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Canal Bank v. Hudson/Opinion of the Court

The litigation involved in this appeal is a continuation of that which was before this court in Bank v. Partee, 99 U.S. 325. The plaintiffs in the suit were appellants then and are appellants now. The original bill was filed April 1, 1873, in the circuit court of the United States for the Southern district of Mississippi, by the appellants, as creditors of Sarah D. Partee and William B. Partee, her husband, to secure to them the benefit of a deed of trust executed by the debtors to one Bowman, covering lands in Yazoo county, Mississippi, the object of the deed being to provide for the payment of debts, among which were those due to the appellants. The circuit court excluded the appellants from the benefit of the deed of trust, because of their failure to notify in writing within a time limited by the deed their acceptance of its terms; and that court also held that the title to certain of the land covered by the deed had failed in the trustee because of a paramount title thereto perfected under a judgment recovered against the debtors by one Stewart before the execution of the deed of trust. This court held that, notwithstanding the provision in regard to an acceptance in writing of the terms of the deed, the appellants were entitled to its full benefits, and that the judgment of Stewart was a nullity as respected Mrs. Partee, who was the debtor to Stewart and was the owner of the lands covered by the deed of trust. This court reversed the decree below and remanded the cause for further proceedings, in April, 1879.

Stewart and James D. Partee, a son of the debtors, had become the purchasers of the land sold under the Stewart judgment. In May, 1879, after the filing in the circuit court of the mandate from this court, the appellants filed a supplemental bill. One acre of the land bought by Stewart and a part of the land bought by James D. Partee are involved in that bill and in the present appeal. The original deed of trust was made November 19, 1866. The deed of the sheriff to James D. Partee, on the sale under the Stewart judgment, was made January 4, 1869, the judgment having been recovered June 6, 1866. The land so conveyed to James D. Partee was in quantity equal to five and one-eighth sections, and was all in township 9, of range 4 W., in Yazoo county, embracing land in seven different sections. The land constituted what is known in this controversy as two plantations, called 'No Mistake,' and 'Tyrone.' In February, 1870, James D. Partee and his wife conveyed these plantations to one Barksdale, in trust to secure an indebtedness of $41,500 to the firm of Nelson, Lamphier & Co. Under this deed of trust the plantations were sold and conveyed by the trustee to one Nelson, a member of that firm, in June, 1872. On April 15, 1873, Nelson conveyed the plantations to one Short, in trust to secure an indebtedness of $35,000, embracing 18 promissory notes, to said firm. Two of these notes came to be owned by Joseph P. Benson, and two by Charles C. Ewing, as administrator of S. S. Ewing, and they, with holders of others of the notes, brought a suit in equity, in August, 1876, in the chancery court of Yazoo county, to foreclose said trust deed. A decree of sale was made in January, 1877, and the said Benson and Ewing and one Robert G. Hudson purchased the lands at the sale, in February, 1877. On July 3, 1877, Benson conveyed to Ewing and Hudson all his interest in the plantations. They are the appellees in this appeal.

The plantations were originally the property of one James Dick, who was the uncle of Mrs. Sarah D. Partee. They were known together by the name of 'No Mistake.' By that name they were devised by Dick, by will, to Mrs. Partee. The will was proved in March, 1849. Mrs. Partee's parents were Christopher Todd and Sarah Todd. The will contained these provisions: 'To my niece, Sarah D. Todd, wife of William B. Partee, of New Orleans, and to her heirs, I give and bequeath (1) my plantation, commonly called 'No Mistake' plantation, near Satartia, Yazoo county, state of Mississippi, with all the negroes, horses, mules, cattle, buildings, and farming utensils that may be found on said estate at the time of my death and belonging to me. (2) I give and bequeath to the said Sarah D. Todd and to her heirs about six thousand acres of land, situated in this state, and entered by E. Lawrence and Brashear, in my name. This bequest is made to Sarah D. Todd, wife of William B. Partee, upon the following conditions, under the penalty, in case of non-compliance, of loss of the above property: The first of said conditions is that the said Sarah D. Todd, wife of the said William B. Partee, shall within the next ensuing month after my death pay to Miss Elizabeth Calhoun, of Maury county, state of Tennessee, and to Nathaniel Calhoun, and to Christopher Calhoun, his brother, children of Margaret Todd, wife of Charles Calhoun, and residing in Maury county, Tennessee, the sum to each of twelve thousand dollars; that is to say, to Miss Elizabeth Calhoun the sum of twelve thousand dollars, to Nathaniel Calhoun the sum of twelve thousand dollars, and to Christopher Calhoun twelve thousand dollars, and in the case of the death of either or any of them without issue, then the sum or sums coming to said deceased parties or their heirs to be given to the survivor or survivors, in equal proportions. The second of said conditions is that the said Sarah D. Todd and her heirs shall pay to Christopher Todd and to Sarah, his wife, my sister, one thousand dollars per annum during the life of either, payable as they or the survivor may require it.' The will then gives various lands and legacies in money to various persons named, and then proceeds: 'And my will, as follows: That all the legacies which I have given in money and not charged upon any particular fund is not demandable from any person whomsoever for the term of two years after my decease. * *  * And should any legatee endeavor by action of any kind or nature, before any court in any state, to break, injure, or destroy any of my depositions, the bequest or legacy to such person or persons is annulled or rescinded by me. The legacies of $12,000 each to Elizabeth Calhoun, Nathaniel Calhoun, and Christopher Calhoun may be paid by Sarah D. Todd, wife of William B. Partee, in the following manner, viz.: To Elizabeth Calhoun, on the day of her marriage, and to Nathaniel and Christopher, when they become of age, upon condition that the said Sarah D. Todd pays to the said legatees annually interest at seven per cent. upon their respective legacies, after she comes in possession of 'No Mistake' plantation.'

Mrs. Todd having died in 1853, and Christopher Todd having been paid his annuity up to January 1, 1861, he filed a bill in chancery, in November, 1867, in the chancery court of Yazoo county, against William B. Partee and his wife, claiming that such annuity was a charge on the land so devised to Mrs. Partee, and praying for a sale of the land to pay the arrears due on the annuity. Christopher Todd having died during the pendency of the suit, it was revived in the name of Edward Drenning, his special administrator, and the court, on June 8, 1868, made a decree that there was due to Todd at his death, as an annuitant under said will, $7,680.04; that that sum was a lien on said 'No Mistake' plantation, against all liens created thereon since the death of Dick; and that said land be sold to pay that sum. It was sold, by the same description as in said conveyance to James D. Partee, to said Hudson and Ewing, on April 15, 1878, they being then the owners of the decree in the suit, and they received a deed of that date therefor. In 1871 James D. Partee, as owner of the land, had paid a part of the Drenning decree. In February, 1877, Drenning was paid the balance by Robert G. Hudson, and assigned the decree to him, under an order of the chancery court, the assignment being for the benefit of Benson, Hudson, and Ewing. Afterwards Hudson and Ewing acquired all the interest of Benson therein.

Hudson and Benson, and Charles C. Ewing, individually and as administrator of S. S. Ewing, and Drenning, as executor of Stewart and as administrator of Todd, were made parties to the supplemental bill in this suit. That bill attacks the validity of the Drenning decree and claims an account of the rents and profits of the land. The parties defendant having put in answers, to which there were replications, the court ordered that the controversy as to Hudson and Ewing and Drenning proceed separately.

