text:
Mackay v. Easton

ERROR to the Circuit Court for the Eastern District of Missouri:

George Mackay brought ejectment against Alton Easton for the possession of one hundred and sixty acres of land in the city of St. Louis, State of Missouri. Both parties traced their title to the demanded premises through one J. Smith, who asserted a claim to two arpents of land in the village of Little Prairie, in the district, now county, of New Madrid, in that State, by virtue of his settlement thereon under permission from the Spanish authorities, previous to the year 1800, and his inhabitation and cultivation of the same prior to and on the 20th of December, 1803. His claim was recognized as valid, and on the 9th of July, 1811, was confirmed by the commissioners appointed under the act of Congress of March 2, 1805, to ascertain and adjust the titles and claims to land in the Territory of Orleans and the District of Louisiana, who decided that he was entitled, under the provisions of the act, to a patent for the two arpents. The commissioners' certificate of this confirmation is unmbered 1116.

In the years 1811 and 1812 a large part of the land in the county of New Madrid was injured by earthquakes; and on the 17th of February, 1815, Congress passed an act for the relief of parties who had suffered in this way. By this act any person owning land in the county which had been materially injured was authorized to locate a like quantity of land on any of the public lands of the Territory of Missouri, the sale of which was authorized by law. And whenever it appeared to the recorder of land titles for the Territory, by the oath or affirmation of a competent witness, or witnesses, that any person was entitled to a tract of land under the provisions of the act, it was his duty to issue to such person a certificate to that effect. Upon this certificate, on the application of the claimant, a location of the land was to be made by the principal deputy surveyor for the Territory, or under his direction, who was required to have the location surveyed, and a plat of the survey returned to the recorder, with a notice designating the tract and the name of the claimant.

The act also provided for the transmission by the recorder to the Commissioner of the General Land Office of a report of the claims allowed, and locations made, and for the delivery to the claimant of a certificate of his claim and location, which would entitle him, on being forwarded to the commissioner, to a patent of the United States. The act declared that in all cases when the location was made under its provisions the title of the claimant to the injured lands should revert to, and vest in, the United States.

The two arpents of land in New Madrid claimed by J. Smith and confirmed to him were injured by earthquakes, and upon proof of the fact the recorder of land titles at St. Louis, on the 16th of November, 1815, gave him a certificate to that effect, and that he or his legal representatives were entitled, under the act of Congress, to locate any quantity of land, not exceeding 160 acres, on any of the public lands of the Territory of Missouri, the sale of which was authorized by law. This certificate was numbered 159.

Afterwards, on the 22d of October, 1816, one James Smith (blacksmith), and Sarah, his wife, describing themselves as of the county of Cape Girardeau, executed a deed to Rufus Easton, in terms conveying the two arpents, aptly describing them, and stating that they had been confirmed to him by the commisioners for the adjustment of land titles in the Territory, by the name of J. Smith, and were known on their books as claim and certificate number 1116; and that the land had been materially injured by earthquakes. The deed also conveyed to the said Rufus Easton the right to locate other lands in lieu of those injured, under the act of Congress, and the lands which might be thus located. This deed was acknowledged before a judge of the Circuit Court of the Territory on the day of its date, and was on the following month recorded in New Madrid County. It was produced and given in evidence subject to the objection hereinafter mentioned.

Under the certificate thus issued a location was made on the application of Rufus Easton, and in March, 1818, the tract located was surveyed by the deputy surveyor-general of the Territory, and on the 23d of February, 1823, the survey was returned to the recorder of land titles. This survey was numbered 2491.

Rufus Easton conveyed his interest to William Russell prior to 1827, and on the 27th of May of that year a patent of the United States was issued, granting the tract thus located and surveyed to J. Smith, or his legal representatives. This patent was transmitted to Russell, and he afterwards conveyed his interest in the land to the defendant. The patent embraced the premises in controversy, and it was admitted that the defendant was possessed of whatever title passed by the conveyance of James Smith to Rufus Easton in 1816, and that he had been in the adverse possession of the premises for more than ten years prior to the commencement of the present action.

The statute of limitations in Missouri, it is proper here to say, enacted that 'no action for the recovery of lands shall be maintained unless the plaintiff, or person under whom he claims, was seized or possessed of the premises within ten years before the commencement of such action.'

On the 30th of June, 1864, Congress passed an act, by which it was enacted that all the right, title, and interest of the United States

'In and to all the lands within the respective boundaries of the following described locations in township forty-five north of the base line, in range seven east, of the principal meridian line of the State of Missouri, made by virtue of certificates issued under the Act of Congress, approved February the 17th, 1815, entitled 'An Act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,' shall be, and the same are hereby granted, relinquished, and conveyed by the United States in fee simple and in full property, to the following mentioned persons respectively, or their respective legal representatives, in whose names said locations were severally made, to wit: Location under certificate number 159, being survey 2491, in the name of J. Smith, or his legal representatives. . ..

'Provided, however, that nothing contained in the foregoing provisions of this act shall, directly or indirectly, comprehend, include, extend to, grant, relinquish, or convey the whole or any part of any lot, tract, piece, or parcel of land in said township, which has heretofore been confirmed and surveyed by the United States, to any person or persons, or to the legal representatives of any person or persons. And provided further, that nothing in this act shall in any manner abridge, divest, impair, injure, or prejudice any adverse right, title, or interest of any person or persons in or to any portion or part of the aforesaid lots, tracts, pieces, or parcels of land which are granted, relinquished, or conveyed by this act.'

The plaintiff, relying upon this act of 1864, produced an instrument purporting to be a contract between one J. Smith and one A. P. Gillespie, dated on the 14th of April, 1816, by which the said Smith agreed to sell and convey to Gillespie, for the consideration of $100 already paid, and $50 to be thereafter paid, all his lots in the village of Little Prairie; and a deed from him to Gillespie, dated on the 5th of March, 1819, in terms conveying the two arpents of land in the village, and any certificate of location on land in the Territory, the sale of which was authorized by law. These instruments purported to be signed by the mark of J. Smith, and in the deed he described himself as of the county of New Madrid, lately of the village of Little Prairie. Fifty-two years afterwards these instruments were placed on record in the recorder's office of the county. The plaintiff contended that the grantor in this deed was the veritable J. Smith, who was the owner, in 1811, of the two arpents in the village of Little Prairie, and when the defendant produced the deed to Easton from James Smith abovementioned, he objected to its admission in evidence on the ground that it could not be presumed that a deed from James Smith, blacksmith, of Cape Girardeau, was a deed from J. Smith, of New Madrid; and now insisted that the court erred in admitting it. It was admitted that the plaintiff was possessed of whatever title passed by the deed to Gillespie.

The defendant also introduced in evidence the patent of the United States, issued as abovementioned on the 27th of May, 1827, and to its introduction the plaintiff objected, 1st, because the said patent was void in consequence of having been located upon land the sale of which was not authorized by law; 2d, because said patent had been judicially decided by the Supreme Court of the United States to be null and void, in the case of Easton v. Salisbury, Stoddard v. Chambers, and Mills v. Stoddard; 3d, because it was located upon land reserved from sale, and was not located in accordance with sectional and quarter-sectional lines, and was upon land not surveyed, and was not located in season to be validated by the act of Congress approved April 26th, 1822.

The act here referred to was thus:

'An Act to perfect certain Locations and Sales of Public Lands in Missouri.

'Be it enacted, &c., That the locations heretofore made of warrants issued under the act of the 15th of February, 1815, entitled 'An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,' if made in pursuance of the provisions of that act, in other respects, shall be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys; and the sales of fractions of the public lands heretofore created by such locations shall be as valid and binding on the United States as if such fractions had been made by rivers or other natural obstructions.

'SECTION 2. That hereafter the holders and locators of such warrants shall be bound, in locating them, to conform to the sectional or quarter-sectional lines of the public surveys, as nearly as the respective quantities of the warrants will admit; and all such warrants shall be located within one year after the passage of this act; in default whereof the same shall be null and void.'

[The more specific character of some of these three objections appears in the argument, as below given, for the plaintiff in error.]

