequal bargain.

Before we enter upon the proofs on this point, it may be well to ascertain, with some degree of exactness, the precise practical question involved in this charge of notice.

The estate of Van Pelt claims thirteen-twentieths of the vessel, on the ground that the funds of Van Pelt in his lifetime, and of his estate since his death, were furnished to the extent of this interest to build the vessel. The claim is for a latent equitable interest resting in the heirs or personal representatives of the intestate. The remaining interests in the vessel are not in question. It is admitted the other owners authorized the sale, and have received their share of the purchase money. The case, therefore, is brought down to the single question, are the respondents chargeable with notice of this outstanding equitable interest in the vessel at the time of the purchase?

Our first remark is, that all the parties concerned in or connected with the purchase deny notice, and testify to the good faith of the transaction. Vanderbilt and Vail, who were concerned in the sale, and Deming and Todd in the purchase-four persons, each of unimpeachable characters.

This position is sought to be impaired by a critical examination of the testimony of Vanderbilt and Vail, who were examined on interrogatories, and isolated answers are seized on for the purpose of weakening the general denial, and establishing the fact of notice. We shall not go into the detail, but content ourself by stating that we have very diligently examined all the answers of these witnesses relied on in connection with the whole of their testimony on the subject, and they come to this-that the purchasers were advised there were parties in California who had advanced money towards building the vessel; that she was originally intended for employment in the waters of that State; that this purpose had been changed; and that they wished the boat sold, and that they, Vanderbilt and Vail, were authorized to sell her. Now this taken together furnishes neither notice of the equity of the estate of Van Pelt in the vessel to the purchasers, nor is it sufficient even to put them on inquiry. It must be recollected that the burden of proof rests upon the complainant. Taking the whole statement as true and entitled to belief, there is nothing in it to excite the apprehensions of even a prudent business man; for at the same time the purchasers were advised of advances or interests of persons in California, they were advised they had authorized the sale. One part of this statement was as much entitled to belief as the other. The case falls within the principle stated by Lord Lyndhurst in Jones vs. Smith, (1 Phillip, Ch. R., 244).

It must be remembered that this was not a purchase under a power of attorney, and hence a necessity to look to the power and see to the authority.

The purchase was from the apparent owner, possessed of all the indicia of property, and the question is, whether this evidence of ownership is overcome by notice of an outstanding equitable interest in the vessel. The affirmative rests with the party charging notice, and the facts brought home to the knowledge of the purchaser to charge him with notice must be taken together, as the question is, what effect the evidence as a whole should have produced on his mind. Nor should it be forgotten that the persons who had advanced money to Vanderbilt had advanced it for the building of a vessel in his name and as his property.

The same observations are applicable to the testimony of Butler, a witness, who says, there appeared to be a question between the parties regarding the validity of the title to the boat; that Vanderbilt and Vail assured the purchasers that, independent of being builders of the boat, they were duly authorized by all the parties that might have any interest in her in California to sell her on the best terms. This witness does not profess to give the words of the parties, but only the substance of the conversation as he then recollected it.

The testimony of Spencer, who went to New York to become steward on the Adelaide, to the 12th interrogatory, says, 'I understood from both Capt. Vanderbilt and Mr. Demming that John Van Pelt was part owner of the Adelaide;' and to the 15th, he answered, 'they (Vanderbilt and Demming) both told me that the Adelaide was built to go to California; Captain Vanderbilt said they had entered into a combination out there, and the Adelaide was not needed; that they had boats enough out there to do all the business, and that this was the reason why they sold the Adelaide.'

Now, the fact that the boat was built for parties in California, and that they had come to the conclusion she was not needed there, and wished her sold, did not necessarily detract from the right or authority of Vanderbilt to sell, who was invested with the legal title. If she was intended for sale, the presumption would not be an unnatural one that he was thus invested for the very purpose of a sale. As to the testimony of Spencer, that he 'understood from both Vanderbilt and Demming that John Van Pelt was part owner of the Adelaide.' This is hardly evidence in a Court of Justice. It is the inference of the witness from conversation, instead of the conversation itself. It is not the evidence of a fact; a charge of perjury could not be predicated upon it if false.

Wood, another witness relied on to prove notice, beside the indefiniteness of his testimony, the conversation occurred nearly four years after the transaction; after also litigation had sprung up concerning the claim of the estate of Van Pelt. The suit in question was then pending against the respondents, and was naturally the subject of conversation and very easy of misapprehension. This witness also seems to have been in frequent communication with one of the parties in the Van Pelt interest. As a specimen of his testimony-'I asked Demming, I think, how the boat came to be sold here, and I think, Demming or Mayhew told me that a person by the name of Van Pelt owned her, who died in California. I don't know that he said Van Pelt owned her, but that owing to Van Pelt's death she was sold here.'

This witness also says: 'I understood from conversation I had with Demming and Mayhew that they had knowledge of the interest of Van Pelt or of that estate before the boat was purchased.' We need not repeat this is not evidence. This is all the testimony on the question of notice that deserves any comment. We have seen that Van Pelt in his lifetime, and his legal representatives since his death, have studiously concealed their interest in this vessel in the city of New York, and for this purpose caused her to be constructed and finished in the name of Vanderbilt; and, after the appointment of another agent, Vail, to take charge of her after completion, the interest was still to be concealed in his name, thereby holding out a third person as the ostensible owner from the beginning of her construction, till the sale took place in August, 1854. And, although we do not say these parties who have thus enabled their agents to impose upon the purchaser should be estopped from setting up their interest as against him, if he purchases with knowledge, yet we think, under such circumstances, it is the duty of the Court to scrutinize the evidence with more than ordinary attention-the proof of knowledge should be direct and unequivocal. The parties here seeking to prove the knowledge assume a position in contradiction to their past conduct, and are not entitled to the most favorable consideration of the Court. They are endeavoring to charge knowledge of a fact upon third persons or the public, when their interests become concerned, which they had down to the sale industriously concealed.

Some observations have been made upon the circumstances under which the vessel left the port of New York for the East, as tending to impeach the good faith of the purchasers. The proofs on this subject leave no such impression on the mind of the Court. The vessel had been purchased to fill a vacancy on a line of steamboats, and a delay of some ten days had occurred beyond the time fixed for her completion, which reasonably explains any impatience on the part of the purchasers in leaving for the city of Boston. Certainly, the fear of arrest can hardly be inferred from their anxiety, as the vessel was equally exposed to one in the latter city as in the former.

Without pursuing the case further we are satisfied that, upon a full examination of the proofs on the question of notice, they fail to impeach the bona fides of the purchasers, and as the legal title passed, the complainant has failed to establish any right to relief; and, we may add, we are not sorry that we have come to a conclusion in favor of the innocent party who has acted upon the evidence of the legal title of the party from whom the purchase was made against the other innocent party, who had not only been instrumental in furnishing this evidence but has industriously concealed his own, and thus turned the equity of the case against him.

The decree below reversed.