On the twenty-ninth of November, 1880, that court made a decree setting aside the deeds under which Hudson, Benson, and Ewing obtained title, and decreeing that the deed of April 15, 1878, to Hudson and Ewing, on the sale under the Drenning decree, was subject to the right of redemption of the appellants as junior incumbrancers, under the original trust deed of November 19, 1866; that Hudson and Ewing were entitled to be reimbursed what they had paid to Drenning in purchasing his decree, with interest, that amount being $9,391.23, paid February 5, 1877, and being a paramount lien on the lands in controversy; that Hudson and Ewing were entitled to be reimbursed what they had paid for taxes, and the value of all improvements of a permanent character put on the lands by them, and repairs, but were responsible for a reasonable sum annually for the use and occupation of the lands up to January 1, 1881; that for the balance due them on an accounting they should have a lien on the lands superior to that of the appellants; that the balance, if any, due by them should be deducted from the amount due them on account of the Todd legacy; that the appellants were entitled to foreclose their trust deed and sell the land subject to such prior claim of Hudson and Ewing; that an account be taken by commissioners as to the amount due to Hudson and Ewing on the Todd legacy decree, and for taxes paid, and as to the fair rental value of the lands during the time they had occupied and cultivated or leased the same, and interest on such sums from the time they would usually become due and payable, and of the improvements and repairs put on the lands by Hudson and Ewing, 'and interest on the value of such portions thereof, from the time of payment or making said repairs and improvements, as may have directly contributed to the enhanced rental value of said lands;' that, in estimating the fair rental value of the lands, the commissioners should inquire what they would have brought in money if leased together or separately to a solvent lessee or lessees, on the usual or customary terms of leasing such lands as entire plantations or an entire plantation, whithout reference to any system of underletting pursued by Hudson and Ewing, with as well as without the improvements claimed for by them; and that for all improvements and repairs which directly contributed to enhance the rental value of the lands, the commissioners should allow the original fair cash value, and interest from the date at which they were made or furnished, and for all other improvements which enhanced the permanent value of the lands, their actual value at the time of taking the account.

On the twenty-fourth of November, 1881, the commissioners made their report. It is set forth in the record, but the account annexed to it and the testimony taken by the commissioners are not set forth. The result was that they found due to the appellants by the appellees $8,865.99, and to the appellees by the appellants $37,697.92, and that the balance due to the appellees was $28,831.93. The appellants excepted to the account and the report by 19 exceptions. Thereafter the exceptions were heard by the court, and it filed an opinion, which states that the account is not in accordance with the directions of the court or the equities between the parties. It then proceeds: 'I have examined and re-examined the account filed by the defendants, and have maturely considered the testimony on both sides, and have arrived at conclusions which I am satisfied meet the equities on both sides as nearly as can reasonably be reached.' It then states conclusions of fact on which the rent for 1877 is fixed at $1,000. It then sets forth certain improvements which the defendants made in 1878, and states that they charge therefor $3,199.37, claiming that these improvements were necessary, and enhanced the rental value of the premises; but it says that the improvements 'ought not to have been considered as constituting part of the rents,' but must be considered 'as adding to the permanent value of the lands.' It then says: 'I have closely examined the account, and, making a liberal allowance for the cash value of the same on the first of January, 1881, when the same were surrendered to the receiver, the sum of $2,053.50 is all that should be allowed,' with interest from January 1, 1881. The opinion then sets forth other improvements, which the defendants made in 1878, and states that it was claimed they 'were necessary, and enhanced the rental value of the place, and should be estimated at their original cost, and interest;' but it says that the value of those improvements consisted 'mainly in their permanency, which should be estimated at their cost value when the property was surrendered; but as it did contribute to some extent to the rental value for that and succeeding years' during the defendants' occupancy, $4,897.35 was allowed, 'at a fair estimate' under that rule, as the value of those improvements, being 'more than the permanent value, and less than the cost.' The rent for 1878 was fixed at $1,500. Deducting from the $4,897.35 the rent for the two years, $2,500, left $2,397.35, with interest from January 1, 1879. The opinion then states what improvements the defendants made in 1879, that they 'were of the same character with those erected in 1878,' and that they amounted, 'at an estimate made under the rule above stated,' to $2,997.68, 'from which take the sum of $2,500, as estimated, as a reasonable rent for that year,' which leaves to be allowed $497.68, with interest from January 1, 1880. The opinion then states that the repairs made in 1880 were small, but there were several items charged for improvements made in 1878, 1879, and 1880 not before stated, and which could not be well stated, except as a whole. It then considers at length sundry items, and allows some, and disallows others, and reduces others, and allows for the items, 'all taken together, including improvements made in 1880,' $3,655.16, and deducts from that $3,000, as rent for 1880, leaving $655.16, with interest from January 1, 1881. On the rendering of that opinion it was ordered, by consent of parties, that the opinion and the schedule attached to it (which was a statement of the items and amounts allowed in the opinion) should 'be filed and treated as part of the record in the cause,' and that the court might 'by order, without reference to a commissioner, ascertain and fix the several amounts, as well as the aggregate sum due to the defendants Hudson and Ewing,' under the decree of November 29, 1880.

Thereupon, on the eighteenth of February, 1882, the court made a final decree. That decree states that the case was heard on the exceptions to the report of the commissioners; that the court, being of opinion that said report does not conform to the decree of November 29, 1880, orders 'that said report and the account therewith presented be set aside,' and 'after argument of counsel, proceeding to the decision of the several questions of law and fact involved in the cause,' adjudges that there is 'due to the defendants Hudson and Ewing, under the judgment and findings of the court on said exceptions, on account of the Todd legacy decree,' $12,365.77, and on account of the taxes paid on and by said defendants on the lands, $1,567.44, and that, 'after ascertaining and crediting the amount due for reasonable rents' of the lands, 'there is a balance due to the said defendants, on account of improvements, repairs, and betterments,' of $6,309.60, making a total sum due them of $20,242.83, with interest from that date. The decree then finds the amounts due to the several plaintiffs on their notes, being an aggregate of $47,136.06, with interest from that date, and adjudges that the plaintiffs are entitled to redeem the lands, and that on their paying, within 60 days, to the defendants, the $20,242.83, with interest, they should be substituted to their rights as senior incumbrancers on the lands, and might enforce payment thereof by a sale of the lands; that if the plaintiffs should not pay that sum, then the lien of the defendants and that of the plaintiffs should be enforced, and the lands should be sold, and out of the proceeds the amount so due to the defendants should first be paid. From this decree the plaintiffs have appealed.

The only questions presented by this appeal are as to the allowance in respect of the Denning decree, and as to the allowances for improvements and repairs, and the charges for rent.

It is contended by the appellants that, under the will of Dick, the annuity legacy to Todd and his wife was not a charge on the plantation devised to Mrs. Partee, but was only a personal claim against her, to be enforced by proper proceedings for the forfeiture of the land, on a breach of the conditions specified in the will. The argument made is that the penalty imposed by the will, of loss of the property in case of non-compliance with the conditions, shows that the testator did not intend to create a lien. But we are of opinion that, taking the whole will together, a lien was created. The reference to the prior legacies given in money, and not charged on any particular fund, of which there are many, shows that there must have been some prior legacies in money which were charged on a particular fund, and the fact that no other legacies in money but those which Mrs. Partee is to pay, as conditions on which the plantation is given to her, are given payable by any person as conditions on which property is given to such person, and that there are no other legacies in money which can answer the description of legacies in money 'charged' on a 'particular fund,' all combine to furnish persuasive evidence that the legacies which Mrs. Partee was to pay were a lien on the plantation. The intention of the testator seems to be clear, and the plantation is not inappropriately called a 'fund.' Nor can the lien or charge be limited to the 6,000 acres of land. The conditions attach to the entire bequest, consisting of two items. They apply to the legacies to the three Calhoun children, and to the annuity legacy to Christopher Todd and his wife; and the subsequent provision as to the times when Mrs. Partee may pay the several legacies to the Calhoun children, on condition that she pays them annually interest on such legacies after she comes in possession of the plantation, shows that that plantation is given to her on condition that she pays those legacies, and, if so, such annuity legacy must be in the same category. Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 Paige, 421; Loder v. Hatfield, 71 N. Y. 92, 97.