The court overruled the objections, and permitted the patent to be read in evidence, and overruled the objection taken to the introduction of the deed from James Smith to Easton; and to the ruling of the court in each particular the plaintiff's counsel excepted at the time.

The court then instructed the jury of its own accord that upon the evidence offered, and under the proof by plaintiff that the survey on which the patent issued was filed with the recorder within one year from the date of the act of 26th April, 1822, the patent issued to J Smith, in 1827, offered in evidence was a good and valid patent, and passed the title of the United States; and that if the jury believed from the evidence that the defendant had been in open, notorious, and continuous possession of the premises described in the declaration for ten years next before the commencement of this suit, claiming title under said patent, they should find a verdict for the defendant. To these instructions the plaintiff, by his counsel, excepted. The jury found for the defendant, and judgment being entered accordingly, the plaintiff brought the case here on error.

Messrs. B. A. Hill and J. F. Darby, for the plaintiff in error:

I. There is no evidence whatever to prove, or tending to prove, that 'James Smith, blacksmith,' of Cape Girardeau, ever lived in the village of Little Prairie, or even in the county of New Madrid, or that he ever owned any land there. The necessary conclusion is that he fraudulently personated the real J. Smith.

The next question is, as to the validity of the patent of 1827. If that patent is valid, the defendant has acquired the title by the statute of limitations, and if it be void, the title to the land sued for remained in the United States until the 30th June, 1864, and plaintiff was entitled to recover.

II. It is matter of professional notoriety that on the 17th February, 1815, and on the 26th April, 1822, when the New Madrid acts were passed, the sale of the public lands was authorized by law to be made, only in accordance with the sectional an quarter-sectional lines of the United States surveys. The acts of 17th February, 1815, and of 26th April, 1822, were passed to carry out the donations contemplated, in accordance with the existing laws for the sale of the public lands. Inextricable confusion would have resulted, if these provisions of the land laws had not been complied with by New Madrid claimants, and it is on this account that the act of 17th February, 1815, therefore, requires that New Madrid locations shall be made only 'on lands the sale of which is authorized by law.'

Now, the J. Smith survey of March, 1818, was not made on any quarter-sectional lines. It was made before the public surveys of township 45, range 7 east, were executed, and before that township was sectionized. The survey was, therefore, a nullity.

If, indeed, a New Madrid location had been made upon this illegal survey of 1818, by filing it with the recorder of land titles before the passage of the act of 26th April, 1822, the first section of that act would have cured the illegality of the location, and the fractions created by it, in the quarter sections it cut into, could have been sold. But no location, as we assume the meaning of that word to be, of the J. Smith survey of 1818 was made until 1823, after the act of 1822 took effect; and the second section of the act of 1822 expressly barred the location of that survey after the passage of the act, that is to say, after 26th April, 1822.

The argument of the other side will be that the New Madrid location of J. Smith was made by the survey of March, 1818, and therefore, that the first section of the act of 1822 cured the fatal defect, that it did not conform to sectional lines, and was not made 'on lands the sale of which was authorized by law.' But the uniform decisions of this court from the case of Barry v. Gamble (A.D. 1843), down to Rector v. Ashley (A.D. 1867), have established the law to be that a New Madrid location is not made by the survey, but is made only by filing the survey in the office of the recorder of land titles. It is, therefore, to be taken that the New Madrid location of J. Smith was made on the 26th February, 1823, when the survey of 1818 was filed in the office of the recorder of land titles, and was not made before. It is, therefore, void, because it was not made on sectional or quarter-sectional lines.

III. In Stoddard v. Chambers, reported by Mr. Howard, this court decided, and on the ground that the land had been in fact and by law expressly reserved from sale, that a patent issued to Eustache Peltier, under a New Madrid location, which, as Mr. Howard's report of the case shows, covered the greater part of the identical piece of land covered by the survey in this suit, and on the very same quarter-section, was void.

The case of Mills v. Stoddard, in 8th Howard, decides equally, that any location of land while it was reserved from sale is void. But this identical patent, now set up in this suit, has been adjudged void by this court in Easton v. Salisbury, also reported by Mr. Howard. The report states the case was an ejectment brought by Alton Easton against Salisbury to recover certain lots in St. Louis County (the lots now in controversy), that the plaintiff claimed under a New Madrid patent, issued in 1827 to J. Smith or his legal representatives, and the defendant under a Spanish concession for three hundred and fifty arpents (including the premises then in controversy), which was confirmed to one Mordecai Bell in 1836.

The Supreme Court of Missouri decided against Easton, and he brought the case here. This court, referring to well-known facts in the history of the public lands, said:

'It will be observed, that this controversy arises between a New Madrid title and a Spanish concession. A holder of a New Madrid certificate had a right to locate it on any of the public lands which had been authorized to be sold. This claim came into the hands of Easton, the plaintiff in error. It was surveyed in March, 1818, and on the 28th May, 1827, the United States issued a patent to J. Smith or his legal representatives.

'From 1808 to the 26th of May, 1829, reservations were made from time to time to satisfy certain claims, but from that time they ceased, until renewed by the act of the 9th of July, 1832.

'During this period, it is understood by the plaintiff in error, the land in question was subject to be disposed of to any person, or in any manner, and was then open to entry or location. And it is urged that the plaintiff had the right during this time to perfect his title.

'The President of the United States has no right to issue patents for land, the sale of which is not authorized by law.

'Nothing was done to give Easton's title validity, from the cessation of the reservation in 1829, until its revival in 1832. His entry was made in 1818, and on the 28th of May, 1827, his patent was issued. The land located and patented having been reserved, was not liable to be appropriated by his patent.

'But it seems by the act of the 26th of April, 1822, it was provided that all warrants under the New Madrid act of the 17th of February, 1815, which shall not be located within one year, shall be held null and void. This law is decisive upon this point; all New Madrid warrants, not located within one year from the 26th of April, 1822, are null and void. Smith's or Easton's certificate for the New Madrid claim was void, and also his patent when issued, under the paramount claim of Bell, whose title was confirmed by the act of the 4th of July, 1836.

'There was no period from the entry and patent of the New Madrid claim in which the claim was valid. The location was not only voidable, but was absolutely void, as it was made on land subject to a prior right. And under the act of April 26th, 1822, all New Madrid warrants, not located within a year from that date, were declared to be void. Whether we look at the confirmatory act of 1836, which vested the title in the confirmee, or to the New Madrid title asserted against it, it is clear that the New Madrid title is without validity, and that the fee is vested in the grantee of Bell.'

The Easton, party in that suit, was the Easton, party in this; and the report as given in Howard shows that the land was the same land.

IV. The true owner of the New Madrid title, finding that the patent to J. Smith was void under these decisions, did not attempt to enter upon the land that belonged to the United States, nor was he bound to regard the trespass of Easton thereon as a matter of any moment.

When Congress passed the act of 30th June, 1864, the title of plaintiff's grantors vested for the first time in him, under that act of Congress, and his right of action then accrued. He had no right of action before.

The defendant's possession of ten or fifty years signifies nothing. He was not in by color of title, and could not be, for the land belonged to the United States. The true owner could not be aware of any title vesting until the act of 1864 was passed.

No time runs against the government. The case of Gibson v. Chouteau settles all questions on the statute of limitations.