I cannot concur in the opinion just pronounced; and inasmuch as the case is one of importance to the parties, I think it proper to state the reasons of my dissent. Appellee claims title to thirteen-twentieths of the steamboat described in the bill of complaint, as administrator of John Van Pelt, late of San Francisco, in the State of California, deceased. He was the complainant in the Court below, and his claim is based, in the bill of complaint, upon the ground that the money to build thirteen-twentieths of the steamer was furnished by his intestate in his lifetime, or was paid out of his estate since his decease, to redeem certain personal property belonging to the estate which had been pledged by the decedent while in full life to furnish credits to construct and complete the steamer. Title to the whole steamer is claimed by the respondents in their answer by virtue of a purchase made by their agent on the 9th day of September, 1854, of one William W. Vanderbilt. John Van Pelt, on the 1st day of May, 1853, employed William W. Vanderbilt to make a draft for a steamer which he proposed to build in the City of New York, to be employed in navigating the waters of California. Vanderbilt made the draft as requested, and Van Pelt about the same time proposed to him that he should proceed to the City of New York as his agent, and there contract for and superintend the building of the steamer. Prior to that time he had been in the employment of Van Pelt as an engineer in navigating steamers on the waters of the former State. Connected as Van Pelt was, with such navigation, he did not desire that it should be publicly known that he was about to build a steamer of the description mentioned to come to California; consequently, it was arranged between him and his agent that the latter should immediately proceed to the City of New York and make the contracts for the contemplated steamer in his own name, and Vanderbilt testifies that he was to enter the steamer, when completed, at the Custom-house in New York as his vessel, unless he was otherwise ordered by his employer. According to the arrangment as then made the steamer, when completed, was to be sent to California and there wholly transferred to the principal, unless the agent should decide to become interested in her to the extent of two-twentieth parts as it was then contemplated he might do. Full proof is exhibited that Van Pelt advanced $20,000 to his agent towards the enterprize before any of the contracts were actually made for the building of the steamer; $12,000 of that sum was advanced in the month of May, 1853, before the agent sailed for New York, and the balance was duly forwarded to the agent and received by him before any of the payments fell due under the construction contracts. On the 7th day of July, 1853, the agent made the contract with Lupton and McDiarmid to build the hull of the steamer for the sum of $20,000; $5,000 were to be paid when the keel was laid, $5,000 when the vessel was in frame, $5,000 when she was planked and her deck laid, $2,500 when she was launched, and the balance of $2,500 when the carpenter-work was finished. Separate and wholly independent contracts with other parties were made by the agent for the engine, joiner-work, and painting. Payments under all the contracts were to be made by instalments 'as the work progressed,' and in all, except the one first mentioned, it was expressly stipulated that the work should be done to the satisfaction of Vanderbilt. Van Pelt wrote to him on the 1st day of September, 1853, directing that the steamer, when completed, should be registered as follows, to wit: ten-twentieths in the name of D. P. Vail, four-twentieths in the name of Richard Chenery, three-twentieths in the name of R. M. Jessup, two-twentieths in the name of William W. Vanderbilt, and one-twentieth in the name of Frank Johnson. Other correspondence took place between these parties which shows to a demonstration that Vanderbilt was merely the agent of Van Pelt, in contracting for the building of the steamer, and that the original instructions in respect to the registry of the steamer were wholly superseded. When the enterprize was projected Van Pelt had expected to visit New York before the steamer was completed, but his health failing in September, 1853, he was obliged to abandon that intention, and for that and other reasons determined to make some new arrangement in respect to the steamer. Having come to that determination, he sent for Richard Chenery, who, accordingly visited the decedent at Sonoma where he was then sick, and they made an arrangement in respect to the subject-matter of this controversy. Under that arrangement Chenery, for himself and R. M. Jessup, took seven-twentieths of the steamer, and it was agreed that he should have the entire control of the business. Pursuant to that arrangement Chenery paid to Van Pelt seven-twentieths of the $20,000 which the latter had already advanced to build the steamer, and by pledging property they procured a letter of credit on Page, Bacon & Company for an additional sum of $50,000, to be expended in her completion. They also appointed D. P. Vail as their agent, and sent him to New York to adjust and pay the accounts and close up the concerns growing out of the building of the steamer. He took with him the letter of credit and proceeded to New York, but on the 29th day of the same September John Van Pelt died.

Administration was granted on his estate in California in October, 1853, and when closed, it appeared that there was $70,000 for distribution among his heirs, exclusive of his interest in the steamer now in controversy. Thirteen-twentieth parts of the steamer were built from moneys advanced by John Van Pelt, or procured from credits furnished by him in his lifetime, as fully appears by the accounts adjusted and paid by his administrators, and duly presented and allowed in the Probate Court. $48,194.57 were paid by his administrators to redeem the property pledged to procure the before-mentioned letter of credit, and the whole amount so paid by them was expended in the construction of the steamer. $13,000 had been advanced by Van Pelt in his lifetime, as before explained, and the two sums exceed thirteen-twentieths of the cost of the steamer by more than a thousand dollars. Vail proceeded to New York, pursuant to his appointment as agent of Van Pelt and Chenery, but as all the contracts had been made in the name of Vanderbilt, he continued to superintend the completion of the steamer.

Contractors for the hull agreed to complete the same in four months from the seventh day of July, 1853, and the evidence shows that the hull was launched and delivered to Vanderbilt in December following. She was built in Green Port, and after being delivered, she was taken to New York, and in a few days after her arrival there, the proper contractors commenced to put in her engines. More than $56,000 were expended in her construction and equipment, in addition to the sum of $20,000 paid to the builders of the hull. Builders of the hull were paid in full according to the contract, and they delivered the same to Vanderbilt in December, 1853, without reservation or condition.

1. Having received their pay in full, and delivered the vessel without reservation or condition, of course they retained no interest which they could afterwards convey to any one. They built the hull only, and never had any interest, title or claim, in the entire vessel, or in the $56,000 expended for her completion after such delivery. Where an entire vessel is agreed to be built by a contractor, no property vests in the party for whom she is built until she is ready for delivery, and has been accepted or approved by such party. Mucklow vs. Mangles, (1 Taun., 318); Stringer vs. Murray, (2 Barn. & Ald., 248); Merrit vs. Johnson, (7 Johns., 473); Abbott on Ship, p. 5.

But that rule does not prevail where the vessel is constructed under the superintendence of the party for whom she is built, or his agent, and payments for her, based upon the progress of the work, are to be made by instalments, as the work is done. In such cases the person for whom the vessel is built is regarded as the real owner by all the well-considered decisions upon the subject. Woods vs. Russel, (5 Barn. & Ald., 442); Atkinson vs. Bell, (8 Barn. & Cress., 277); Clarke vs. Spence, (4 Ad. & Ell., 448); Laidler vs. Burlinson (2 Mee. & Wels., 602); Chitt. on Con., (10th ed.,) p. 401; Andrews vs. Durant, (1 Ker., 40). Vanderbilt acquired no title by the delivery of the steamer, for the reason that he furnished no money to pay the contractors, and in accepting the same he acted as the agent of those whose money was invested in the enterprise. He took no written conveyance at that time, and the whole evidence shows that he did not then contemplate any fraud upon the rights of those he represented in accepting the delivery. Builders never had any title, because the work had been performed under the superintendence of the agent, and by the terms of the contract the consideration was to be paid, and was in fact paid by instalments, as the work was done.