It is further contended that the Drenning decree, which was made June 8, 1868, was barred, as to its lien, by the Mississippi statute of limitations, when it was purchased by Hudson for himself and Ewing and Benson, in April, 1877. The statute relied on is article 15 of chapter 57 of the Revised Code of Mississippi of 1857, p. 401, in these words: 'No judgment or decree rendered in any court held within this state shall be a lien on the property of the defendant therein for a longer period than seven years from the rendition thereof.' It is plain, we think, that this statute applied only to a judgment or decree rendered in personam against a defendant, for the recovery of so much money, and which became a general lien on the property of the defendant in the judgment or decree by virtue of another statutory provision, such as article 261 of chapter 61 of the same Code, p. 524. Article 15 of chapter 57 has no reference to such a decree as the Drenning decree here, one establishing and enforcing a specific lien on devised property, created by a will, the decree being made in a suit in chancery brought for that especial purpose. The decree adjudges that the amount found to be due was made by the will of Dick a lien and charge on the plantation devised to Mrs. Partee, and decrees that the plantation stand charged with the payment of that amount, against all liens created thereon by the defendants in the suit since the death of Dick. The decree adjudges, it is true, that the defendants pay to the plaintiff the sum so found due, within 30 days, and that, in default thereof, enough of the plantation be sold to pay such sum. But no execution is awarded against the defendants as on a personal judgment, nor is there any provision for a decree for a deficiency. It was held in Mississippi, in Cobb v. Duke, 36 Miss. 60, in 1858, that a court of equity had no jurisdiction to make a decree in personam, for a deficiency on a bill to enforce a vendor's lien on land, or on a bill to foreclose a mortgage. The same principle applies to the lien in question here. The decree did not create a lien, but merely give effect to the lien and charge which the will created. In a decree in personam for the recovery of money, the statute provided for a lien on all the property of the defendant in the county; but this decree affected only the specific property in question, and, as to that, related back and overreached all liens on it since the death of Dick, while a judgment in personam became a lien only from the time it was rendered.

The bill filed by Todd to enforce his lien made defendants only William B. Partee and his wife. Bowman, the trustee in the appellants' trust deed, was not made a party. But, the will of Dick was proved and recorded in Yazoo county, and the appellants, claiming under Mrs. Partee by a subsequent deed of trust, took the land subject to the lien and charge created by the will. The appellants aver, in their original bill, that a letter was written by Bowman, the trustee, two days after the deed of trust was made, to the appellants' attorneys in New Orleans, in a copy of which letter annexed to the bill it is stated, as the result of an examination of the records of Yazoo county, with the view of ascertaining what liens or incumbrances there were on the property of Mrs. Partee, that, under the will of Dick, from whom the property was derived, there was an annuity of $1,000 to be paid to one Todd during his life-time. The only effect of the omission to make Bowman a party to the suit, was to leave the title of a purchaser under the decree in the suit subject to the right of the appellants, as junior incumbrancers, to contest the validity of the prior lien, and to redeem the property. This right has been accorded to them.

The appellants also claim that there should be an abatement of a portion of the amount paid by the appellees to Drenning, to the extent of Mrs. Partee's distributive share in that amount, as a part of the estate of Christopher Todd, her father. In February, 1877, when Drenning received payment of the balance due on the decree, he was the legal owner of the decree. He had not then been made a party to this suit. Mrs. Partee had no claim in respect of any money due on the decree other than such claim as she had to her proper share of the entire estate of her father, in due course of its administration. When the decree was purchased by the appellees no claim of Mrs. Partee was attached to or impressed upon it, or the moneys due or paid on it. She had no title to any specific part of the uncollected legacy, and could not interfere with its collection or administration. When her share in her father's estate should ultimately come to be ascertained, she might, if still owning the plantation, and interested to free it from the charge of the legacy, set off against the decree the amount coming to her from the general estate. But, in the absence of any right, on her part, to any specific share of the legacy, there was nothing to affect or diminish, or extinguish or merge the amount of the charge on the plantation. The Todd estate must be left to its due course of administration, and cannot be interfered with or administered in this suit.

The only material questions remaining are those connected with the allowances for improvements. In a decree made by the court below, in this suit, on November 20, 1879, on a hearing on exceptions to the answer of Hudson and Ewing, it was adjudged that they, claiming title to a part of the property in controversy, under a trust deed executed by Nelson, a defendant in the original bill herein, on the fifteenth of April, 1873, 'prior to any process, publication, or appearance in this cause by said Nelson, are not estopped as to said property by the lis pendens or the proceedings heretofore had in the cause, from answering the original bill,' but 'are proper parties defendant to the said original bill, as having a substantial interest in the original controversy.' The title of Nelson, as a support to any title of the appellees to the land, was destroyed by the decision as to the Stewart judgment. The original bill herein was filed April 1, 1873. Nelson was made a defendant to it. Process of subpoena was issued against him July 8, 1873, but was not served. On November 10, 1873, on an affidavit that Nelson resided in Tennessee, an order of publication against him was made. He appeared on the thirtieth of January, 1874, and answered on the eleventh of February 1874. Meantime, on the fifteenth of April, 1873, Nelson made to Short the deed of trust before mentioned, on a sale under which the appellees purchased the land in February, 1877. The supplemental bill was filed May 27, 1879, after the appellees had acquired all their titles. They were made parties to it, and were served with process, Hudson, June 30, 1879, and Ewing, July 4, 1879. They admit, in their answer, that, at the sale under the Drenning decree, on the fifteenth of April, 1878, one of the attorneys for the appellants appeared and asserted some claim in behalf of the appellants, in the hearing of Hudson. There is nothing more in the record on that subject, and just what the assertion of claim was, or to what extent, does not appear. Their answer alleges that 'they purchased the property in good faith, and went into the possession of the same, believing they had a good title to the same and could hold it against the claims of all the world, and without any knowledge whatever of the claim of complainants, or of this suit, and that they paid, including the Todd decree, the full value of all the property purchased by them, in its then bad and dilapidated condition, and have since enhanced the value of the same very greatly by putting upon it permanent and valuable and not ornamental improvements;' and 'that they are entitled to pay, in case they should be adjudged not to have the title to said property, for the valuable and permanent and not ornamental improvements they have put on said property, up to the time they were served with notice in this case, or, if not entitled to pay for all said improvements up to that date, they are for all said improvements up to the time' of said notification on April 15, 1878. The answer also insists on the validity of the title of the appellees. By consent of parties, and the order of the court made in February, 1880 they were allowed to remain in possession of the land for the year 1880 on giving a bond to account for the fair rental value for that year if the court should finally decide that they should account for said rent. As has been seen, they were alllowed for some improvements to the end of 1880. They entered into possession of the land January 1, 1877, and surrendered possession to the rceiver in this suit January 1, 1881.

It is manifest that the claim for allowances for improvements, set up in the answer, is intended to be based on the provisions of the statute of Mississippi, (Rev. Code 1871, c. 17, art. 4, § 1557,) which enacts that 'it shall be lawful, in all cases, for the defendant in ejectment, or in an action for mesne profits, to plead the value of all permanent, valuable, and not ornamental, improvements made by the defendant on the land, or by any one under whom he claims, before notice of the intention of the plaintiff to bring the action, giving notice, with his plea, of the character of the improvements, and the value thereof; and, if such improvements shall exceed the value of the mesne profits and damages, the jury shall find the actual cash value of such improvements, the value of the mesne profits and damages, and also the actual cash value of the land, without the improvements, and the defendant shall have a lien upon the land for the difference between the value of the mesne profits and the value of the improvements so found; * *  * but no defendant shall be entitled to such compensation for improvements, unless he shall claim the premises under some deed or contract of purchase, made or acquired in good faith.'