Mr. C. Gibson (with whom were Messrs. E. Casselberry and W. B. Thompson), contra.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows:

title: Mackay v. Easton


text: Talk:Mackay v. Easton

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

title: Talk:Mackay v. Easton


text:
Mackay v. Easton/Opinion of the Court

We are of opinion that the court ruled correctly in admitting the deed of James Smith to Easton. The deed describes the property as that claimed by J. Smith; it declares that the property was confirmed to the grantor by that name, and it gives the number of the certificate of confirmation. It was acknowledged before a judge of the Circuit Court and immediately placed on record, where it was open to inspection by every one. Easton acted openly upon the supposition that he had acquired the title of the two arpents, and the right of location on other lands, in consequence of their being materially injured by earthquakes. Upon his application such location was made in the immediate vicinity of St. Louis. He had a survey made of the land located by the official surveyor of the government. He had the survey transmitted to the recorder of land titles; and his successor in interest prosecuted the matter until he obtained a patent of the United States. In the meantime a severe and protracted litigation grew up between claimants under the deed and claimants under Spanish concessions, and in none of the controversies was any suggestion made that the grantor to Easton was not the veritable J. Smith who owned the two arpents of land in Little Prairie. It would have been manifest error if, in the face of these facts, after the lapse of half a century, when the property acquired under the deed has become of immense value, and the city of St. Louis has extended over it, the court had held that the deed to Easton is not to be presumed to be the deed of J. Smith, of Little Prairie, because the grantor describes himself as James Smith, of the county of Cape Girardeau. The real Smith had undoubtedly removed from the village of Little Prairie before the date of this deed. That village had been greatly injured, if not destroyed, by the earthquakes, and the inhabitants had been authorized by Congress, in consequence of the injuries thus received, to select lands elsewhere. Cape Girardeau, until 1813, was a part of the county of New Madrid, and the simple fact that the grantor describes himself as of that place after Little Prairie had been abandoned, is of little consequence, as his identity with the original owner of the land is sufficiently stated in the body of the instrument.

In the deed to Gillespie the grantor describes himself as lately of the village of Little Prairie, and this description is open to the same objection as the description of the residence of James Smith in his deed. The reasonable and natural presumption arising from all the circumstances is, that Gillespie, finding, after receiving his deed, that Smith had already conveyed the property to Easton, and the right of location on other lands in consequence of its injury, did not assert any claim to the land, and that thus the deed had been suffered to remain without any attempt to enforce it until the increased value of the land located had tempted speculators to test its efficacy by litigation. The execution of the contract and the second deed of Smith, with his mark, is a circumstance, but in the light of the facts following their execution, a slight one against the theory of identity of the grantors in the two deeds. The use of a mark for his name may have resulted from temporary causes, or difficulty in writing, and not inability to write. But whatever the cause, the use of the mark in the one case, and of the name in the other, before a public officer, was sanctioned by the acknowledgment of the grantor, whether made by his own hand or by another in his presence and by his direction.

The objections taken to the admission of the patent in evidence were: 1st, that the patent was void, because located upon land the sale of which was not authorized by law; 2d, that the patent had been decided by the Supreme Court of the United States to be null and void in Easton v. Salisbury, reported in the 21st of Howard; in Stoddard v. Chambers, reported in the 2d of Howard, and in Mills v. Stoddard, reported in the 8th of Howard; and, 3d, that the patent was located upon land reserved from sale; was not located in accordance with sectional and quarter-sectional lines, but upon land not surveyed; and was not located in season to be validated by the act of Congress of April 26th, 1822.

The first objection may be disregarded, for there was no evidence of the fact, upon the supposed existence of which the objection is founded.

The cases cited under the second objection are not evidence in this case; the records of them are not before us. The reports of their decision in Howard may be referred to as expositions of law upon the facts there disclosed, but they are not evidence of those facts in other cases. In Easton v. Salisbury the controversy was between a Spanish concession to Mordecai Bell, and the title of Easton under the location upon the New Madrid certificate issued to Smith. The claim under the Spanish concession was confirmed by act of Congress to the legal representatives of Bell. The land claimed under this concession was reserved from sale, and could not, therefore, be covered by the New Madrid certificate. So far as the location interfered with the concession it was void, and to that extent the patent was void also, but no further. And that is all there is in the decision in that case. The general language of the opinion must be construed and limited by the facts of the case.

It is true the court said that by the act of April, 1822, it was provided that all warrants under the New Madrid act which were not located within one year were void; and it would seem that the court supposed that the warrant issued to Smith had not been located within that period. The court was speaking at the time of a completed and not an initiatory location, one which would appropriate the land; and evidently considered that there could be no such appropriation until the survey was returned to the recorder of land titles, as had been held in several cases. Of such return after the passage of the act of 1822, there was no evidence in the record in that case. In this case it is admitted that the survey was thus returned within the year; and, consequently, the location of the tract was completed.

In Stoddard v. Chambers, and Mills v. Stoddard, the controversy was also between a Spanish concession and a New Madrid certificate. The patent issued in those cases upon the location of the New Madrid certificate, was held void because it covered land reserved from sale. There is nothing in that ruling which bears upon the question presented in the case at bar.

In several cases which were before this court prior to that of Easton v. Salisbury, it was held, as already stated, that there could be no effectual appropriation of the land located under a New Madrid certificate until the survey made by the officer of the government was returned to the recorder of land titles. The act of Congress, as will be seen by a reference to a prior page, declared that when a location was made under its provisions, the title of the person to the land injured should vest in the United States. It contemplated that there should be a concurrent investiture of title; that the title of the owners of the land injured in New Madrid County should pass to the United States, and that at the same time the title to the land located in lieu thereof should pass to the claimant, or rather the right to the title, for the strict legal title did not pass until the patent issued; and that this exchange of titles should take place when the claimant obtained his patent certificate, or the right to such certificate, and that he could not acquire until the plat of the survey was returned to the recorder of land titles. Until the plat was placed in the public depository in the Territory, of evidences of title issuing from the United States, there was no official recognition of the proceedings taken by the claimant which bound the government.

It often happened that the location made at the request of claimants by deputy surveyors were upon lands which had not been surveyed by the government, or if surveyed the locations did not conform to the sectional and quarter-sectional lines of the surveys. To remedy defects of this character Congress passed the act of April 26th, 1822. That act refers in its first section to the actual locations made by the deputy surveyor at the request of the claimant, and not to the completed appropriation of the land by the return of the plat of the survey to the recorder of land titles.

The actual location of the New Madrid certificate issued to Smith, was made and approved in 1818; and any objection to it for want of conformity to the lines of the public surveys, was removed by the first section of the act of 1822. This actual location became a perfected location so as to appropriate the land on the return of the survey to the recorder in 1823, except as against the Spanish concession, which was confirmed to the representatives of Bell. Besides this, a defect in a survey is cured by the issue of a patent thereon.

It follows from the views expressed that the Circuit Court did not err in its rulings, and its judgment must be

AFFIRMED.

title: Mackay v. Easton/Opinion of the Court


text: Talk:Mackay v. Easton/Opinion of the Court


text:
Aicardi v. The State

ERROR to the Supreme Court of Alabama.

The Revised Code of Alabama, section 3621, in force before and in the year 1868, enacts that,

'Any person who keeps or exhibits, or is interested or concerned in keeping or exhibiting, any table for gaming, of whatsoever name, kind, or description, not regularly licensed under the laws of the State, must, on conviction, be fined not less than $100,' &c.

This section of the code being in force, the legislature, on the 31st of December, 1868, passed an act which enacted,

'SECTION 1. That Clifton Moses & Co. shall have the full right and authority to form themselves into a partnership association, for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription which shall entitle the holder thereof to such prizes as may be awarded to them, which distribution of award shall be fairly made in public, by casting of lots, or by lot, chance, or OTHERWISE, in such manner as to them may seem best to promote the interest of the school fund of Mobile County, which said distribution of award and prizes shall be made at their office in the city of Mobile,' &c.

'SECTION 2. That before commencing business under the provisions of this act, said partners shall pay to the board of school commissioners of Mobile County, for the use of the public schools of said county, the sum of $1000; and annually thereafter a like amount, for the term of ten years, or so long as said partnership shall choose to do business under the provisions of this act; it being understood and agreed, that said payment of $1000 per annum is the consideration upon which this privilege is granted.

'SECTION 4. That this act shall remain in full force and effect for ten years, upon the consideration herein contained, during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.'

Under this act J. C. Moses & Co. formed a partnership, which gave to one Aicardi its authority to keep or exhibit what was clearly a roulette-table, or 'a table for gaming.'

On the 8th of March, 1871, the legislature repealed the above-quoted act.

Moses & Co., however, still paid the $1000 a year, and kept the table open to the public.