2. Suppose it had been otherwise, however, it must still be conceded, I think, that no title remained in the builders of the hull after the reception of the consideration, and the unconditional delivery of the steamer under the contract. Title, therefore, must have vested in those who furnished the means to build the vessel, unless it be held that it was in abeyance, which no one will assert. Assuming the facts to be so, then it is clear that the case falls within the rule that when an agent acquires property in his own name by the use of the funds of his principal, it thereby becomes the property of the principal by operation of law. Scott vs. Surman, (Willes R., 400); Taylor vs. Plummer, (3 Maul & Selw., 574, 578); Thompson vs. Perkins, (3 Mason, 235); Story on Ag., sec. 231.

None will deny that title to a ship or vessel may be acquired by building or by purchase; and it is equally clear that it may be established, especially when acquired in the former mode, without the exhibition of any bill of sale or other written evidence. Authorities in this country are abundant to show that the title of a vessel may pass by delivery under a parol contract. Bixby vs. ''Franklin Ins. Co., (6 Pick., 86); U.S. vs. Willings, (4 Cran., 55); Badger vs. Bank of Cumberland, (26 Me., 428); Windover vs. Bageboom, (7 Johns., 308); Vinal vs. Barret, (16 Pick., 401); Leonard vs. Huntington, (15 Johns., 298); Thorn vs. Hicks, (7 Cow., 699; Pars. Mer. L., 329); Stacy vs. Graham, (3 Duer, S.C.., 452); Lord vs. Furgerson'', (1 Mason, 317). Thirteen-twentieths of the steamer vested in the estate of John Van Pelt, in December, 1853, when the builders of the hull delivered the same to Vanderbilt.

3. When that delivery was made, Vanderbilt had no muniments of title whatever, and did not commence to procure them until the 7th of April, 1854, and, in the meantime, $56,000, in addition to what had been paid for the hull, had been expended upon the steamer, and the estate of the complainants' intestate paid thirteen-twentieths of that sum to redeem the property, pledged by the intestate in his lifetime, as before explained. Attention to dates is important on this branch of the case, in order to ascertain when and by what means, if at all, Vanderbilt acquired what is called an apparent legal title. Importance must be attached to the inquiry as to dates, because the opinion of the Court admits in effect that the title in fact, as between the respondents' grantor and the legal representatives of the deceased, was in the estate of the decedent; and it is difficult to see how the admission could have been withheld, as four months intervened after the builders surrendered all pretense of title before any writing of any kind was procured furnishing any color to any such ground of defense. When it is said that Vanderbilt had the apparent legal title, reference is made, I suppose, to the bill of sale from the builders of the hull, to their certificate as master carpenters, and to the enrollment of the steamer at the custom-house. These several papers, it seems, are regarded as constituting what is called an apparent legal title in Vanderbilt; but if they do, it will be seen that they became such by a fraud as base and transparent as was ever perpetrated by a living man upon a dead man's estate. Bear in mind that Vanderbilt was virtually superseded when the new agent was sent to New York to settle the accounts and close the concerns. His subsequent services were rendered as a sub-agent under David P. Vail; but, whether so or not, his agency under his first appointment terminated on the 29th of September, 1853, when John Van Pelt died. He then had no muniments of title, apparent or otherwise, and the whole evidence shows that he never became the agent of the heirs, or legal representatives of Van Pelt's estate. To make up the supposed apparent legal title, his first step was to induce the builders of the hull to give him a bill of sale of the whole steamer. What inducements were held out to them to give the bill of sale does not appear; but it does appear that, on the 7th day of April, 1854-four months after they had delivered the hull without reservation or condition-they gave him a bill of sale of the whole steamer, in consideration of $20,000, as therein expressed with covenants of general warranty applicable to the whole interest and value of the steamer. They generously conveyed not only what they built themselves, but all that was built by others, and warranted the whole to the grantee. Speaking of the sale of a ship, Chancellor Kent says the general rule is that no person can convey who has no title, and the mere fact of possession by the vendor is not of itself sufficient to give a title. 3 Kent Com., p. 130; Williams vs. Merle, (11 Wend., 80.) Observe that the hull was unconditionally delivered by the builders four months before the date of this bill of sale, and it is very evident that after such delivery they retained no interest in the hull or any part of the vessel which they could convey to any one; and they never had any pretence of interest in the engine or the other materials added to the steamer between the time of the delivery and the date of their bill of sale. When that bill of sale was given, no builder's certificate had been filed in the custom-house; but on the 22d day of May following, the builders of the hull filed in the proper office a certificate in the usual form, certifying that the steamer had been built by them at Green Port, in 1854, and that William W. Vanderbilt was the owner. Such a certificate has the effect to show that the vessel was built in the United States, and that she is entitled to be registered as such, and it is required to be filed before the vessel can be registered or removed from the district where built to the district where the owner resides. Act Dec. 31, 1792, sec. 4, 1 Stat. at Large, 289.

4. Certificates given by master carpenters as a compliance with the registry acts are required for certain specified purposes, but they are not instruments of conveyance and cannot properly have the effect, or be so construed as to vest any interest in the person holding the same, as the owner of the vessel, beyond what he has by virtue of some other valid, legal title. Unless these two instruments, taken in connection with the attending circumstances, constituted a legal title in the grantor of the respondents, then it is clear that he had none such, because they are all the muniments of title held by him on the 3d day of August, 1854, when he contracted to sell the steamer to Wm. Deming and Wm. Todd, the agents of the respondents who made the purchase. Conveyance of the steamer, however, was not made by him until the 9th day of September following, and on that day she was enrolled at the Custom-house in his name. Doubts had arisen in regard to her title, and the purchasers and seller respectively employed counsel to make the title satisfactory at the custom-house, which resulted in procuring an enrollment Saturday evening just before the custom-house was closed. Written notice in behalf of the legal representatives of John Van Pelt was given to the Collector of New York on the 22d day of June, 1854, informing him that Van Pelt at his death was the owner of thirteen-twentieths of the steamer, and requesting that she might not be registered or enrolled, or any transfer of her entered at the custom-house without notice to them, but it does not affirmatively appear that the agents of the respondents had any knowledge of that paper. Registry acts are to be considered as forms of local or municipal institutions for purposes of public policy. They are imperative only upon voluntary transfers of the parties, and do not in general apply to transfers by act or operation of the law. 3 Kent. Com., 9th ed., 208. Of itself, the registry it is said is not evidence of property unless it be confirmed by some auxiliary circumstances to show that it was made by the authority of the person named in it, who is sought to be charged as owner. Without such proof, Courts of Justice have expressed strong doubts whether it was even prima facie evidence of ownership. U.S. vs. Brune, (2 Wall, jr., p. 264); Tinkler vs. Walpole, (14 East, 226); Melver vs. Humble, (16 East. 169); Fraser vs. Hopkins, (2 Taunt., 5); Sharp vs. ''United Ins. Co.'', (14 Johns., 381); 1 Greenl. Ev., p. 494. Upon the same ground and for the same reasons it is competent for the real owner who claims as builder to show by parol evidence that his claim is well founded, and that the builder's certificate and registry or enrollment were fraudulently made and issued in the name of another. Such fraudulent acts cannot convey any interest in the vessel, and if not then a claimant whose title has no other foundation cannot convey a good title as against the real owner even to a purchaser without notice, because he cannot convey a title to that which he does not own. Williams vs. Merle, (11 Wend., 80); Everett vs. Coffin, (6 Wend., 609); Prescott vs. Deforest, (16 Johns., 169.)