The supreme court of Mississippi interpreted this statute, in 1876, in Cole v. Johnson, 53 Miss. 94, in a suit in chancery brought by a person who had bought lands at a void probate sale, and paid for them and put valuable improvements on them, to restrain an ejectment suit against him, and to have an account taken of the rents and profits, and of the improvements and purchase money, the latter having been applied to pay the debts of the estate, and to set them off against each other, and charge on the land the balance due the plaintiff. Such relief was granted. It was urged for the defendants that, as the defects in the probate proceedings were patent on the record, by inspection, the plaintiff was not a purchaser in good faith, and did not pay his money in good faith. The court held that it was sufficient if the money was 'genuinely paid,' without any knowledge or suspicion of fraud, the item 'good faith' being used in contradiction to 'bad faith;' and that the expressions as to 'good faith' in section 1557 did not import that the claim to compensation for improvements could not be maintained if the purchaser could, by any possible research, have discovered the invalidity of his title, and meant nothing more than an honest belief on the part of the purchaser that he was the true owner. The court adopted the rule stated in Green v. Biddle, 8 Wheat, 1, 79, that a bonce fidei possessor' of land is one 'who not only supposes himself to be the true proprietor of land, but who is ignorant that his title is contested by some other person claiming a better right to it;' and that after such occupant has notice of such claim he becomes 'a malce fidei possessor.' It further said: 'Our view is that in order to deprive the occupant of land under color of title of the value of permanent improvements erected thereon there must be brought home to him either knowledge of an outstanding paramount title, or some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title, but that this cannot be inferred merely because it could have been demonstrated by the records of the county.' Speaking of crassa negligentia,' it added: 'Where the purchase is made under circumstances which would warrant the imputation of such negligence to the purchaser, as if, for instance, a deed was received without inquiry, from a mere stranger to the land, who had neither possession thereof nor any actual or apparent claim thereon, the claim of being a bona fide purchaser might well be rejected. But we do not think such imputation can ever be predicated of a judicial sale because of defects in the record, where the land has been bought by a person disconnected with the proceedings, and with no actual notice or suspicion of the irregularities contained in them.'

The circuit court, it is clear, found in this case that the appellees acquired their alleged title in good faith, under the rule thus established. The evidence is not in the record, and must be regarded as sufficient to support such finding. It is shown that the appellees purchased under a tax title in January, 1876, went into possession January 1, 1877, purchased the Drenning decree February 5, 1877, purchased at the sale under the deed of trust from Nelson to Short, February 19, 1877, and purchased at the sale under the Drenning decree April 15, 1878. We do not think that the notice, whatever it was, given at the sale of April 15, 1878, was sufficient to charge the appellees with mala fides, and that there was nothing amounting to the 'notice' specified in the statute, until the process under the supplemental bill was served on the appellees.

The only questionable period left open is that which remained until the close of 1880. The testimony on which the circuit court acted is not before us. It is plain, from the opinion of the court, that, from the testimony it had, it found that the improvements on the plantation, which was a cotton plantation, and the facilities for preparing the cotton crop for market, were dilapidated when the appellees took possession; that the improvements made, and the clearing of more land, in 1878, added 50 per cent. to the rent for that year; and that there was thus constituted a permanent fund for increased rent for after years, so that, with the additional improvements made in 1879, the rent for 1879 was equal to the rent for both of the two preceding years, and the rent for 1880 was increased $500 over that for 1879. The year 1879 must be considered as a whole from January to January. It is impossible to tell, as the proof is not before us, how much was allowed for improvements made in 1880, as the fencing allowed for 1880 is stated in the opinion to have been mostly made in 1878 and 1879, and it states that there are several items of charge for improvements made in 1878 and 1879, and less in 1880, which cannot well be stated otherwise than as a whole. As we have not the testimony which the circuit court had, and it appears to have been carefully and minutely considered by that court, and the appellees appear to have remained in possession during 1880 by consent and under the sanction of an order of the court, we cannot arrive at the conclusion, on this appeal, that the amount allowed ought to be reduced. It is not to be forgotten that the appellants were seeking merely a sale of the land by a resort to a court of equity, and that, while they had the benefit of some of the improvements in increasing rents, that had the benefit of the material and permanent ones in the increased value of the lands for the purpose of sale, including the increased area of cultivated land. In such a case there is no inflexible rule that the allowance for permanent improvements shall not exceed the rental value during the occupancy.

The present case has an analogy to that of a purchaser at a foreclosure sale, who makes valuable improvements in the belief that he has acquired an absolute title. He is entitled to be paid for them if the premises are redeemed. 2 Jones, Mortg. § 428. Where a party lawfully in possession under a defective title makes permanent improvements, if relief is asked in equity by the true owner, he will be compelled to allow for such improvements. 2 Story, Eq. Jur. § 1237, note 1; Bright v. Boyd, 1 Story, 478, and 2 Story, 605 Putnam v. Ritchie, 6 Paige, 390; Williams v. Gibbes, 20 How. 538.

All the questions raised by the counsel for the appellants have been examined and considered, but we have not thought it necessary to comment on others than those above reviewed. Upon the whole case we are of opinion that the decree of the circuit court must be affirmed.


text: Talk:Canal Bank v. Hudson/Opinion of the Court

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text:
County of Dixon v. Field

A. J. Poppleton and J. M. Thurston, for plaintiff in error.

''Wm. L. Joy and Geo. G. Wright'', for defendant in error.

[Argument of Counsel from pages 84-85 intentionally omitted]

MATTHEWS, J.

title: County of Dixon v. Field


text: Talk:County of Dixon v. Field

title: Talk:County of Dixon v. Field


text:
County of Dixon v. Field/Opinion of the Court

This writ of error brings into review a judgment in favor of the defendant in error for the amount of certain overdue coupons upon municipal bonds, purporting to be obligations of the plaintiff in error. The facts upon which the judgment is based are as follows: (1) The defendant in error is the innocent holder for value of the coupons sued on, and of the bonds to which they belong. These bonds are part of a series, 87 in number, being for $1,000 each, payable to the Covington, Columbus & Black Hills Railroad Company or bearer, in New York, on January 1, 1896, with interest from January 1, 1873, until paid, at the rate of 10 per centum per annum, payable semi-annually. They are executed in proper form under the seal of the county, and were issued as a donation to the railroad company in aid of the construction of its road. (2) Each bond contained the recital that it was 'issued under and in pursuance of an order of the county commissioners of the county of Dixon, in the state of Nebraska, and authorized by an election held in said county on the twenty-seventh day of December, 1875, and under and by virtue of chapter 35 of the General Statutes of Nebraska, and amendments thereto, and the constitution of said state, article 12, adopted October, A. D. 1875. (3) On the back of each bond was the certificate of the county clerk, reciting that this issue of bonds was the only one ever made by the county; that 'the question of issuing said bonds was submitted to the people of the county by a resolution of the county commissioners, dated November 24, 1875, in the following form: Shall Dixon county issue to the Covington, Columbus & Black Hills Railroad Company $87,000 ten per cent. twenty years' bonds, payable, both principal and interest, in New York city, and shall a tax be annually levied, in addition to the usual taxes, sufficient to pay interest as it becomes due, and accumulate a sinking fund to pay the principal at maturity?' and, further, 'this question was decided by a vote taken December 27, 1875, of 462 votes for and 120 against.' This certificate is witnessed by the hand and official seal of the clerk, of date May 16, 1876. (4) There was also indorsed on each bond the certificate of the secretary and auditor of the state of Nebraska, dated October 2, 1876, that 'it was issued pursuant to law,' and the further certificate of the auditor, of same date, 'that, upon the basis of data filed in my office, it appears that the attached bond has been regularly and legally issued by the county of Dixon to Covington, Columbus & Black Hills Railroad Company, and said bond, upon presentation thereof by said company, has this day been duly registered in my office in accordance with the provisions of an act entitled 'An act to authorize the registration, collection, and redemption of county bonds, approved February 25, 1875." (5) That the assessed valuation of all the taxable property of the county of Dixon, the plaintiff in error, at the last previous assessment and valuation made in the spring of 1875, and which continued in force until the spring of 1876, and which was shown and appeared from the books of public record of said county, was five hundred and eighty-seven thousand three hundred and thirty-one ($587,331) dollars, and no more, and of which the amount of the bonds, issued in pursuance of said election, was more than 10 per cent., but less than 15 per cent.

The statute referred to, on the face of the bonds, (chapter 35 of the General Statutes of Nebraska,) authorizes any county or city in the state 'to issue bonds to aid in the construction of any railroad or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per cent. of the assessed valuation of all taxable property in said county or city,' with an additional proviso requiring a previous submission of the question of issuing such bonds to a vote of the legal voters of the county or city, in the manner provided by law, for submitting to the people of a county the question of borrowing money. It was also provided that the proposition of the question should be accompanied by a provision to levy a tax annually for the payment of the interest on the bonds as it should become due, stating also the rate of interest and the time when the principal and interest should be made payable. Upon a majority of the votes cast being in favor of the proposition submitted, and a record thereof being made, and public notice given for a specific period of its adoption, it was required that the bonds should be issued. This act took effect February 15, 1869. On February 17, 1875, it was amended so as to require two-thirds of the votes cast at such an election, instead of a mere majority, to be in favor of the proposition, so as to authorize the issue of the bonds.