Aicardi being now indicted under the section of the code already quoted, set up an authority under the license from Moses & Co., and that the act of the 8th of March, 1871, which he alleged gave Moses & Co. the right to keep such a table as he did, was void, as violating the obligation of contracts. The court in which he was indicted held that it was not thus void, and Aicardi was there convicted.

The Supreme Court of the State affirmed that judgment on the authority of Mayor, Aldermen, and Council of Mobile v. Clifton Moses et al., a case decided at the same term.

In that case the said court held the act of 31st of December, 1868, unconstitutional and void under the constitution of the State; moreover that it did not authorize a gaming-table. Aicardi now brought the case here on error.

Messrs. J. A. Elmore and S. F. Rice, for the plaintiff in error, contended that the legislature had full power to take away either by general law or otherwise all indictable quality from gambling; that they had here done so, so far as Moses & Co. were concerned; and that as to them the section 3621 of the code had been repealed for a valuable consideration paid to the State. That if the act of December, 1868, was valid, it was impossible to argue that its broad language did not confer upon Moses & Co. the franchise or privilege to do everything which Aicardi did, and to select any mode they deemed best for the distribution of awards and prizes; that the act of 1871 plainly impaired the obligation of the contract made with Moses & Co., and liberally paid for by them.

Mr. P. Phillips, contra, argued that no question was before this court as to whether the repealing act of 1871 violated the obligation of contracts; that the decision by the Supreme Court of Alabama, on its own constitution and statutes, had obviated the necessity of question here on that point, and was beyond the revisory power of this court.

Reply: This court will decide for itself whether there was a contract to be impaired, what were its terms, and what its obligations, even though the contract have been a legislative contract, or one which arises from the acceptance of the provisions of an act of a State legislature. State courts are not permitted to evade or elude the jurisdiction of this court, by deciding that to be no contract which this court knows to be a contract, or by any other mistake or device.

Mr. Justice SWAYNE recapitulated the facts of the case, and delivered the opinion of the court.

title: Aicardi v. The State


text: Talk:Aicardi v. The State

title: Talk:Aicardi v. The State


text:
Aicardi v. The State/Opinion of the Court

The record discloses, so far as is necessary to state it, the following case:

The plaintiff in error was indicted for keeping a gaming-table.

The legislature of Alabama passed an act, approved December 31st, 1868, entitled 'An act to establish the Mobile Charitable Association, for the benefit of the common-school fund of Mobile County, without distinction of color.' It authorized certain persons therein named to form themselves into a partnership association, under the name and style of J. C. Moses & Co., and to establish and carry on the business specified. Before commencing business they were required to pay to the board of school commissioners of Mobile County, for the use of the public schools of that county, the sum of $1000, 'and annually thereafter a like amount for the term of ten years, or so long as said partnership shall choose to do business under the provisions of this act; it being understood and agreed that said payment of $1000 per annum by said partnership to said common-school fund, is the consideration upon which this privilege is granted, and whenever said company shall fail to pay said sum according to the provisions of this act, then and in that case the right to do business shall cease.' The last section declared 'that this act shall remain in full force and effect for ten years upon the consideration herein contained, during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.'

On the 8th of March, 1871, the legislature repealed the act.

Moses & Co. paid the amount required as a condition precedent, and continued to pay from time to time thereafter as if the repealing act had not been passed.

It was admitted that the defendant in keeping the gaming-table acted under the authority of Moses & Co., and as their agent. The offence was charged to have been committed on the 2d of December, 1871.

The bill of exceptions sets forth fully the evidence given at the trial. The table was 'a table similar in many respects to a table commonly known and called a roulette-table, or table and wheel similar to a roulette-table, at which money was bet by persons operating at said table; that the money was bet in this manner.' The manner of using the wheel and table and of conducting the gaming process are then fully described.

The court instructed the jury in substance that if the defendant had kept a gaming-table they should find him guilty. The defendant excepted. He thereupon asked certain instructions, which were refused, and he excepted to the refusal.

The Supreme Court of the State affirmed the judgment, and this writ of error has been prosecuted to bring the judgment of affirmance before this court for review. The plaintiff in error insists that the act of December 31st, 1868, was, when the repealing act was passed, as between Moses & Co. and the State, a contract, and that the repealing act was a violation of that contract within the meaning of the Constitution of the United States, and therefore void.

Our attention has been called to the opinions of the judges of the Supreme Court of Alabama in the case of The Mayor, Aldermen, and Common Council of Mobile v. Clifton Moses et al. That case involved the same statutes and presented the same questions as the case before us. In that case a majority of the judges held that the act was unwarranted by the constitution of the State, and therefove void. But a majority also held that keeping a gaming-table was not within the purview of the act, and that the act did not affect the pre-existing provision of the code upon that subject. One of the judges, holding this latter view, said: 'The act declares that the association was allowed to be formed for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription, which shall entitle the holders thereof to such prizes as may be awarded to them. This is the means provided by the law to carry on 'business' under the franchise. This may be done, whatever it may mean, without the violation of the statutes against gambling; that is, without keeping a gaming-table in the manner forbidden by the revised code. The scheme of operations set out in the bill is clearly that of keeping or exhibiting 'a table for gaming.' The legislature did not intend to repeal this section of the code by the law allowing the formation of this association, and turn loose upon society the evils thus restrained.'

This construction of the statute is authoritative in this court. We concur in the views expressed by the learned judge from whose opinion we have quoted. Such an act should be construed strictly. Every reasonable doubt should be so resolved as to limit the powers and rights claimed under its authority. Implications and intendments should have no place except as they are inevitable from the language or the context. But aside from these views it is not to be supposed that it was the purpose of the act to give to the association the power to carry on, throughout the State, for the period of ten years, gaming in the form disclosed in this record, in defiance of the legislative authority, and without any check or limitation save such as they might choose to impose upon themselves.

This conclusion renders it unnecessary to consider the constitutional validity of the original act or the effect of the repealing act. We have not found it necessary to consider those subjects.

JUDGMENT AFFIRMED.


text: Talk:Aicardi v. The State/Opinion of the Court


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Great Western Insurance Company v. Fogarty

ERROR to the Circuit Court for the Southern District of New York.

Fogarty sued the Great Western Insurance Company on a policy of marine insurance and recovered a judgment for $2611.95 and costs. The policy was an open one, and the indorsement procured by the plaintiff on it was of insurance for $2250, on machinery on board the bark Ella Adele, at and from New York to Havana, free from particular average. The memorandum clause of the policy provided that machines and machinery of every description were warranted by the assured free from average unless general. The machinery insured consisted of the various parts necessary for a complete sugar-packing machine, including, as part of it, three sets of truck-irons, and also other extra truck-irons. It was described in the bill of lading and invoice as eight pieces and eight boxes, composing one sugar-packer and three trucks.

The vessel on which these articles were being transported from New York to Havana, just before reaching the latter city, was driven on rocks in a violent gale, was filled with water, and finally became a total wreck, and was abandoned to the underwriters. Their agent at Havana took possession, and was engaged about a month in raising the cargo. A large number of the pieces composing the plaintiff's machinery was recovered and tendered to him at Havana, which he refused to receive, on the ground that the insurance company was liable to him as for a total loss. They denied that under the circumstances of the case there was a total loss within the meaning of the policy; and the soundness of the instruction to the jury on that point, given and refused by the Circuit Court on the trial, was the only question now before this court.

There was very little conflict of testimony as to what was recovered and what was its condition when tendered to plaintiff. It was all of iron. About half of it in weight was saved, and the remainder left at the bottom of the sea. That which was saved was entirely useless as machinery, and was of no value except as old iron, for which purpose it would sell for about $50. The machinery in working order was worth $2250. That which was saved was much broken and rusted, so that it would cost more to repair it, polish it, and put it in order for use than to buy a new machine.