5. But suppose it to be otherwise, and that the legal title to the steamer was in Vanderbilt at the time he and Vail gave the bill of sale to the agent of the respondent, still the complainant, as it seems to me, is entitled to recover in this suit on the ground that Vanderbilt held the title in trust for the legal representatives of John Van Pelt, and that the agents of the respondent had notice of the defect of title in their grantor. It is admitted that as between the legal representative of Van Pelt and the grantor of the respondents, the title to the steamer was in the former, so that the only question on this branch of the case is that of notice, but it is said that direct and unequivocal proof of notice must be required. Nothing is better settled than the rule that a purchaser with notice of a trust stands in no better situation than the seller, and it is equally well settled that notice to the agent is notice to the principal. Com. Dig. Chan. 4, c. 5; Maddox vs. Maddox, (1 Ves., Jr., p. 62); fulton Bank vs. New York and Sharon Canal Co., (4 Paige Ch. R., 127); Bank of Alex. vs. Seton, (1 Pet., 309). Purchasers with notice are bound in all respects as their vendors were, and have no greater right. Taylor vs. Stibbett, (2 Ves., Jr., p. 437).

6. Until a different rule is established by this Court, I must continue to hold that whatever puts a party upon further inquiry is sufficient notice in equity. Ordinary prudence is required of the purchaser in respect to the title of the seller, and if he fails to investigate when put upon inquiry, he is chargeable with all the knowledge it is reasonable to suppose he would have acquired if he had performed his duty. Hill vs. Simpson, (7 Ves., Jr., 170); Kennedy vs. Green, (3 My. & Keen, 722); (Com. Dig., Chancery, 4, c. 2; Smith vs. Lowe, (1 Atk., 489, 3 Sug. on V. & P., 10th ed., 471); Jones vs. Smith, (1 Hare, 43); Booth vs. Barnum, (9 Conn., 286); Pitney vs. Leonard, (1 Paige, Ch. R., 461); Carr vs. Hilton, (1 Cur., C. C., 390). Constructive notice is held sufficient, upon the ground that when a party is about to perform an act by which he has reason to believe that the rights of a third person may be effected, an inquiry as to the facts is a moral duty, and diligence an act of justice. Hence, says Judge Duer, in Pringle vs. Phillips, (5 Sand., S.C.. R., 157); he proceeds at his peril when he omits to inquire, and is then chargeable with a knowledge of all the facts that by a proper inquiry he might have ascertained. Hawley vs. Cramer, (4 Cow., 717); Williamson vs. Brown, (20 Law R., 397).

7. Applying these principles to the present case, I am of the opinion that the evidence to show notice is full and complete, establishing the fact beyond all reasonable doubt. Respondent's agents, Deming and Todd, were examined as witnesses, and they deny that they heard that any parties in California other than their grantor had any right or interest in the steamer, but the fact is proved to have been otherwise by six or seven witnesses, whose depositions are in the record. Their grantor, Vanderbilt, was examined as a witness, and he respondents asked him whether in the negotiations and interviews he represented him self as acting for any other person than himself, and he stated expressly that he represented himself as acting for himself, David P. Vail, 'and the other owners.' Responding to another interrogatory of a similar character, he said that he represented himself as acting for himself and parties in California who had advanced him money to build the boat, and as if to make it more emphatic and precise, he also said that he did state that parties in California had advanced him money to build the steamer Adelaide; and what is still more important, he also said that he so stated on board the Adelaide some time in August, 1854, and that they, the California parties, wanted the Adelaide sold to realize their money, as he had no other means of paying them. Communications so direct and specifie could not have been misunderstood, and the occasion last referred to undoubtedly was the one when the respondent's agents went on board the steamer to examine her on the day the contract of sale was made. When the last interview took place Vail was out of town, but Vanderbilt says he informed the respondents' agents that Vail represented some parties in California who had advanced money. Some delay occurred in consequence of his absence, but he was sent for and joined in the contract; and Vanderbilt says that he represented to them the position he occupied; that he represented that he was acting as the agent of parties in California who had advanced money for the vessel; and in conclusion, the witness says: 'I always told them there ¢were parties in California who had advanced money for the steamer, but I have no recollection of telling them the names of the parties.'

Vail was also examined as a witness by the respondents. He says it was mentioned at the time that he represented owners in California, and that he consented to the sale by authority of instructions from Mr. Chenery to that effect. Deming and Todd, as the witness stated, understood from Vanderbilt and himself that the vessel was built for parties in California, and that the reason she was sold was because the business had changed there so that the boat was not wanted. We told Mr. Deming, says the witness, that we were acting for parties in California, who wished the boat sold; and we did state that the Adelaide was built for parties in California. Both of these witnesses were examined by the respondents, and it is safe to say-there is no ground to suspect them of any partiality for the complainant. Other witnesses were also examined upon the subject, on the one side or the other, whose testimony is equally explicit. Complainant examined Carlos P. Butler, who wrote the original agreement. He says that there appeared to be a question between the purchasers and the sellers in regard to the validity of the title to the boat. Sellers assured purchasers that, independently of being builders of the boat, they were duly authorized by any party or parties that might have an interest in her in California, to dispose of her on the best possible terms. Want of confidence was evidently felt and manifested in what is now denominated the apparent legal title. Assurances were given that the persons proposing to sell had authority to sell from the real owners; but they exhibited no power of attorney to represent absent owners, or to sell the interest of the complainant's intestate, and no inquiries were made upon the subject. Witness says doubts were expressed as to the power of Vail and Vanderbilt to convey a good title, but Mr. Deming said he was perfectly satisfied with their statement. Their statement was, that they had authority independently of being builders of the boat; but no such authority was exhibited and no inquiries made in regard to it, although the witness states that it was spoken of by all that the steamer was built for parties in California.