The constitution of Nebraska took effect November 1, 1875. Section 2, art. 12, of that constitution, is as follows: 'No city, county, town, precinct, municipality, or other subdivision of the state shall ever make donations to any railroad or other works of internal improvement, unless a proposition so to do shall have been first submitted to the qualified electors thereof, at an election by authority of law: provided, that such donations of a county, with the donations of such subdivisions, in the aggregate, shall not exceed ten per cent. of the assessed valuation of such county: provided, further, that any city or county may, by a two-thirds vote, increase such indebtedness five per cent. in addition to such ten per cent., and no bonds or evidences of indebtedness so issued shall be valid unless the same shall have indorsed thereon a certificate signed by the secretary and auditor of the state, showing that the same is issued pursuant to law.'

The defense insisted upon at the trial in the circuit court was that the bonds were issued without authority of law, and were void; and being there overruled, it is now relied on as error in the judgment, for which it should be reversed. In support of the judgment, and of the validity of the bonds on which it rests, it is said that by the terms of the statute of February 15, 1869, as amended by the act of February 17, 1875, authority was given to the county to issue such bonds to an amount not exceeding 10 per cent. on the assessed valuation of the taxable property in the county; that this act was not repealed by the adoption of the constitution, in 1875, but in fact was expressly continued in force by section 1, art. 16, the schedule of that instrument, whereby it was 'ordained and declared that all laws in force at the time of the adoption of this constitution, not inconsistent therewith, etc., shall continue to be as valid as if this constitution had not been adopted;' and that the authority conferred by this act to issue bonds to the extent of 10 per cent. upon the assessed valuation of the taxable property in the county was enlarged and extended by the proviso in the second section of the twelfth article of the constitution, so as, upon a two-thirds vote, which was, in fact, cast in favor of the original proposition, to authorize an issue of bonds to the additional amount of 5 per cent. upon the same valuation, without additional legislative authority.

The construction claimed for the constitutional provision is, that whenever the legislature has authorized an issue of bonds to the extent of 10 per cent. upon the basis named, the constitution operates, upon that authority, ex proprio vigore, and empowers the county officers to submit a proposition for an issue of bonds to the extent of 15 per cent. upon the same valuation, and to issue the bonds accordingly, if sanctioned by a two-thirds vote of the electors of the county. It would result from the adoption of this interpretation that an act of the legislature authorizing an issue of bonds limited to the extent of 10 per cent. upon the assessment, but requiring a previous two-thirds vote in favor of that proposition, would be unconstitutional and void, so far as it sought to limit the right to issue bonds to less than 15 per cent. upon the assessed valuation of the taxable property in the county, it being upon this supposition a constitutional right and power of the county, when the statute authorized an issue of bonds at all, to increase the authorized amount upon a two-thirds vote by the maximum addition fixed by the constitution. Such a construction of the constitution seems to be predicated upon the idea that one of the evils sought to be remedied by such provisions is the reluctance of legislative bodies to grant to municipal corporations susfficiently extensive privileges in contracting debts for purposes of internal improvement; but the history of constitutional amendment does not seem to us to justify this assumption. On the contrary, we regard the entire section as a prohibition upon the municipal bodies enumerated, in the matter of creating and increasing the public debts, by express and positive limitations upon the legislative power itself. There must be authority of law, that is, by statute, for every issue of bonds as a donation to any railroad or other work of internal improvement; and the election required as a preliminary may be determined by a majority vote, if the legislature so prescribes, in which event the amount of the donation of the county, with that of all its subdivisions, in the aggregate shall not exceed 10 per cent. of the assessed valuation of the taxable property in the county; but the legislature may authorize an amount, not to exceed 15 per cent. on the assessment, on condition, however, that, at the election authorized for the purpose of determining that question, the proposition shall be assented to by a vote of two-thirds of the electors. It would be an anomalous provision that whenever statutory authority was given to issue a prescribed amount of bonds it should operate as an authority, upon a popular vote, not otherwise directed, to issue an amount in addition. We cannot think it was any part of the purpose of the constitution of Nebraska to enable a county either to add to its existing or authorized indebtedness any increase, without the full sanction of the legislature, and are persuaded, on the contrary, that the true object of the proviso is to limit the power of the legislature itself, by definitely fixing the terms and conditions on which alone it was at liberty to permit the increase, as well as the creation of municipal indebtedness.

The language of the proviso that seems to countenance a contrary construction, by words apparently conferring immediate power upon counties to increase their indebtedness, must be taken in connection with the express and positive prohibition of the body of the section. This denies to municipal bodies all power to make any donations to railroads or other works of internal improvement, except by virtue of legislative authority and an election held to vote on the particular proposition in pursuance thereof. The proviso makes a special rule for a special case, and authorizes an additional amount of indebtedness, but only to be contracted in the contingency mentioned, and subject to the condition already prescribed for all donations, that is, by means of an election to decide the question submitted, held in pursuance of statutory authority. An indebtedness to the extent of 10 per cent. on the assessed value of the taxable property may be authorized by statute, to be sanctioned by a mere majority of the popular vote; but no more than that amount shall be permitted by the legislature, except when approved by two-thirds of the electors; and in no event more than 15 per cent. upon the assessment, in the aggregate, including any pre-existing indebtedness. Whether the whole amount of indebtedness authorized by the constitution, to the extent of 15 per cent. on the assessed value of the taxable property, may be contracted, by authority of an act of the legislature authorizing its creation, at one election, upon a single vote, it is unnecessary to decide, for, in the present case, there was no legislative authority to create a debt in excess of the 10 per cent. upon the assessment.

These views coincide with those expressed by the supreme court of Nebraska in the case of Reineman v. C., C. & B. H. R. Co. 7 Neb. 310, where the very question raised here was discussed and decided; so that the construction we have adopted of the constitution of the state we cannot but regard as not only correct in itself, but as now the settled rule of decision, established by the highest judicial tribunal of the state. It follows that the bonds in question were issued without warrant of law, and, if the defense is permitted, must be declared void, and insufficient to support the judgment.

But it is argued on the part of the defendant in error that the plaintiff in error is estopped, by the recitals in the bonds, to allege their invalidity on this ground. The recitals in the bonds, which are relied on for this purpose, are as follows: 'This bond is one of a series of eighty-seven thousand dollars issued under and in pursuance of an order of the county commissioners of the county of Dixon, in the state of Nebraska, and authorized by an election held in the said county on the twenty-seventh day of December, A. D. 1875, and under and by virtue of chapter 35 of the General Statutes of Nebraska, and amendments thereto, and the constitution of the said state, art. 12, adopted October, A. D. 1875.' These recitals, in conjunction with the certificate of the county clerk, and those of the secretary and auditor of state, it is claimed, declare a compliance with the law in the issue of the bonds, which, as against an innocent holder for value, cannot now be questioned. The sixth section of chapter 35 of the General Statutes, act of February 15, 1869, provides that 'any county or city which shall have issued its bonds in pursuance of this act shall be estopped from pleading want of consideration therefor;' and an act passed February 25, 1875, authorizes the registration of county bonds with a view to their collection and redemption. It requires the county officers, in the first place, to make registration of all the named particulars in respect to the bonds issued by them, a certified statement of which, made out and transmitted by them, is required to be recorded by the auditor of state. Whenever the holders of county bonds shall present the same to the auditor of state for registration, the auditor, upon being satisfied that such bonds have been issued according to law, it is further provided, shall register the same in his office, in a book to be kept for that purpose, in the same manner that such bonds are registered by the officers issuing the same, and shall, under his seal of office, certify upon such bonds the fact that they have been regularly and legally issued, and that such bonds have been registered in his office in accordance with the provisions of the act. This registration is made the basis on which he ascertains the amount of taxes annually to be levied to meet the accruing interest and sinking fund to be certified to the county clerk, who is to ascertain and levy the tax for that purpose, to be collected and paid to the county treasurer. The section of article 12 of the constitution already cited, requires, as essential to the validity of municipal bonds, an indorsement thereon of a certificate signed by the secretary of state and auditor of state showing that the same is issued in pursuance of law. No conclusive effect is given by the constitution or the statute to this registration, or to these certificates; and in the consideration of the question of estoppel they may be laid out of view. In any event, they could not be considered as more comprehensive or efficacious than the statements contained in the body of the bonds, and verified by the signature of the county officers and the seal of the county, except as additional steps, required to be taken in the process of issuing the bonds and rendered necessary to their validity.