Upon the testimony offered by the plaintiff the counsel for the defendant moved the court to instruct the jury that the action could not be sustained, because it showed that there was not a total loss. The court declined to do this, and the request was renewed at the conclusion of the defendant's evidence, and again declined. Several prayers for instruction were then presented by the defendant, based upon the leading proposition, that if any of the pieces of the machinery insured was recovered and tendered in specie to the assured, there was no total loss. These were refused and exceptions taken to all these refusals, on which error is assigned here. An exception was also taken as to the charge of the court laying down the law by which the jury were to decide the question of total loss submitted to them. That charge was in the following words:

'The meaning of the term 'free from particular average,' used in the policy, was that the defendants should be liable only for a total loss of the subject insured; that the subject insured was not machines but machinery, by which is generally understood the several parts or portions of machines, adapted and fitted to be put together so as to constitute a machine (in this case a sugar-packing machine), and, applying the rule of law as to what constitutes a total loss to this particular subject insured, the jury will find whether any piece or portion of the machinery insured arrived at its destination in a perfect condition, so that it could have been used with its corresponding or connecting pieces had they also arrived in good condition; in that case the plaintiffs could not recover, as the loss would not be total; but that if every piece of the machinery was so damaged by the perils insured against as to be entirely unfit for use on being supplied with its corresponding or connecting pieces, then there was a total loss of the subject insured as machinery, although the material itself might still exist; and if they so found, they would find a verdict for the plaintiff for the sum named in the policy with interest from the tenth day of September, 1868.'

Verdict and judgment having gone for the plaintiff, the insurance company brought the case here.

Mr. W. M. Evarts, for the plaintiff in error; Mr. S. P. Nash, contra.

Mr. Justice MILLER delivered the opinion of the court.


text: Talk:Great Western Insurance Company v. Fogarty


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Great Western Insurance Company v. Fogarty/Opinion of the Court

The question presented in this case for consideration has been often in the courts, and the discriminations between what is total loss and what is not are frequently very nice and delicate. The authorities are by no means uniform or consistent with each other, when, as in the present case, the line of distinction is very narrow. Several cases bearing upon the one before us have been decided in this court, and perhaps a short review of them may aid us here better than a more extended examination of the numerous other authorities on the subject.

In the case of Biays v. Chesapeake Insurance Co., the plaintiff was insured upon hides, the whole number of which was 14,565. Of these, 789 were totally lost by the sinking of a lighter, and 2491 of those sunk were fished up in a damaged condition and sold. The hides were memorandum articles, and this court held that inasmuch as less than 800 hides insured as part of a much larger number of the same kind was lost, it could not be a total loss, and overruled the argument that it was a total loss as to the 789 hides.

In the case of Marcardeir v. Chesapeake Insurance Co., it is said that 'it seems to be the settled doctrine that nothing short of a total extinction either physical or in value of memorandum articles at an intermediate port would entitle the insured to term the case a total loss, where the voyage is capable of being performed. And perhaps even as to an extinction in value, where the commodity specifically remains, it may yet be deemed not quite settled whether, under like circumstances, it would authorize an abandonment for a total loss.'

In the case of Morean v. The United States Insurance Co., more than half of a cargo of corn was thrown overboard and lost. The remainder was saved in a damaged condition and sold at about one-fourth the market value of sound corn. This was held not to be a total loss, because part of the corn was saved, and though damaged was of some value. It was, therefore, only a partial loss.

The next case is that of Hugg v. The Augusta Insurance Co. The question there arose on an insurance of jerked beef of four hundred tons, part of which was thrown into the sea and part of the remainder so seriously damaged that the authorities of the city of Nassau refused to allow more than 150 of it to be landed. This was wet and heated, and not in a condition for reshipment. In answer to a question on this subject, certified to this court by the judges of the Circuit Court, it was replied, 'that if the jury found that the jerked beef was a perishable article within the meaning of the policy, the defendant is not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo so that it had lost its original character at Nassau, or that a total destruction would have been inevitable from the damage received if it had been reshipped before it could have arrived at Matanzas, the port of destination.' And though there are some very strong expressions of the judge who delivered the opinion as to the necessity of the total destruction of the thing insured to establish a total loss in memorandum articles, no doubt the language here certified is the true expression of the court's opinion. And it will be observed that in this case, as in the case of Marcardeir v. Chesapeake Insurance Co., the destruction spoken of is destruction as to species, and not mere physical extinction. Indeed, philosophically speaking, there can be no such thing as absolute extinction. That of which the thing insured was composed must remain in its parts, though destroyed as to its specific identity. In the case of the jerked beef, for instance, it might remain as a viscid mass of putrid flesh, but it would no longer be either beef or jerked beef. And when the case went back for trial in the Circuit, the charge of Taney, C. J., to the jury places this point in a very clear light. He says there was not a total loss at Nassau, because a part of the jerked beef remained in specie, and had not been destroyed by the disaster. And if there was reasonable ground for believing that a portion of this beef could, by repairing the vessel, have been transported to Matanzas, although it might arrive there in a damaged condition, but yet retaining the character of jerked beef, there was no total loss. The jury found there was a total loss. The case of Judah v. Randal, where a carriage was insured and all was lost but the wheels, is another illustration of the principle. A part of the carriage, namely, the wheels, a very important part, was saved; but the court held that the thing insured, to wit, the carriage, was lost-that it was a total loss. Its specific character as a carriage was gone.

In the case of Wallerstein v. The Columbian Insurance Co., the whole doctrine is ably reviewed with a very full reference to previous decisions, and it is there shown that there is far from unanimity in the language in which the rule is expressed; and the extreme doctrine of an absolute extinction or destruction of the thing insured is not the true doctrine, or, at least, is not applicable in all cases as a criterion of total loss.

The Circuit Court was right in holding that what was insured was machinery-pieces or parts of a machine-pieces made and shaped to unite at points with other pieces, so as to make a sugar-packing machine. If parts of them were absolutely lost, and every piece recovered had lost its adaptability to be used as part of the machine; had lost it so entirely that it would cost as much to buy a new piece just like it, as to repair or adapt that one to the purpose, then there was a total loss of the machinery. If no piece recovered was of any use, or could be applied to any use connected with the machine of which it was a part, without more expense on it than its original cost, then there was no part of the machinery saved, however much of rusty iron may have been taken from the wreck. The court went quite as far in behalf of the defendant as the law justified, when it told the jury that the plaintiff could not recover if any piece or portion of the machinery insured arrived at its destination in a condition so perfect that it could have been used with its corresponding or connecting pieces, had they also arrived in good condition.

We are of opinion that the charge of the court put the case very fairly to the jury, as we understand the law, and the judgment is, therefore,

AFFIRMED.


text: Talk:Great Western Insurance Company v. Fogarty/Opinion of the Court


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Warren v. Van Brunt

ERROR to the Supreme Court of Minnesota.

This was a contest between two pre-emption claimants, Warren, on the one hand, and the representatives of Van Brunt, deceased, on the other, for the ownership of the southeast quarter of the northeast quarter, section 13, township 108 N., R. 27 W. (forty acres), in the State of Minnesota. These last had the legal title under a patent from the United States, issued upon the claim of Van Brunt. Warren, alleging that he had an elder and better right of pre-emption, sought by his action in the court below to charge the representatives of Van Brunt as his trustees, and to compel them to convey to him the title they acquired by the patent.

The case was decided below upon facts found by the court, and stated in the record. No exception was taken to the finding, and the question presented, therefore, for the determination of this court was, whether upon the facts as found there was error in the decree.

These facts were substantially as follows: Warren and Van Brunt being each, in May, 1853, and thereafter until the death of Van Brunt, legally competent to avail themselves of the pre-emption laws of the United States, in the said month jointly selected for occupancy about two hundred and eighty acres of unsurveyed public lands in Minnesota, to which the Indian title had been extinguished. They settled upon the forty acres in dispute, and after ploughing and planting two or three acres, proceeded with their joint means and labor to erect thereon a house for a residence, into which they moved with their families in June. They occupied this house together until the 18th of July, when, a difficulty having arisen between them, a contract of partition was entered into, by which, after establishing a dividing line, which ran diagonally across the premises in controversy and through the ploughed lands, it was agreed that Warren should have the sole and exclusive use of all the lands selected for occupancy situated on the east side of the line, and Van Brunt of all on the west. The house they had built was on the part set off to Warren, but by the agreement Van Brunt was to have the exclusive use of it until May 1st, 1854, when, on the payment to him of one-half its cost, he was to surrender the possession to Warren for his exclusive use thereafter. Upon the execution of this contract, Warren went with his family to the town of Mankato a town in the neighborhood of the two hundred and forty acres of land, but not on any part of it-leaving Van Brunt in the house. Soon after, and within a reasonable time, he began the erection of a new house on a part of the premises set off to him, adjoining the disputed property, into which he moved in the autumn of 1853 with his family.