Answer of respondent denies all such information, but the evidence proves it and falsifies the answer. Defence must rest where it is placed in the pleadings, and cannot now be shifted. Another witness, examined by the complainant, was John W. Marshall, who testifies that while Deming and Vanderbilt were negotiating on board the steamer, the latter said he wanted to see Captain Vail before he could do anything about selling the steamer, as he (Vail) had power to sell the boat; and the witness adds: Deming knew she was built for parties in California, as we talked about it before we came on. Reference should also be made in this connection to the deposition of John Spencer, who testifies that Vanderbilt and Deming both told him that the Adelaide was built to go to California to run on the Sacramento river; and he expressly states that he understood from both of them that John Van Pelt was a part owner in the Adelaide. Certain conversations between Deming and James Wood, who was examined as a witness, are also given in evidence by the complainant, to the effect that the former stated to the latter, in May, 1858, that the boat was built for parties in California; and the witness thinks that Deming, or the party who introduced him, stated that a person by the name of John Van Pelt, who died in California, owned the steamer. Complainant also refers to the conduct of Deming after the steamer was enrolled at the custom-house as tending to confirm the testimony, offered to show that he had knowledge that the title was defective, and, unless the ordinary rules of evidence are to be wholly disregarded, the circumstances proved are entitled to great consideration. Efforts to make the title satisfactory were not successful until Saturday evening, just before the time of closing the custom-house. While the negotiations for perfecting the title were going on, and only the day before they were closed, an agent of the heirs of John Van Pelt's estate arrived in the city of New York from California to look after this vessel. On his arrival he heard of the sale of the steamer, but having ascertained that she still remained at the wharf, and that she had not been enrolled or inspected, he applied to the surrogate for administration on the estate. All this took place on Saturday; and that evening, after dark, Mr. Deming sent for Mr. Winchester, who had come on to take charge of the steamer as master, and directed him to have the smoke-pipe of the steamer painted that night, signifying at the same time that the steamer would sail on the following morning.

After his arrival in the city of New York, Winchester had acted as master of the steamer, but on Sunday morning William W. Vanderbilt took charge of her as master, and between seven and eight o'clock she sailed for Boston in a storm, when it blew so hard that she had to come to anchor at the mouth of the sound. Whether Deming knew the person who had arrived from California as the agent of the heirs does not appear, but it does appear that he was well known to the sellers of the steamer, and the circumstances afford strong ground to infer that the departure of the steamer was hastened as a means of discouraging further attempts to prosecute the claim. Taken as a whole, I am of the opinion that the evidence shows that the agents of the respondents had actual notice that the title of the sellers of the steamer was defective, and that she was built by monies advanced by parties in California; but at all events I am of the opinion that they had constructive notice that their grantors were not authorized to make the sale, and it is incomprehensible to me how any one who will read the record can come to a different conclusion.

Decree of the Circuit Court, I think, should be affirmed.

I am of opinion that ten-twentieths of the steamboat Adelaide were owned by John Van Pelt in his lifetime, and that the legal title passed to his administrators in California.

That no sale of that interest could be made by those administrators, by the law of California, without an order of Court, and as no such order was made, there was no valid sale of that interest to defendants.

I have not been able to find anything in the case to take the transaction between defendants and Vanderbilt out of rule of caveat emptor. I am of opinion, therefore, that the decree of the Circuit Court should be affirmed, except as to two-twentieths, which I think were the property of Vanderbilt, and one-twentieth the property of Frank Johnson, which, with the other seven-twentieths held by Chenery, passed to defendants by Vanderbilt's sale.


text: Talk:Calais Steamboat Co. v. Scudder Administrator of Van Pelt/Opinion of the Court


text:
United States v. Galbraith.

This was a land claim originating before the Commission appointed under the Act of March 3d, 1851, and coming into this Court by appeal from the decree of the District Court for the Northern District of California.

The petition of John D. Galbraith, John Sime, Richard H. Sinton, and David T. Bagley asserted their right to a tract of land containing four square leagues in Sonoma, called the Bolsa de Tomales, bounded by lands of Juan Viojct, Bartolo Bojorques, the bay of Bodega and the creek (entre) of Tomales, under a grant from the Governor, dated 12th June, 1846, to Juan N. Padilla, whose title by sundry mesne conveyances became vested in the petitioners.

The title papers consisted of 1. A petition for four square leages, signed by Padilla, addressed to the Governor and dated at Monterey, May 14th, 1846. 2. A marginal order of the Governor, dated Los Angeles, May 20th, 1846, directing the Prefect of the Second District 'to report about the state of this land with all the particulars concerning the same,' and declaring that 'when the return is made the Governor will resolve.' 3. A certificate of the Prefect (Manuel Castro) dated May 10th, 1846, that Padilla had made application for the land; that the espediente was in that prefecture; and that the reports show the land to be vacant and grantable. 4. A decree of concession dated June 12th, 1846. 5. A borrador of a grant for five leagues, dated same day. 6. The grant or titulo alleged to be the original and bearing the date of February 12th, 1846, signed by Pio Pico as Governor, and attested by Moreno as Secretary. 7. A certificate dated 14th June, 1846, and signed in the same way by Pico and Moreno, that the grant had been confirmed by the Departmental Assembly.

The last two of these papers were produced by the claimants from their private custody; the other five were brought from the Surveyor-General's Office, where they were found filed, arranged and deposited in the form of an espediente with a class of documents known as being comprised in Hartnell's Index. An account of that Index will be found in United States vs. Knight's adm'rs., (1 Black, 227.)

Parol evidence was given by the claimants to prove the handwriting of Padilla to the petition, of Castro to the informe, of Pico to the order of reference, and of Pico and Moreno to the grant and certificate of approval. Moreno, the Secretary, was himself called, and he testified that the signatures to the grant and to the certificate of approval were genuine and made at the time those documents bear date. On cross-examination, he said that the grant appearing to be dated on the 12th of February, he could not have signed it then, for he was not in office until afterwards, but he must undoubtedly have signed it before the 4th of May, and he was convinced that he did so.

The word Febrero was plainly written as the date of the original grant; all copies of it in the record have it so; and every official translation gives February as the date. The claimants, themselves, at first, recited it as of that date in their petition. But it appeared from the remarks of the Land Commission and otherwise, that the date had been altered by writing Febrero over some other word, probably Junio. Of this alteration no explanation was given to show when, how, or by whom it was made. The paper did not appear ever to have been in any custody but that of the claimants themselves, or the persons from and through whom the title was deduced.

The certificate of approval was shown not to be true by the journals of the Departmental Assembly. It was made certain by these records that no such grant as this to Padilla was ever laid before that body. But there was no evidence in the case besides that of Moreno, to show whether the false certificate was actually made by the Governor and Secretary or by some other person who counterfeited their signatures.

Mr. Hopkins, clerk in the Surveyor-General's Office and keeper of the archives, was a witness in the cause, and gave it as his opinion that the espediente was genuine. His testimony proved that this espediente was numbered 571 on Hartnell's Index, and that the grants in numbers 569, 570, 572, and 573, as well as some others indexed by Hartnell, were originally dated on days subsequent to the conquest, and afterwards altered to other days before the conquest. He regarded these latter grants as fraudulent.