Recurring then to a consideration of the recitals in the bonds, we assume, for the purposes of this argument, that they are in legal effect equivalent to a representation, or warranty, or certificate, on the part of the county officers, that everything necessary by law to be done has been done, and every fact necessary by law to have existed, did exist to make the bonds lawful and binding. Of course, this does not extend to or cover matters of law. All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority, by declaring that its assumption was within the law. This would be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law itself. And the estoppel does not arise, except upon matters of fact which the corporate officers had authority by law to determine and to certify. It is not necessary, it is true, that the recital should enumerate each particular fact essential to the existence of the obligation. A general statement that the bonds have been issued in conformity with the law will suffice, so as to embrace every fact which the officers making the statement are authorized to determine and certify. A determination and statement as to the whole series, where more than one is involved, is a determination and certificate as to each essential particular. But it still remains that there must be authority vested in the officers, by law, as to each necessary fact, whether enumerated or non-enumerated, to ascertain and determine its existence, and to guaranty to those dealing with them the truth and conclusiveness of their admissions. In such a case, the meaning of the law-granting power to issue bonds is that they may be issued, not upon the existence of certain facts to be ascertained and determined whenever disputed, but upon the ascertainment and determination of their existence, by the officers or body designated by law to issue the bonds upon such a contingency. This becomes very plain when we suppose the case of such a power granted to issue bonds upon the existence of a state of facts to be ascertained and determined by some persons or tribunal other than those authorized to issue the bonds. In that case, it would not be contended that a recital of the facts in the instrument itself, contrary to the finding of those charged by law with that duty, would have any legal effect. So, if the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officers charged with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be that the authority to act at all depended upon the actual objective existence of the requisite fact, as shown by the record, and not upon its ascertainment and determination by any one; and the consequence would necessarily follow that all persons claiming under the exercise of such a power might be put to proof of the fact made a condition of its lawfulness, notwithstanding any recitals in the instrument.

This principle is the essence of the rule declared upon this point, by this court, in the well-considered words of Mr. Justice STRONG, in Town of Coloma v. Eaves, 92 U.S. 484, where he states (page 491) that it is, 'where it may be gathered from the legislative enactment that the officers of the municipality were invested with the power to decide whether the condition precedent has been complied with,' that 'their recital that it has been made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.' The converse is embraced in the proposition and is equally true. If the officers authorized to issue bonds, upon a condition, are not the appointed tribunal to decide the fact, which constitutes the condition, their recital will not be accepted as a substitute for proof. In other words, where the validity of the bonds depends upon an estoppel, claimed to arise upon the recitals of the instrument, the question being as to the existence of power to issue them, it is necessary to establish that the officers executing the bonds had lawful authority to make the recitals, and to make them conclusive. The very ground of the estoppel is that the recitals are the official statements of those to whom the law refers the public for authentic and final information on the subject. This is the rule which has been constantly applied by this court in the numerous cases in which it has been involved. The differences in the result of the judgments have depended upon the question whether, in the particular case under consideration, a fair construction of the law authorized the officers issuing the bonds to ascertain, determine, and certify the existence of the facts upon which their power, by the terms of the law, was made to depend; not including, of course, that class of cases in which the controversy related, not to conditions precedent, on which the right to act at all depended, but upon conditions affecting only the mode of exercising a power admitted to have come into being. Marcy v. ''Tp. of Oswego, 92 U.S. 637; Com'rs v. Bolles, 94 U.S. 104; Com'rs v. Clark'', Id. 278; Co. of Warren v. Marcy, 97 U.S. 96; Pana v. Bowler, 107 U.S. 529; S.C.. 2 SUP. CT. REP. 704.

In the present case there was no power at all conferred to issue bonds in excess of an amount equal to 10 per cent. upon the assessed valuation of the taxable property in the county. In determining the limit of power there were necessarily two factors: the amount of the bonds to be issued, and the amount of the assessed value of the property for purposes of taxation. The amount of the bonds issued was known. It is stated in the recital itself. It was $87,000. The holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated, but, ex vi termini, it was ascertainable in one way only, and that was by reference to the assessment itself, a public record equally accessible to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount, as fixed by reference to that record, that is made by the constitution the standard for measuring the limit of the municipal power. Nothing in the way of inquiry, ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exercise of their functions and the performance of their duty, but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it.

The case is to be distinguished from Marcy v. ''Tp. of Oswego, supra'', where, although it was provided that the amount of the bonds voted by any township should not be above such a sum as would require a levy of more than 1 per cent. per annum on the taxable property of such township to pay the yearly interest, it was held that the existence of sufficient taxable property to warrant the amount of the subscription and issue, it not being designated as fixed by the assessment, was one of those prerequisite facts to the execution and issue of the bonds, which was of a nature that required examination and decision, and had been referred by the statute to the inquiry and determination of the board.

In Sherman Co. v. Simons, 109 U.S. 735, S.C.. 3 SUP. CT. REP. 502, the county commissioners were constituted by the statute the tribunal for the purpose of determining the amount of the indebtedness, in excess of which the bonds were not to be issued, and their decision was accordingly held to be conclusive.

On the other hand, it is within the principle of the decision in Buchanan v. Litchfield, 102 U.S. 278, where it was said, (p. 289,) that 'the purchaser of the bonds was certainly bound to take notice, not only of the constitutional limitation upon municipal indebtedness, but of such facts as the authorized official assessments disclosed concerning the valuation of taxable property within the city for the year 1873.' And it is directly within the decision in ''Nat. Bank v. Porter Tp.'' 110 U.S. --; S.C.. 4 SUP. CT. REP. 254. In that case the existence of the power to issue the township bonds in suit depended upon the fact that the county commissioners had not been previously authorized by a popular vote, or an unreasonable delay in taking one, to make a subscription on behalf of the county. It was there said: 'Whether they had not been so authorized-that is, whether the question of subscription had or had not been submitted to a county vote, or whether the county commissioners had failed for so long a time to take the sense of the people as to show that they had not, within the meaning of the law, been authorized to make a subscription were matters with which the trustees of the township, in the discharge of their ordinary duties, had no official connection, and which the statute had not committed to their final determination. Granting that the recital in the bonds, that they were issued 'in pursuance of the provisions of the several acts of the general assembly of Ohio,' is equivalent to an express recital that the county commissioners had not been authorized by a vote of the county to subscribe to the stock of this company, and that, consequently, the power conferred upon the township was brought into existence, still it is the recital of a fact arising out of the duties of county officers, and which the purchaser and all others must be presumed to know did not belong to the township to determine, so as to confer or create power, which under the law did not exist.'

We hold, therefore, that the plaintiff in error is not estopped by the recitals in the bonds to deny their validity; and that, having been issued in contravention of the constitution of the state, they are without warrant of law, and are void. The judgment of the circuit court is therefore erroneous, and must be reversed; and, as the facts appear upon the pleadings and by a special verdict, the cause is remanded, with directions to enter judgment for the defendant below; and it is so ordered.


text: Talk:County of Dixon v. Field/Opinion of the Court


text:
McMurray v. Mallory

[Syllabus from pages 97-98 intentionally omitted]

Benjamin Price, for appellants.

Sebastian Brown and ''Robt. H. Smith'', for appellees.