Van Brunt continued to occupy the first house in accordance with the terms of the contract of partition until May 1st, 1854, when Warren, having paid him for one-half its cost, evicted him by legal proceedings. After his eviction, he went into an abandoned 'claim-shanty' on the part of the premises set off to him, and remained there from two to four weeks, during which time he erected a new house upon the disputed property, but on his side of the dividing line. As soon as this house was completed he moved into it with his family and resided there until his death, on the 5th of January, A. D. 1856. His family occupied the same house as their residence after his death, until their title was perfected under his claim. In 1853 and 1854 he ploughed and cultivated about twenty acres of the land occupied by him, seventeen of which were on the disputed forty. In 1854 and 1855, he ploughed a few acres more and cultivated all his improved lands. In 1855 he inclosed all his improvements with a fence, and dug some ditches. In addition to his house, he put up on the disputed property a large corn-crib, a cow-house, and other outbuildings.

After the eviction of Van Brunt from the first house, Warren moved into it and resided there until the autumn of 1854. He then went back to the house he built after the partition, and remained there until after Van Brunt's heirs perfected their title. He cultivated and improved his lands upon the east of and up to the agreed division line, by fencing, ploughing, and planting, and kept tenants in the first house all the time after he left it until the commencement of the action in the court below. Neither of the parties disputed the right of the other to occupy and cultivate up to the line of division until after the title of the Van Brunt heirs was perfected.

The township lines were surveyed through the public lands, which included the premises in dispute, in 1854, and the subdivision lines in 1855. When the township lines were run, Warren was residing with his family in the first house, and his improvements on the disputed forty, including the house, were then equal to, if not greater in value, than those of Van Brunt.

On the 19th July, 1855, Van Brunt filed in the land office his declaratory statement under the pre-emption laws, claiming the right to enter and purchase the north half of the southeast quarter and south half of the northeast quarter, section 13, T. 108 N., R. 27 W., containing one hundred and sixty acres. His claim included the forty acres in dispute. In his statement he gave the 4th of June, 1855, as the date of his settlement.

It appeared from the pleadings and the statements of the counsel for the plaintiff, in the argument, that in December, 1855, Warren filed his declaratory statement, also claiming the right under the pre-emption laws to enter and purchase the disputed premises, and the northwest quarter, southwest quarter, and south half of the northwest quarter, section 18, T. 108 N., R. 26 W., in all one hundred and sixty acres. He gave the date of his settlement as November 17th, 1853. On the 7th March, 1856, Warren served a notice upon the widow and administratrix of Van Brunt, that he should contest her claim to the pre-emption of the forty acres in controversy, and, in consequence of this notice, both claimants appeared before the register and receiver of the land office and produced and examined their witnesses. After a full hearing, these officers were unable to agree upon a decision, and the papers and proofs were thereupon sent to the Commissioner of the General Office, who, on the 4th of April, 1857, decided in favor of the Van Brunt claim. Warren appealed to the Secretary of the Interior, who, on the 31st of October, A. D. 1857, affirmed the decision of the commissioner. On the 15th of May, 1860, a patent was issued to the heirs of Van Brunt for the whole one hundred and sixty acres claimed by him. In January, 1857, Warren received a patent for the one hundred and twenty acres claimed by him in section 18, and in February, 1865, filed a bill in one of the State courts of Minnesota to recover from Van Brunt's heirs the disputed forty acres.

The bill prayed a decree that Van Brunt's representatives should convey to Warren the whole forty acres.

The answer-which mentioned as part of a history of things which it gave, that the parties had divided their claims by running a line, which line they supposed when they made it would correspond with the east line of the forty acres, as that line would be laid down by the government survey-resisted this claim of the plaintiff and asserted title in the whole forty acres in Van Brunt's representatives.

The replication, denying that the division-line as thus agreed on gave Van Brunt any title to the forty acres, thus continued:

'And the plaintiff prays in addition to the prayer of original complaint, that, in case the court should not find for the plaintiff that he is entitled to a decree for a release of the whole disputed forty acres, that then the court may ascertain how the said alleged division-line divides said forty acres, and that the defendants, on terms of payment of the original cost of the same, be decreed to convey so much thereof as may be found to have been assigned to him, to the plaintiff.'

The Supreme Court of Minnesota, to which the case finally got, adjudged the title to be in the heirs of Van Brunt, and Warren brought the case here on error.

Messrs. M. S. Wilkinson and C. K. Davis, for the plaintiff in error:

1. Warren, in his declaratory statement, dates his settlement as of November 17th, 1853. Van Brunt does not pretend that his was made prior to June 4th, 1855. Warren's settlement was thus anterior to Van Brunt's. Where two or more persons have settled on the same quarter-section the right of pre-emption belongs to him who has made the first settlement.

2. If, in this view of the case, Warren is not entitled to the whole forty acres, a joint entry should have been allowed by the land department. There is nothing in the pre-emption laws which forbids a joint settlement, declaration, and purchase. The admitted rule, 'that where two or more persons have settled upon the same quarter-section each shall be permitted to enter his improvement as near as may be by legal subdivisions,' is very well so far as it goes, but it will not apply where both claimants have their improvements on the same quarter of the quarter-section, or forty acres, the smallest legal subdivision. In such a case exact justice would seem to require that they enter jointly the whole.

title: Warren v. Van Brunt


text: Talk:Warren v. Van Brunt

title: Talk:Warren v. Van Brunt


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Warren v. Van Brunt/Opinion of the Court

3. Finally. The very least that Warren is entitled to is the part of what now turns out to be the quarter of a quarter-section; that would fall to him by giving effect to the dividing-line agreed on by the parties before the government survey. That is what he asks for, as an alternative.

Messrs. J. M. Carlisle and J. D. McPherson, contra.

The CHIEF JUSTICE, having stated the case, delivered the opinion of the court.

When Warren and Van Brunt made their settlement upon the lands, in 1853, they acquired no right of pre-emption, as the act of Congress then in force only gave that right to settlers upon lands in the then Territory of Minnesota which had been surveyed. On the 4th of August, A.D. 1854, the provisions of the Pre-emption Act were extended to unsurveyed lands in that Territory; but it was further provided that if, when the lands were surveyed, it should appear that two or more persons had settled upon the same quarter-section, each should be permitted to enter his improvements as near as might be by legal subdivisions.

There is no legal subdivision of the public lands less than a quarter of a quarter-section, or forty acres, except in the case of fractional sections. The lands in controversy, therefore, could not have been subdivided for the purposes of entry and purchase. The forty acres must be taken as a whole or not at all.

Warren and Van Brunt each claimed the right to purchase the whole. There could be no entry by either until the questions arising between them had been settled. To meet such a case, the act of Congress under which they each made claim, provided that the register and receiver of the land district in which the land was situated should make such settlement, subject to an appeal to, and revision by, the Secretary of the Interior. The Commissioner of the General Land Office exercised a supervision over this action of the register and receiver under his general powers in respect to private land claims and the issuing of patents. The issue of the patent upon the award of these officers was final and conclusive as between the United States and the several claimants. It passed the legal title to the patentee. The remedy of the defeated party, if any thereafter, was by a proceeding in the courts against the patentee or those claiming under him.

It is claimed on the part of the defendants in error that the decision of the government officers in this case is conclusive as between the claimants themselves, inasmuch as there was an actual submission of the controversy by both, and the court has found that there was no fraud, unfairness, or misconduct in the hearing or in the production of the testimony, either on the part of Van Brunt or his heirs, or the several officers who were called upon to act.