Evidence was given of the occupancy and use of the land by the claimants. It did not establish any clear, notorious or well settled possession previous to the conquest or at any time soon afterwards.

The Land Commission decreed the confirmation of the title with strong expressions of reluctance and much doubt concerning its honesty. That decree was affirmed by the District Court from whence it came up to this Court by appeal where the decree of the District Court was reversed and the cause remitted with directions to take further evidence, (22 How. 89). Much of the evidence referred to above was taken after the cause went back.

The District Court upon the whole evidence considered and adjudged the claim to be well founded in law. The decree in accordance with that opinion was brought to the Supreme Court on this appeal by the United States.

Mr. Black, of Pennsylvania, and Mr. Gillet, of Washington City, for the United States.

The title is not proved. The claimant has produced certain witnesses who swear that in their opinion, the signatures to the several papers, are genuine. This has often been held, not only insufficient and unsatisfactory, but inadmissible. The testimony of Moreno will not help them, because he is not a credible man, and because he has told an incredible story and for the still further reason, that his statement, if believed, is in conflict with the whole theory of their case.

There is no record of the title, and on this point the case in every material fact and circumstance, is precisely that of Knight, decided at the last term. The espediente is among those arranged in 1847-8, by Hartnell, who gathered his materials from the custom-house floor and from other places no better. He did not know a true title from a false one-had not the means of knowing but picked up, put away and indexed whatever he got his hands on.

The reasons which induced the Court last year to reject that index, are strengthened a hundred fold by the evidence which comes up with this record. The testimony of Captain Halleck, showing how the papers were got, did indeed prove that they were just as likely to be true as false; but here we have evidence from the lips of Mr. Hopkins, that some of them are known to be false. The fact is established by affirmative proof that this very espediente, No. 571, lies in the centre of five: the two others on each side of it, are plainly fraudulent. That settles the character of the index, if anything can.

But these title papers bear upon their own face sufficient evidence to insure their condemnation.

The informe is dated ten days before the order of reference. It is barely possible to suppose that this might be an innocent blunder. But the Court is certainly bound to presume nothing in favor of a title which presents such an anachronism. The language of the order and the declaration that when the prefect shall report, the Governor will resolve shows that the report did did not exist then; if it was made afterwards it is falsely dated, and if falsely dated it is a fraudulent paper.

The grant is dated three months before the petition. Now this date is either true or false. If it be true, the title is void; for on the principle of Cambuston's case, the Governor had no power to make a grant without a petition. The claimants seeing this difficulty and seeking to avoid it got into another by asserting that the date has been altered. By whom was it altered? By themselves of course, for it never was in any other custody. How was it altered? Fraudulently; for that is the presumption of law, when there is no explanatory evidence. It is in vain to say that the date of a deed is not material. Of such a paper as this it is the most material part. If it was made before the 14th of May, or after the 7th of July, it is a nullity. It is highly important, therefore, to know whether it was or was not executed at some intermediate time. The claimants did not permit the paper to speak for itself, but obliterated the name of the month and wrote another word over it, so that the true reading can never be known. After having themselves falsely and designedly spoiled the evidence, covered up the truth and put it out of your power, to ascertain when it was made they ask you to supply a date suitable to their interests by mere presumption. If all presumptions were in favor of the spoiler, and if Courts could act on the principle that suitors must be encouraged in falsifying their documents, then the reasonings of the claimants' counsel might have a chance of success; but the rule is directly the severse.

There is another manifest and palpable fraud in those papers. The certificate of approval, is either a forgery out and out, or else it was made by Moreno and Pico with a knowledge that it was false. The claimants' counsel will not choose either horn of this dilemma; but they cannot escape. They introduced the certificate in evidence as a genuine paper, called Moreno to prove it, and he swore to its execution as he swore to the other papers. They gave it up only when the truth as proved by the journals became too strong to be faced down. If Moreno and Pico actually signed it, what is the value of other papers signed by them and proved in the same way? If their names are counterfeited, what shall be the moral status of the party that got it done and used it?

Mr. Hopkins' testimony to a fact is not to be disputed. But his opinion is out of place on this record. He has assumed to give judgment in the cause, and that judgment is manifestly erroneous, being unsupported by evidence, and contrary to the well settled law of the land.

The case of West's Heirs is not to the point. There the title was admitted to have been made for one league; but after the conquest, somebody (not the claimants) changed the grant so as to make it read for two leagues; and the question was whether this attempt to enlarge the grant destroyed it altogether. The Court answered in the negative, and that settled a rule of property. But here we are dealing with the law of evidence. The claimants can support their title only by proving that a grant was issued after the date of their petition, and they produce the original which is dated before the petition. To mend this fatal defect they assert that it was altered by themselves. This is certainly the first case on record of a party producing a paper which vested in him the only title he pretends to have, and asking a decree not because the paper is genuine, but because he alleges it to be a forgery.

A diseno or map is a necessary part of every land espediente, and is distinctly required by the regulations of 1828. There are cases in which its absence has been excused; but not cases like this.

Mr. Ashmun, of Massachusetts, and Mr. Hill, of Missouri, for the claimants.

The possession of the grantee is well made out, and sufficient of itself to give his alienees a right to be confirmed in their title. Alviso's case, 23 How., 318; Wilson's case, 1 Black, 267; De Haro's case, 22 How., 293.

The Court is bound to act upon principles of equity, and therefore to confirm the claim according to the possession, although a suspicious criticism may be able to raise a doubt concerning the completeness of the espediente and the grant.

A map was not necessary in this case. The description of the land was perfect without one. The external boundaries could not be made more distinct by a diagram on paper.

Knight's case is not authority against the validity of this espediente or against the truthfulness of Hartnell's index. Knight's espediente had many infirmities and irregularities, which are not found in Padilla's. It had no informe, nor was any original grant produced, and its genuineness was impeached by proof that Knight was not in a condition to receive such a grant.

Nor is it just to deny the integrity of the index because there are in it some espedientes besides that of Knight which are false Hartnell found them, and though they appeared on their faces to be altered, he did not presume to decide upon the legal effect of those alterations. The index is conclusive on the United States as proof that the espedientes all belonged to the Mexican archives, but the value of each one must depend on the special circumstances connected with it. Knight's case justly fell by its own demerits.

The value of Mr. Hopkins' testimony can hardly be over-estimated. He is (and the counsel on the other side acknowledge it) a most faithful public officer of twenty years experience, an upright man, and every way a credible witness. He pronounces this espediente to be genuine. And there is other evidence besides his to prove the handwriting of the several signatures.

The alteration of the grant by changing the date is immaterial; it would be as valid if made in June as in February. The records show that it was actually made in June; the title was vested before the alteration took place, and the alteration could not operate as a forfeiture. It is not known when, how, or by whom the alteration was made, but it is not important since the archives and other evidence aliunde show that a good title existed before the conquest. The case of West's Heirs is directly in point, and its authority is conclusive.