WOODS, J.

title: McMurray v. Mallory


text: Talk:McMurray v. Mallory

title: Talk:McMurray v. Mallory


text:
McMurray v. Mallory/Opinion of the Court

This bill was filed September 2d, 1879, by Louis McMurray, Edward M. Lang, and George Burnham, doing business as a firm under the name of McMurray, Lang & Burnham, against Dwight D. Mallory and Jesse C. Luddington, doing business as a firm under the name of D.D. Mallory & Co., to restrain the infringement by them of two certain letters patent. The first was a reissued patent "for certain new and useful improvements in soldering machines," the original of which had been granted to Abel Barker, May 17th, 1870, reissued to Edward M. Lang, one of complainants, January 11th, 1876, and again reissued to him July 1st, 1879; the second was a reissued patent for an "improvement in soldering irons," the original of which had been granted to Jabez A. Bostwick, June 21st, 1870, and reissued October 29th, 1878, to E.M. Lang & Co.

The answer of the defendants denied the infringement of either of the patents on which the suit was brought, denied that either Barker or Bostwick was the original inventor of the improvements for which the original letters patent were issued to them respectively, denied that either of the letters patent were ever surrendered according to law, and alleged that the reissues were not for the same inventions as those described in the original letters patent. Upon final hearing the Circuit Court dismissed the bill, and the complaints have brought that decree under review by this appeal.

We shall first consider the Barker patent. The original patent was described in the specification as "a new and useful machine for opening and closing or sealing fruit, oyster, and all other cans, hermetically sealed." The specification was illustrated by drawings as follows:

They were described thus: "Figure 1 is a vertical section; Figure 2 is a representation of the machine as applied to a can in opening; Figure 3 as applied in closing or sealing with the disk withdrawn and the sliding-rod pressed upon the cover to hold it until the solder or sealing material hardens." The specification then proceeds as follows:

"In constructing this machine I make the disk or casting A of sufficient thickness to retain the heat, and of suitable size to cover the lid of the can, with the recess B in the under side to give room for the convex lid of the can, and to confine the soldering process to the outer edge of the lid or cover.

"To this disk I connect the handle C, of sufficient length to hold when heated.

We shall first consider the Barker patent. The original patent was described in the specification as 'a new and useful machine for opening and closing or sealing fruit, oyster, and all other cans, hermetically sealed.' The specification was illustrated by drawings, as follows:

They were described thus: 'Figure 1 is a vertical section; figure 2 is a representation of the machine as applied to the can in opening; figure 3 as applied in closing or sealing, with the disk withdrawn and the sliding-rod pressed upon the cover to hold it until the solder or sealing material hardens.' The specification then proceeds as follows: 'In constructing this machine I make the disk or casting, A, of sufficient thickness to retain the heat, and of suitable size to cover the lid of the can, with the recess, B, in the under side to give room for the convex lid of the can, and to confine the soldering process to the outer edge of the lid or cover. To this disk I connect the handle, C, of sufficient length to hold when heated. At the side of and parallel with the handle I connect the small rod or wire, D, with a loop or ring connecting it with the handle at the top and bottom, passing through the disk, A, so as to allow it to slide up and down.'

The process of sealing a can was thus described: 'The disk, A, is sufficiently heated to melt the solder. The rod, D, is pushed down through the disk, and placed upon the center of the cover to hold it. The heated disk is then to be pushed down, in contact with the solder or sealing material till it is melted, then turned back and forth till the solder is spread evenly around the lid. The disk is then to be withdrawn, with the rod, D, still pressed upon the lid, till the solder or sealing material sets or hardens, when the operation is completed.'

The claim was as follows: 'The disk, A, with the recess, B, in the under side, as set forth, in combination with the movable rod or wire, D, to hold the lid while resealing or closing.'

The specification of the reissue upon which the suit is brought, and the drawings and the description of the drawings, were substantially the same as for the original patent. It is apparent, therefore, that the reissue was not for the purpose of making the original specification more full, accurate, or intelligible, or for the purpose of eliminating from it what the inventor had not the right to claim as new. The claims of the reissue, which were five in number, were as follows:

'(1) In a soldering machine, a rod adapted to hold the can cap or lid in place, in combination with a soldering-iron mounted upon and arranged to be rotated about said rod, substantially as described.

(2) In a soldering machine, a rod adapted to hold the can cap or lid in place, in combination with a soldering-iron sliding upon said rod and adapted to be rotated about it, as set forth.

(3) In combination with a soldering tool or die, the rod, D, in passing through said tool or die to hold the can cap or lid in the process of soldering, substantially as described.

(4) In a soldering machine, the combination, with a soldering tool conforming in shape to the cap to be soldered, of an independently movable rod, D, upon which the said tool is mounted, substantially as described. (5) The disk, or tool, A, with the recess, B, in its under side, in combination with and mounted upon the independently movable rod or wire, D, as set forth.'

The proof showed that the defendant used the instrument described in the letters patent issued to Tillery & Ewalt, May 21, 1872. The specification of these letters was illustrated by the following drawing:

The specification described the invention as follows: 'The invention consists-First, in making a soldering-tool adjustable radially from a hinge-joint, in order to adapt the same tool to be used with caps of varying size; second, in moving said tool out and in, at the same time fixing it at any point of adjustment by means of a screw that has a loop-head through which passes the holder. A represents our soldering-toll, provided with the cap-holder, B, which maintains the cap in position while the soldering iron, C, is rotated. D is a stock, in which the shank, d, of soldering-iron is held at any point by a clamp-screw, d. E is the body, in which the stock, D, is hinged at e, while the holder, B, passes vertically and loosely there through. F is a screw, having loop-head, f, which connects the said holder, B, and stock, D, while it allows them to be spaced at any desired distance apart. In order to effect a change in the radial distance between the centering holder, B, and the stock. D, that holds the soldering-iron, the holder is first removed and the screw, F, moved in or out. The advantages of this tool consist-First, in the archshape, by which we can see at a glance any point which has been left unsoldered or imperfectly soldered, and which defect can be remedied at once, without removing the tool; second, in the option that it allows us using either wire solder or the cheaper drop solder, thereby saving one-half the expense.'

There is no doubt that the first three claims of the reissued patent of Barker cover the device here described, but are void, because they are, each of them, broader than the claim of the original patent. The claim of the original patent was for a combination; that is to say, a combination of the disk, A, with the recess, B, on its under side, and the movable rod, D, to hold the lid of the can while resealing or closing. The specification mentioned a disk, and particularly described and illustrated it as forming a part of the combination. By its size, shape, and the recess in its under surface, it was designed to perform certain specified functions. It was made thick so as to retain the heat; it was made circular like the lid of the can, and of sufficient diameter to cover the lid, so as to reach its outer edge, where the soldering was to be done, and it had the recess in its under side sufficient to give room for the con vexity of the lid so as to confine the soldering process to the outer edge of the lid. The patent did not, therefore, include every soldering-iron of whatever form and shape. In the case of Brooks v. Mears, 16 Pet. 366, it was said of a patent for a combination consisting of three parts, that 'the use of any two of these parts only, or of two combined with a third, which is substantially different in form, or in the manner of its arrangement and connection with the others,' is not an infringement. 'It is not the same combination if it substantially differs from it in any of its parts.' The disk, therefore, in the Barker patent, substantially as described, is an essential element of the combination covered by that patent.

In the reissue the first three claims of the Barker patent are expanded so as to include all soldering-irons, no matter what their shape or size, or specific advantages, in combination with the movable rod, D. The contention of the appellants that a device so unlike the soldering-tool described in the original Barker patent as the Tillery & Ewalt tool is embraced by the first three claims of the reissue, is striking proof of the expansion of the original claim. It is plain that the claims mentioned include many soldering devices not covered by the original patent. The claims are therefore void. Gill v. Wells, 22 Wall. 1; The Wood Paper Patent, 23 Wall. 566; Powder Co. v. Powder Works, 98 U.S. 126; Ball v. Langles, 102 U.S. 128; Miller v. Brass Co. 104 U.S. 350; James v. Campbell, Id. 356; Heald v. Rice, Id. 737; Johnson v. Railroad Co. 105 U.S. 539; Bantz v. Frantz, Id. 160; Wing v. Anthony, 106 U.S. 142; S.C.. 1 SUP. CT. REP. 93.