This question has recently been fully considered by this court, in the case of Johnson v. Towsley, and it was there held that 'when those officers decide controverted questions of fact, in the absence of fraud or impositions, or mistake, their decision on those questions will be final,' but that 'it was the right of the proper courts to inquire, after the title had passed from the government and the question became one of private right, whether, according to the established rules of equity and the acts of Congress concerning the public lands, the party holding that title should hold absolutely as his own or as trustee for another.' We are satisfied with this ruling, and this leads us to inquire whether, upon the facts as found by the court, the officers of the government did err in awarding the patent to Van Brunt. The record does not disclose the facts found by the officers.

It is first contended by Warren that the patent should have been issued to him, because his settlement upon the disputed premises was both in fact and by the declaratory statements of the respective parties anterior to that of Van Brunt, and because by the act of Congress the first settlement gives the better right. It is not important for us to know what the claims of the parties have been. We must look to the facts as they actually existed, and from these it appears that neither of the parties had an advantage over the other by reason of a prior settlement. They both went upon the premises at the same time and, for awhile, their occupancy was joint. After the partition, Van Brunt remained in the house alone. He was there in no respect as the tenant of Warren, but by reason of his right as part owner. His short absence after his eviction upon his lands adjoining, cannot be considered an abandonment of his possession, for he must have been all the time at work upon his new house, which was finished and ready for occupation in from two to four weeks. Warren was absent at Mankato, after the partition, from July until October, and he did not actually reside himself on the disputed forty acres many months. He had, therefore, no claim superior to that of Van Brunt on account of his possession.

It is next insisted that a joint entry of the forty acres by the two should have been permitted. No such demand was made upon the government by Warren. He claimed the right to enter the whole, and upon that claim the parties went to a hearing. He might have asked to make his entry jointly with Van Brunt, but he did not. He is concluded by his election made at the time. Having been defeated upon his claim as made, he cannot, in the absence of fraud or surprise, come into court and ask relief upon another, which he might have urged then. Besides, he asks no such relief in his bill, which is the foundation of the present proceeding. He there claims a superior right of pre-emption to the whole, and not an equitable right to a joint ownership.

It is again insisted that a decree should have been entered in favor of Warren, charging the heirs of Van Brunt as his trustees for all that part of the premises situated on the east side of the partition-line. This claim was not made in the bill, but the contract of partition having been set out in the answers for the purpose of explaining the character of the occupancy of Van Brunt, Warren asked in his replication to be allowed the benefit of it in case he failed to maintain his right to the whole. He was willing to repudiate the contract if by so doing he could get an advantage, but if he failed in that, insisted upon its enforcement. But such a contract cannot be enforced to any extent. The pre-emption laws provided, at the time of this entry and purchase, that before any person should be allowed to enter lands upon a claim for pre-emption he must make oath that he had not directly or indirectly made any agreement or contract in any way or manner with any person, by which the title he might acquire by his purchase should enure in whole or in part to the benefit of any person except himself. Forfeiture of title to the land purchased, and of the money paid for it, was made the penalty of false swearing in this particular. An entry could not have been made, therefore, by Van Brunt in trust for Warren; and if it could not have been made, a court of equity will not decree that it was. All contracts in violation of this important provision of the act are void and are never enforced. It has been so decided many times by the Supreme Court of Minnesota. We are satisfied with these decisions.

In our opinion, there was no error in the decision of the government officers, or in the decree of the Supreme Court of Minnesota.

DECREE AFFIRMED.


text: Talk:Warren v. Van Brunt/Opinion of the Court


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Heine v. Levee Commissioners

APPEAL from the Circuit Court for the District of Louisiana.

This was a suit in chancery brought by Heine and others, holders of bonds issued by what is called the board of levee commissioners of the levee district for the parishes of Carroll and Madison of the State of Louisiana. The board thus described was made a quasi corporation by the legislature of Louisiana, with authority to issue the bonds and provide for the payment of interest and principal by taxes levied upon the real and personal property within the district. The bill alleged a failure to levy these taxes and to pay the interest on any part of said bonds, that the persons duly appointed levee commissioners had pretended to resign their office for the purpose of evading this duty, and that the complainants had applied in vain to the judge of the District Court, who was by statute authorized to levy a tax on the alluvial lands to pay the bonds if the levee commissioners failed to do so. The prayer for relief was that the levee commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and if, after reasonable time, they failed to do so, that the district judge be ordered to do the same; and for such other and further relief as the nature of the case required.

No judgment at law had been recovered on the bonds or any of them, nor any attempt to collect the money due by suit in the common-law court.

A demurrer to the bill was sustained in the Circuit Court, and the plaintiffs appealed from the decree of dismissal rendered on that demurrer.

Mr. Thomas Allen Clarke, for the appellants, contended:

That the commissioners having resigned could no longer in their corporate capacity be sued at law.

That there was a contract between the bondholders and the corporation not unlike an equitable mortgage; for that the contract was not simply an agreement to pay money but one to pay money out of a fund under the control of the commissioners; that it belonged specially to equity to enforce such a contract.

That it was part of the contract that the taxes should pay these bonds; that the holders had, therefore, a species of lien on the lands on which the taxes were to be laid; this again being a matter specially of equitable cognizance.

That though the suit was by a bill in equity, yet that it might be taken (other grounds of relief failing) as a petition for mandamus.

That the case, in short, was a very complicated case, such as the law afforded no relief for; and that one was to be worked out through equitable mechanism unless a shocking injustice was to be tolerated.

Messrs. S. R. Walker, W. Tunstall, and J. E. Leonard, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Heine v. Levee Commissioners


text: Talk:Heine v. Levee Commissioners

title: Talk:Heine v. Levee Commissioners


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Heine v. Levee Commissioners/Opinion of the Court

The question presented by the present case is not a new one in this court. It has been decided in numerous cases, founded on the refusal to pay corporation bonds, that the appropriate proceeding was to sue at law and by a judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the corporation could be found liable to such execution and sufficient to satisfy the judgment. Then, if the corporation had authority to levy and collect taxes for the payment of that debt, a mandamus would issue to compel them to raise by taxation the amount necessary to satisfy the debt.

Unless, then, there is some difficulty or obstruction in the way of this common-law remedy, chancery can have no jurisdiction.

It is said that by reason of the resignation of the levee commissioners on suit can be sustained against them so as to procure a judgment on which the mandamus may ultimately issue.

But the present suit is brought against these very men in their official character, and no difference can be seen in their capacity to be sued in a court of law and a court of equity. The same service of process is required in each. The same officers serve the process, and the jurisdiction of the court over the person is governed by precisely the same principles in each case. The court of chancery possesses no extraordinary powers to compel persons to submit to its jurisdiction and litigate before it, not possessed by a common-law court, when the latter is competent to give relief.

This proposition was directly in issue and distinctly settled in the case of Rees v. City of Watertown, at the present term. In that case the plaintiff had obtained judgment, issued execution, which was returned nulla bona, and had then procured a writ of mandamus, ordering the aldermen of the city to levy the tax. The aldermen resigned before the writ could be served, with intent to evade its effect. After other aldermen were elected, a new writ was served on them, and they in turn resigned, after an order to show cause why they should not be punished for a contempt in failing to obey the writ of mandamus. Notwithstanding all this, we held that chancery had no jurisdiction, by a direct proceeding, to levy the tax or to seize the property of the citizens and sell it for the satisfaction of the judgment.

That case was much stronger than the one before us, and is unquestionably decisive of this. It is very clearly shown that the total failure of ordinary remedies does not confer upon the court of chancery an unlimited power to give relief. Such relief as is consistent with the general law of the land, and authorized by the principles and practices of the courts of equity, will, under such circumstances, be administered. But the harship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent and assume an unregulated power of administering abstract justice at the expense of well-settled principles.

It is attempted in argument to support this exercise of authority by reference to some of the acknowledged grounds of equity jurisdiction. One of these is the doctrine of specific performance of contracts. But while equity has, in some cases, enforced in this manner a contract to deliver specific stocks, there is no such case here. The plaintiffs have their bonds or stocks. It is the money due on them which they want now. And in this respect the case is one of compensation in damages for a failure to pay the money due on the bond. All that plaintiffs can get is this money and interest, and that is precisely what a court of law would give them. The almost universal rule on the subject of specific performance, as regards contracts other than those for real estate is, that where adequate compensation can be made by the damages recoverable at law, equity will not interfere.