The certificate of approval is said to be a forgery. This cannot defeat the claimants' right. If it were genuine, its production would be unnecessary. That principle is established in Fremont's case (17 Howard), and by the three cases of Cruz Cervantes, Vaca, and Larkin, in 18 Howard. A good title having been proved cannot be divested by proof that another document offered in support of it is forged. Lloyd vs. Panningham, (16 Vesey, 59).

Mr. Justice NELSON.

title: United States v. Galbraith.


text: Talk:United States v. Galbraith.

title: Talk:United States v. Galbraith.


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

This is an appeal from a decree of the District Court of the United States for the Northern District of California.

The case presents a California land claim filed before the Board of Commissioners April 29, 1852, by the assignees of Juan N. Padilla, to whom the original grant as alleged was made of a tract of land containing five square leagues, 12th of June, 1846, situate in the Department of Sonoma, and known by the name of 'Balsa de Tomales.'

The claim was confirmed by the Commissioners, and on appeal by the United States to the District Court the decree was affirmed. Afterwards an appeal was taken to this Court, where the decree of the District Court was reversed, and the cause remitted to that Court for further testimony. The case will be found reported in the 22 How., p. 89.

This Court, after referring to the grounds of objection to the claim, namely, the unsatisfactory proof of any possession or occupation of the tract, the alteration of the date of the original grant of the title in form, which was in the hands of the grantee and his assigns, and the questionable character of the certificate of approval by the Departmental Assembly produced by the claimants, expressed the opinion, that, in consideration of the doubtful character of the claim and entire want of any merits upon the testimony, the decree below should be reversed and the case remitted for further examination. Since then much additional evidence has been taken by both parties before the District Court, which Court again affirmed the decree of the Commissioners, and the case is now here on an appeal from that decree.

The espediente produced before the Commissioners and Court below, contained the petition of Padilla, dated Monterey, 14th of May, 1846, the informe dated at Los Angelos, 20th of May, the certificate of Manuel Castro that the land is vacant and grantable, dated at Monterey, 10th of May, and the title in form dated at Los Angelos, 12th of June following, the latter signed by Pio Pico, the Governor, and Jose Matias Moreno, Secretary. A certificate of the approval of the Departmental Assembly, signed by the same Governor and Secretary, dated at Los Angelos, 14th of June, same year, was also filed with the papers, together with the original grant which had been delivered to the petitioner, Padilla. This instrument is dated at Los Angelos, 12th of June, 1846, altered to 12th of February of the same year.

The genuineness of the signatures of the Governor and Secretary to these evidences of title is proved by several witnesses, and, among them, by Moreno himself, the Secretary. The fact upon the proofs cannot well be denied, and if there was nothing else in the case affecting the integrity of this title, we could concur with the Court below in confirming it. But two objections are taken to these papers, which, in our judgment, have not been satisfactorily met or explained. The first is, that the certificate of approval by the Departmental Assembly is a fabrication. The records of that Assembly, which are in good condition, prove the fact, and which is admitted in the brief of the counsel for the claimants. It was also so held by the Court below. Now, the signatures of the Governor and Secretary to this certificate are proved to be genuine with the same strength of evidence as they are to the document of the formal title. Moreno testifies with the same fulness to the signatures in the one case as in the other. The fabrication of this certificate, therefore, is not the work of a stranger or of a party interested, but of these functionaries themselves. As their signatures to it are genuine, these persons are necessarily implicated in the fraud, as the certificate could not have been fabricated without their participation. There is no escape from this conclusion. It might have been met by proof that their signatures were forged. This would have relieved them and the title from much of the suspicion and doubtful character resting upon the title, though not entirely, as the use of fraudulent papers by the claimant in support of a claim cannot but excite apprehension and caution. But no attempt was made to prove that these signatures were forged. On the contrary, every witness called and examined in respect to them testifies to their genuineness, and as we have seen, Morena himself, one of them.

This paper was regarded by the public authorities in California as well as by the petitioners for a grant of a portion of the public lands as very important in the perfection of the title. The grant in form by the Governor, in express terms, is made 'subject to the approval of the most excellent Departmental Assembly.' Such is the condition annexed, according to the law of 1824, and the regulations of 1828. This Court has dispensed with the condition in favor of these grants, which were in all other respects unobjectionable.

This paper, therefore, thus fabricated by Pico and Moreno while engaged in making the grant of the land in question to Padilla, cannot but connect itself closely with all the other documentary evidence of the title, especially that portion of it to which their names were essential, namely, the grant of the title in form.

Of the documentary evidence of title, under the Mexican laws, the approval of the Departmental Assembly was next in importance to the grant itself. If it must be admitted that these functionaries have been guilty of fabricating one of the documents to which their names are attached in making out the grant, what assurance have we from the mere fact of the genuineness of their signatures that they have not fabricated the other. Dates of time and place afford no protection, as these can be fixed to the document at the will of the parties. This certificate of approval bears date city of Los Angelos, 14th June, 1846. But these could be fixed to the paper, if fabricated, at any time after it purports to bear date, as well as at the date itself. So as it respects the time and place fixed to the document of the formal title, which purports to have been made at the same place and on the 12th June, 1846. If fabricated, like the certificate of approval, the date or place affords no security of its genuiness. We have no record to detect the fraud, if committed, in respect to the title in form in this case as we have in many of these grants. The usual memorandum is made at the foot of the grant by Moreno, the Secretary, as follows: 'A note has been taken of this dispatch of the Supreme Government in the appropriate book.'

Now, if a note of this grant had been found in the book of records, the Tomada razon, as it is called, of this date, as is certified by the Secretary, it would have been entitled to great weight in relieving the title of much of the suspicion resting upon it. The counsel for the claimants insist that the proof furnished on this point, under the circumstances and condition of the country at the time, should be regarded as equivalent. The Mexican records of these grants which were at the city of Los Angelos in August, 1846, were placed by the Governor in the keeping of one Vignes, in boxes, a short time before he fled from that place, which was on the 10th of that month. These archives came into the custody of Colonel Fremont, and were carried to Sutter's fort, and kept there till 1847, when they were removed to Monterey, and were placed in the charge of Mr. Hartnell, who made an index of the espedientes found among the archives, but not noted in any book. This grant to Padilla was found among them and indexed by Hartnell. Now, the argument is, that it must have been among the Mexican archives in the possession of Pico at the time he placed them in the hands of Vignes when he left the city of Los Angelos. This may be so. But, Pico, Moreno, M. Castro, and Padilla, whose names are connected with the grant, were at the city of Los Angelos from the 22d of July till the 10th of August, when they fled, within which time this grant could have been made and placed among the archives, and during which time the Governor had no authority to make any grant. This Government was in possession of the country as early as the 7th of July, 1846. It will be seen, therefore, that the fact of finding the espediente among the Mexican grants in the hands of Hartnell affords no evidence that it must have been made at its date. We agree, if it was not connected with the other document of title, an admitted fabrication, committed, if we believe the date, two days after the date of the grant, the above facts would be entitled to consideration. But, as we have seen, the fabrication of the grant was as practicable by these parties as that of the certificate of approval consistently with the fact of the deposit of the espediente among the archives at Los Angelos before their removal to Sutter's fort.