The fourth and fifth claims of the reissued Barker patent are not, in our opinion, infringed by the defendants. The fourth claim embraces as one element of the combination a soldering-iron in shape of the cap or lid to be soldered. The shape of the iron is expressly made an essential part of the combination. This element is wanting in the Tillery & Ewalt device used by the defendant. The soldering-iron used by them is totally unlike in shape a cap or lid, or the disk described in the Barker patent. One of the two elements of the combination covered by the fourth claim of the Barker reissue is therefore clearly wanting in the Tillery & Ewalt device, and there can consequently be no infringement. The fifth and last claim of the reissued Barker patent is identical with the claim of the original patent, and is therefore free from the objection to which the first three are open. But we think it also is not infringed by the device used by the defendants. The soldering-iron described in both the original and reissued Barker patent is a disk of suitable size to cover the lid of the can to be soldered, with the recess, B, in the under side, to give room for the convex lid of the can and to confine the soldering process to the outer edge of the lid or cover. This is entirely unlike the soldering-iron described in the Tillery & Ewalt patent, the tool used by the defendants. The latter is not a disk, but closely resembles the common soldering-iron, which is an old and familiar tool, and differs from it only in not having a pointed end, but one made so as to form a short arc of a small circle. The device covered by the Tillery & Ewalt patent was contrived for two purposes, neither of which the Barker contrivance is capable of accomplishing, namely, the adjustment of the soldering-iron radially from a hinge-joint, in order to adapt the same tool to be used with caps or lids of different sizes, and, second, the giving of the soldering-iron such a shape as that it would not hide the process of soldering, but made it possible to see at a glance, without removing the tool, any part of the cap which had been left unsoldered. The contention of the appellants that the soldering-iron of the Tillery & Ewalt patent is merely the disk of the Barker patent with a large part of its circumference removed, defeats itself, for when a large part of the disk is removed it ceases to be a disk, and becomes the mere soldering-iron of the Tillery & Ewalt device; whereas, as we have seen, a disk is an essential element in the invention covered by the Barker patent. We think that by no stretch of construction can the device used by defendants be included in the fourth and fifth claims of the Barker reissued patent, and that the defendants do not infringe those claims.

It remains to consider whether the appellants were entitled to relief against the defendants for the alleged infringment of the Bostwick patent. The original Bostwick patent was for 'a new and useful soldering-iron, for soldering metallic caps or other projecting pieces on metallic vessels.' It related, so the specification states, 'to the construction and use of a hollow soldering-iron, for soldering metallic caps or other projecting pieces upon metallic oil cans, or other vessels; said iron, when made with an inclosing edge of the dimensions and form of the rim or edge of the cap or piece to be soldered, so as to conform thereto when placed thereon, and so extended and formed interiorly as to receive and embrace loosely a guiding-rod to be placed upon the cap to be soldered, to hold the latter down firmly until it has been secured by the solder, and at the same time guide the iron to its proper place upon or against the rim or edge of the cap.' The specification was illustrated by drawings, as follows:

The manner in which the device was to be used was thus stated: 'After the iron has been properly heated it is slipped over this rod, and the rod being then placed upon the cap, is held thereon firmly, while the lower rim of the heated iron, duly supplied with solder, bearing upon the joint of the cap with the vessel, will instantly solder and secure the same about its entire circumference. By lifting the rod, its shoulder, engaging with the offset within the iron, will take up the latter with it in readiness to be placed upon another cap, and thus a number of caps may quickly and thoroughly be soldered at one heat of the iron.' The specification then proceeds: 'I contemplate making the soldering-iron, A, and its guiding-rod, C, of any form in transverse section which may be required to cause it to fit upon any form of cap or other projection, whether round, square, oval, or of any other curved or polygonal shape. Its lower rim or edge need not be made continuous, but may be broken or slotted.'

The claim was as follows: 'The hollow soldering-iron, A, having a handle, B, and beveled rim, a a, in combination with the rod, C, substantially as herein described and set forth.'

On September 3, 1878, Bostwick, with the assent of E. M. Lang & Co., the assignees, made application to the patent-office for a reissue of his patent. His application was granted, and his patent reissued, with a largely-expanded specification, and with two claims instead of one, which were as follows: '(1) A tool for soldering the caps on cans, consisting of a soldering-iron revolving about a central pivotal rod, which is made to rest upon and steady the cap during the operation of soldering. (2) The combination of a hollow iron for soldering caps on cans with a separate and inclosed weight for steadying the cap on the can during the operation of the soldering.'

Comparing the first claim of the reissue with the claim of the original patent, it appears that the former has been greatly broadened. The claim of the original patent was for a combination. One element of the combination was a hollow soldering-iron, A, with the handle, B, and beveled rim, a a. This was described in the specification as a hollow cylinder of metal, made to fit over and inclose the metallic cap to be soldered, its inner diameter at its lower end being somewhat greater than that of the cap. This was nothing more than the annular soldering-iron, which it is conceded was old when the Bostwick patent was issued. The second element was the rod, C, whose lower end was described to be about equal in diameter to that of the cap to be soldered.

The first claim of the reissued patent is expanded to embrace as the first element of the combination any 'tool for soldering caps,' no matter what its shape or size. This tool is made to revolve about a central pivotal rod. The idea of revolving the soldering-tool about the pivotal rod is not suggested in the original patent, but is excluded by the statement in the specification that the inventor contemplated making the soldering-iron and the guilding-rod of any form in transverse section necessary to fit in any form of cap, whether round, square, oval, or of any other curved or polygonal shape.

The claim under consideration does not describe with any accuracy the device covered by the original patent, but is made broad enough to include any soldering-iron which is constructed to revolve about a central pivotal rod resting on the cap to be soldered. This claim, however, does accurately describe the Tillery & Ewalt device, and it is apparent, from the record, that it was drawn for the purpose of making the use of the latter an infringement on the reissued patent. It could not do this without expanding the claim of the original patent. In our judgment, therefore, the invention thus described and claimed is a different invention from that described and claimed in the original patent, and the claim is therefore void.

The second claim of the reissued patent, it is clear, is not infringed by the use of the Tillery & Ewalt device. The latter employs no hollow soldering-iron, nor does it have a separate and inclosed weight for steadying the cap in the can during the process of soldering-both of which are essential, and they are the only elements of the claim.

The appellants have endeavored to avoid the objection to the reissued Bostwick patent by filing a disclaimer in the patent-office. The disclaimer was filed September 24, 1883, more than two years and a half after the final decree in the circuit court, and while the case was pending on appeal in this court. If the appellants are, under these circumstances, entitled to have the disclaimer considered, it cannot aid their case.

In support of the application for reissue of his original patent, which was made by Bostwick with the assent and in behalf of the appellants, he took an oath, as follows: 'That he believes that, by reason of an insufficient or defective specification, his aforesaid letters patent are inoperative or invalid.'

By the disclaimer referred to the appellants declare that they thereby 'disclaim all words, phrases, and sentences introduced in the specification' of the reissued patent 'which may mean or may be construed to contain any other or different invention than that justly belonging to the inventor, and fairly included in the invention as originally described and claimed,' and that they 'desire that the reissued patent, when the disclaimed matter is canceled, should read as follows.' Then follows a specification and claim, which, with the exception of six consecutive words, not affecting its meaning, is identical with the specification and claim of the original patent. The purpose of the disclaimer, and its effect, if valid, was to abandon the reissued patent and resume the original. We are of the opinion that this could not be done by a disclaimer. The original patent had been declared, on the oath of the patentee, to be invalid and inoperative. It had been surrendered and canceled, and reissued letters patent granted in its place. It is not competent for the patentee or his assignees, by merely disclaiming all the changes made in the reissued patent, to revive and restore the original patent. This could be done only, if it could be done at all, by surrender of the reissued patent and the grant of another reissue.

It follows from these views that the decree of the circuit court dismissing the appellants' bill was right, and must be affirmed.


text: Talk:McMurray v. Mallory/Opinion of the Court


text:
Taylor v. Bowker

J. H. Drummond, for appellants.

Edwin B. Smith and ''Wm. T. Putnam'', for appellee.

HARLAN, J.

title: Taylor v. Bowker


text: Talk:Taylor v. Bowker

title: Talk:Taylor v. Bowker