It is said in argument that plaintiffs have a lien upon the taxable property of the district for the payment of these bonds, and that equity always enforces liens where no other mode of enforcing them exists. Whether this be the true doctrine of a court of equity to the full extent here claimed we need not decide. Nor need we decide whether taxes once lawfully levied are, until paid, a lien on the property against which they are assessed, though it is laid down in the very careful work of Judge Dillon, that taxes are not liens upon the property against which they are assessed, unless made so by the charter, or unless the corporation is authorized by the legislature to declare them to be liens. But here no taxes have been assessed except those which have been released by the bondholders accepting new bonds for the interest of the year so assessed. And it is too clear for argument that taxes not assessed are no liens, and that the obligation to assess taxes is not a lien on the property on which they ought to be assessed. This was one of the points urged and overruled in the case of Rees v. Watertown.

The court is asked if it should fail to find any principle peculiar to courts of equity on which the bill can be sustained, to treat it as a petition for the writ of mandamus.

This would ignore the well-established principle of the Federal courts that the line between the equitable and common-law jurisdiction must be maintained, and that a suit must be of the one character or the other, and be prosecuted by pleadings and processes belonging to each class of jurisdiction.

Mandamus is essentially and exclusively a common-law remedy and is unknown to the equity practice. But if this were otherwise it is the well-settled doctrine of this court that the Circuit Courts cannot use the writ of mandamus as an original and independent remedy, but are limited to its use as a process in the enforcement of rights when jurisdiction has been already acquired for other purposes. In fact, in the class of cases in which it is here sought it is a writ in execution of the judgment of the court already rendered, and can only be used because it is an appropriate process for that purpose.

The Circuit Court cannot, therefore, issue the writ if the bill could be treated merely as a petition on the common-law side of the court, praying for that remedy.

There does not appear to be any authority founded on the recognized principles of a court of equity on which this bill can be sustained. If sustained at all it must be on the very broad ground that because the plaintiff finds himself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men, that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which in the imperfection of human nature often admits of no redress. The holder of a corporation bond must in common with other men submit to this calamity, when the law affords no relief.

The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National. In the case before us the National sovereignty has nothing to do with it. The power must be derived from the legislature of the State. So far as the present case is concerned, the State has delegated the power to the levee commissioners. If that body has ceased to exist, the remedy is in the legislature either to assess the tax by special statute or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee.

In the case of Walkley v. City of Muscatine and Rees v. City of Watertown, already cited, we have distinctly refused to enter upon this course, and we see no reason in the present case to depart from the well-considered judgment of the court in those cases, especially the latter.

DECREE AFFIRMED.

Dissenting, Mr. Justice CLIFFORD and Mr. Justice SWAYNE.

Mr. Justice BRADLEY did not sit.


text: Talk:Heine v. Levee Commissioners/Opinion of the Court


text:
Board of Commissioners v. Gorman

In this case, which came here on error to the Supreme Court of the Territory of Idaho, the board of commissioners of Boise County and B. T. Davis, plaintiffs in error, asked that a writ might issue from this court commanding the restoration of the said Davis to the office of assessor and tax collector of Boise County for the reason, as was alleged, that he had been ousted from that office by virtue of a writ issued upon the judgment in the court below, after the allowance of a writ of error to this court, which operated as a supersedeas.

The application was founded on the supposed effect which the eleventh section of an act of June 1st, 1872, entitled 'An act to further the administration of justice,' had upon certain provisions of the Judiciary Act.

This last-named act, it will be remembered, after enacting by its twenty-second section that final judgments in the Circuit Court may be examined and reversed or affirmed in the Supreme Court, the citation being in such case signed by a judge of the Circuit Court or justice of the Supreme Court, and the adverse party having at least thirty days' notice,. . . continues:

'And every justice or judge signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.'

The next section proceeds:

'SECTION 23. A writ of error, as aforesaid, shall be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged in the clerk's office, where the record remains, within ten days (Sundays exclusive) after rendering the judgment complained of, until the expiration of which term of ten days executions shall not issue in any case where a writ of error may be a supersedeas.'

The eleventh section of the act of 1872, above referred to as the basis of the application now made, thus enacts:

'Any party or person, desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward, with the permission of a justice or judge of the said appellate court.'

The reader who has possessed himself of the case of Telegraph Company v. Eyser, reported at much length in a former part of this volume, will, of course, see that the case now reported presents a sort of complementary one to that, and disposes of one of the questions there mentioned, the third, as being involved in the new enactment.

Mr. H. E. Prickett, in support of the motion; Messrs. H. S. Foote and G. W. Paschal, contra.

The CHIEF JUSTICE delivered the opinion of the court, stating the facts of the case in it.

title: Board of Commissioners v. Gorman


text: Talk:Board of Commissioners v. Gorman

title: Talk:Board of Commissioners v. Gorman


text:
Board of Commissioners v. Gorman/Opinion of the Court

In order that a writ of error may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. Execution cannot issue upon the judgment until the expiration of ten days, exclusive of Sundays, from the entry thereof. If the writ of error and bond are filed before the expiration of the ten days, no execution can issue so long as the case in error remains undisposed of. After the expiration of the ten days an execution may issue. Notwithstanding this, under the provisions of the act of 1872, upon the filing of the bond within sixty days from the time of the entry of the judgment a supersedeas may be obtained. Such a supersedeas, however, stays proceedings only from the filing of the bond. It prevents further proceeding under an execution which has been issued, but does not interfere with what has already been done.

In this case the record shows that the judgment was actually entered on the 20th day of January. The entry as made was read in court on the morning of the 21st and the record signed by the judges, but it was ordered to be made on the 20th. The ten days, exclusive of Sundays, prescribed by the act of Congress for delay of execution, expired on Saturday, the 31st of January. On Monday, the 2d of February, a majority of the judges of the court directed the clerk to issue a writ of restitution to carry the judgment into effect. On the same day the chief justice of the court allowed a writ of error and signed the necessary citation. A copy of the writ of error was filed in the clerk's office, and the writ and citation actually served upon the defendant in error before the clerk had completed the preparation of the writ of restitution. After he had completed its preparation he handed it to the attorney for the defendant in error, who had previously been served with the citation. No supersedeas bond was filed with the clerk on the 2d, and no notice was given that any had been approved. On the morning of the 3d of February the writ of restitution was served and Davis removed from his office. After this, and on the same day, a bond approved by the chief justice was left in the clerk's office by him. It nowhere appears from the record when this bond was approved. It bears date the 2d of February, but there is no certificate of the time when the approval was entered. It is certain, however, that it was not filed in the clerk's office until after service of the writ of restitution. The writ of error operated as a supersedeas only from such filing. That was too late to prevent the removal of Davis from his office in pursuance of the authority of the judgment; and we cannot now order him to be restored.

It is claimed, however, that as the record of the judgment was not signed by the judges of the court until the 21st, the ten days did not commence to run until that date, and we are referred to the case of Silsby v. Foote, as establishing such a rule. In that case the decision was actually rendered on the 28th August, but the decree was special in its terms, and was not settled or signed by the judge until the 11th December. Before any entry could be made it was necessary that the judge should pass upon its form. It was, therefore, quite right to delay the appeal until the exact character of the decree could be known.

Here, however, the form of the judgment was settled upon the announcement of the decision, and it was entered accordingly.

But the writ of restitution was not served until after the expiration of ten days from the 21st, and it does not appear that it was actually delivered to the sheriff for service before that time. There is nothing to prevent the preparation by the clerk of an execution before the expiration of the ten days. It cannot be issued before, and it is not issued until it is placed beyond the control of the clerk himself. So long as it remains with him, or under his control, it is like any other paper in his office.

We think the motion must be DENIED, and in accordance with the request of the parties made at the argument,

THE CASE IS DISMISSED.


text: Talk:Board of Commissioners v. Gorman/Opinion of the Court