It is worthy of remark in this connection, that the certificate of approval and the title in form, both came from the hands of the claimants, and of course both had been delivered by the Governor and Secretary to Padilla, the grantee. They were filed before the Board of Commissioners on the 28th March, 1853, and no explanation in respect to the certificate was given or attempted, either before the Board or the Court below.

The next objection to the documentary evidence of title is the alteration of the date of the title in form from 12th June, 1846, to the 12th February preceding,-the word February over the word June. The only attempt to explain this alteration is found in the testimony of Danglada, a witness for the claimants. He testified before the District Court that the papers were delivered to him by Padilla in the month of December, 1850, for the purpose of making a sale of the lands. That at this time they had been mortgaged by Luco, the owner, to Padilla, and both were interested in the sale. The witness acted as the agent of both. On his examination in chief he testified that the date of the paper was not altered when it came into his hands, nor while in them, and that the alteration must have been made afterwards. But, on cross-examination, his attention was called to a deed executed on the 1st March, 1852, by him, as attorney for others, of this tract, in which is recited the grant by Pico to Padilla as of the date of 12th February, 1846, and he was asked to explain this date, when he was obliged to admit that he might be mistaken. This is all the explanation that has been offered.

The case of the U.S. vs. West's Heirs, (22 How., 315,) has been referred to as an instance of the confirmation of a Mexican grant which was subject to the imputation of a forgery in the alteration of the title in form. The alteration consisted in enlarging the grant of one and a half leagues to two and a half, 'un sitio to dos sitios.' The grant was made to West in 1840. He had been in the possession and occupation of the ranch from 1838 till 1849, when he died. Had made extensive improvements in buildings and cultivation; among other improvements a grist-mill and cultivation of two hundred acres of grain and vegetables, besides a stock of two hundred horses and two thousand cattle. The case is not fully reported in the 22 How., and the above facts are obtained from the original record. The attorney general admitted the grant when made was genuine and honest, and that the only objection to it was the alteration. The papers, after the death of West, came into the possession of the widow and were necessarily entrusted to other hands for the purpose of procuring a confirmation. There was no evidence tending to prove that the alteration took place while in the hands of West, and taking the admission of the government that the original grant was genuine and honest, in connection with the possession and improvements, this Court concurred with the Court below in the confirmation of the league and a half. The features of that case upon the evidence were strikingly different from the present one.

There has been no possession or occupation in this case deserving of notice in aid of the title, or as evidence of any merit on the part of the grantee. Indeed, the weight of it is decidedly against a possession beyond that in common with the owners of other ranches in the neighborhood. The grant was made, according to its date, only twenty-five days before the United States took possession of the country. Padilla had a previous grant of the ranch Roblar de la Miseria, in the same neighborhood, made on the 25th November, 1845, only a few months before the application for the one in question. Some of the witnesses confounded the occupation of this tract for that of the Balsa de Tomales. Another difficulty in the way of yielding our assent to the integrity of this grant is, that as early as the last of May or the first of June, 1846, Padilla was at Sonoma, or in that neighborhood, some five hundred miles from Los Angelos where this grant purports to have been made. He was at the head of a party of Californians in the disturbances which about that time broke out between them and the American settlers, and was charged with having participated in the murder of two of them. He fled about the middle of the month to the south side of the bay of San Francisco and joined the forces of Castro, the commander-in-chief of the Californians; and, according to the evidence of Morena, the Secretary, he came down with Castro and met Governor Pico and party at Santa Marguentta, which was some one hundred and fifty miles below Monterey. Castro and Pico united their forces and passed on to Los Angelos, where they arrived on the 21st or 22d July, and remained till 10th August, when they fled South. It is clear Padilla could not have been at Los Angelos at the time the grant purports to be dated, and ground for strong doubt as to his being at Monterey May 14, at the date of the petition. All the parties to these documents of title, Pico, Moreno, M. Castro, and Padilla, were with the forces of Pico and General Castro at Los Angelos during the nineteen or twenty days they remained at that place. It was within their power to have made this grant while thus remaining together; and, as it is admitted that the certificate of approval of the Departmental Assembly was fabricated by two of them, we cannot but distrust upon all the evidence that the espediente, including all the papers relating to the title, was fabricated in the same way and at the same time.


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


text: Page:Buttered Side Down.djvu/2

title: Page:Buttered Side Down.djvu/2


text:
King v. Ackerman

This case came up on a writ of error to the Circuit Court for the Southern District of New York. It was an ejectment for certain lots now within the limits of the city, and formerly part of the estate of Lawrence Benson, deceased.

Lawrence Benson, at the time of his death, had two tracts of land, which he held in fee, one occupied by himself and one by George Williams. He had one son and two grand-daughters, the children of a deceased daughter. He died in 1822, having made the will copied in the opinion of the Court, by which he gave the Williams' place to his son Benjamin, 'to do and dispose of as he may think proper;' and the Homestead, without words of limitation, charging the devisee with the payment of $1,500, to his grand-children. The lots in controversy were part of the Homestead. The plaintiff, after the death of Benjamin Benson, claimed an interest therein, as one of the heirs-at-law of Lawrence Benson. The defendant asserted his right under conveyances made by Benjamin Benson in his lifetime. The question was, whether the will gave Benjamin a fee in the Homestead, or only a life estate.

On the trial before the Circuit Court, the plaintiff offered evidence, to show that the Williams' place, at the date of the will, and ever afterwards, was worth greatly more than the sum charged upon the devisee in favor of the testator's grandchildren. This evidence was rejected, and Mr. Justice Nelson held that, by the legal and true construction of the will, Benjamin Benson took a fee in both places. Whereupon the plaintiff sued out this writ of error.

title: King v. Ackerman


text:
Page:Cournot Theory of Wealth (1838).djvu/19

 Rh I have felt, the need of rendering determinate by symbols familiar to them, an analysis which is generally indeterminate and often obscure, in authors who have thought fit to confine themselves to the resources of ordinary language. In thinking that they may be led by their reflexions to enter upon this path, I hope that my book may be of some use to them, and may lessen their labour.

In the remarks on the first notions of competition and the mutual relations of producers, they may possibly notice certain relations, which are very curious from a purely abstract standpoint, without reference to proposed applications.

I have not set out to make a complete and dogmatic treatise on Political Economy; I have put aside questions, to which mathematical analysis cannot apply, and those which seem to me entirely cleared up already. I have assumed that this book will only fall into the hands of readers who are familiar with what is found in the most ordinary books on these topics.

I am far from having thought of writing in support of any system, and from joining the banners of any party; I believe that there is an immense step in passing from theory to governmental applications; I believe that theory loses none of its value in thus remaining preserved from contact with impassioned polemics; and I believe, if this essay is of any practical value, it will be chiefly in making clear how far we are from being able to solve, with full knowledge of the case, a multitude of questions which are boldly decided every day.


text: Talk:King v. Ackerman

title: Talk:King v. Ackerman