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Tameling v. United States Freehold and Emigration Company

ERROR to the Supreme Court of the Territory of Colorado.

This is an action by the defendant in error against Tameling, to recover possession of one hundred and sixty acres of land in the County of Costilla and Territory of Colorado. The tract is situate within the exterior boundaries of a larger one, known as the 'Costilla estate,' which was severed from the 'Sangre de Cristo grant.' The latter is known and designated as 'claim No. 14 of Charles Beaubien,' in the letter of the Secretary of the Interior to the Speaker of the House of Representatives, bearing date Feb. 11, 1857. With that claim were transmitted copies of the grant, order of prefect's court, notice of claim, deed of administrator, testimony, and report.

The case was sbmitted to the District Court on the following agreed statement of facts:--

The piece or parcel of land described in the plaintiff's declaration, and for the possession of which the plaintiff brings this suit, is now, and at the time of the commencement of this suit was, situate, lying, and being in the County of Costilla, in the Territory of Colorado, and, at the time of the commencement of this suit, and for a long time prior thereto, was in the actual possession of the said defendant, who, before the commencement of said suit, has made valuable improvements thereon.

The said piece or parcel of land is within the exterior boundaries of and forms a part of a larger tract or parcel of land claimed by the plaintiff in fee-simple, and known as the 'Costilla estate,' which said estate is bounded as follows, viz.: 'Beginning at a point one league below the confluence of the Rio Costilla and the Rio del Norte; thence up the Rio del Norte, on the eastern bank thereof, to its confluence with the Rio Culebra; thence easterly, following the southern bank of the Rio Culebra, to a point at or near the junction of the Rio Seco with the Rio Culebra; thence easterly to the Culebra Peaks; thence southerly to the boundary of the lands of Miranda and Beaubien, and to a point at or near the road to Maxwell's thence westerly, following the mountain-ranges and along the boundary of the lands of Miranda and Beaubien, to a point about one league south of the Rio Costilla; and thence westerly to the place of beginning: containing by estimation five hundred thousand acres, or thereabouts.'

The said Costilla estate prior to the commencement of this suit formed a part and parcel of a yet larger tract or parcel of land, known as the 'Sangre de Cristo grant;' from said grant the said estate was segregated by the conveyance thereof by Martin Coates Fisher to the plaintiff, which said conveyance is hereinafter referred to; and which said grant, as an entirety (including said Costilla estate), is described as follows: 'Beginning at a point one Spanish league below the confluence of the Rio de Costilla and the Rio del Norte; thence up the Rio del Norte on the eastern bank thereof, to a point one league above the mouth of the Rio Trinchara; thence north-east to a point; thence along said mountain, south-east to a point established on the top of said mountain; thence south to the boun dary of the lands of Miranda and Beaubien; thence along said boundary to a point about one league south of the Rio de Cos tilla; and thence west to the place of beginning.'

The said Costilla estate is included in the Sangre de Cristo grant, whether reference be had to the description thereof given in the judicial certificate of possession, or in the petition of Charles Beaubien herein set forth.

The said Sangre de Cristo grant is known and designated as 'Claim No. 14 of Charles Beaubien' in the letter of the Secretary of the Interior of the United States, transmitting a transcript of the claim of the said Beaubien to said grant, to the Hon. N. P. Banks, Speaker of the House of Representatives, said letter bearing date Feb. 11, 1857, and which said letter, and all of the documents pertaining to said Sangre de Cristo grant therein referred to, are in the words and figures following, viz.:--

'DEPARTMENT OF THE INTERIOR, Feb. 11, 1857.

'SIR,-I have the honor to transmit herewith for the action of Congress, contemplated by the eighth section of the act of 22d of July, 1854, the transcript of the land-claims in New Mexico, designed for the House of Representatives, as per letter from the Commissioner of the General Land-Office of the 10th instant, a copy of which is enclosed.

'Similar documents, submitted by the commissioner in the same letter for the Senate of the United States, have been appropriately disposed of.

'With great respect, your obedient servant,

'R. McCLELLAND, Secretary.

'HON. N. P. BANKS,

'Speaker of the House of Representatives.'

'GENERAL LAND-OFFICE, Feb. 10, 1857.

'SIR,-I have the honor to submit to the department the following documents, transmitted to this office by the surveyor-general of New Mexico, with his letter dated 31st December, 1856, to wit:--

'Claim No. 14, of Charles Beaubien. Transcript for the House of Representatives, embracing copies of grant (original), translation of grant, order of prefect's court, notice of claim, deed of administrator, testimony, and report.

'Also, § milar documents for the United States Senate, with the exception of another transcript of the original grant, which has not been received from the surveyor-general.

'Claim No. 29, Casa Colorado. Transcript for the House of Representatives, embracing copies of grant (original), translation of grant, notice, testimony, and report.

'Also, similar documents for the United States Senate, with the exception of another copy of original grant which has not been received from the surveyor-general.

'Claim No. 32, of Hugh Stevenson et als. Transcript for the House of Representatives, embracing copies of grant (original), translation of grant, testimony, map of the Bracito tract of land, deed of Francisco Gracia y San Juan to Hugh Stevenson et al., deed of Hugh Stevenson et al. to Francisco Gracia y San Juan, notice, brief, and report.

'Also, similar documents for the United States Senate, with the exception of other original copies of grant and map of the Bracito tract of land, which have not been received from the surveyor-general.

'The foregoing three claims have been examined and approved by the surveyor-general of New Mexico, who, in transmitting the above-mentioned copies of the documents, requested that the same may be submitted to Congress at their present session for their action upon the claims, and they are therefore accordingly herewith submitted for that purpose.

'With great respect, your obedient servant,

'THOMAS A HENDRICKS, Commissioner.

'HON. R. McCLELLAND,

'Secretary of the Interior.' 'Claim No. 14, of Charles Beaubien. 'Seal fourth. [SEAL.] Two rials.

'For the years one thousand eight hundred and forty-two and forty-three.

'Most Excellent Governor Don MANUEL ARMIJO:--

'Louis Lee, a naturalized citizen and resident of the first demarcation of Taos, and Narciso Beaubien, a citizen, and also a resident of the above-named place, appear before your Excellency in the manner and form best provided by law and most convenient to us, and state that, desiring to encourage the agriculture of the country, and place it in a flourishing condition, and being restricted with lands wherewith to accomplish said purpose, we have seen and examined with great care that embraced within the Costilla, Culebra, and Trincheras Rivers, including the Rito of the Indians and the Sangre de Cristo to its junction with the Del Norte River, and finding in it the qualities of fruitfulness, fertile lands for cultivation, and abundance of pasture and water, and all that is required for its settlement, and the raising of horned and woollen cattle, and being satisfied with it, and knowing that it is public land, we have not hesitated to apply to your Excellency, praying you, as an act of justice, to grant to us the possession of a tract of land to each one within the afore-mentioned boundaries, promising to commence the settlement of the same within the time prescribed by law, until the colony shall be established and permanently fixed, provided your Excellency be pleased to grant it to us. Such is the offer we make, and swear it is not done in malice.

'LOUIS LEE.

'NARCISO BEAUBIEN.

'SANTE F E, Dec. 27, 1843.'

'SANTA F E, Dec. 30, 1843.

'Referred to the prefect, in order that, if the land petitioned for be not otherwise disposed of, he cause the possession referred to by the petitioners to be given.

'ARMIJO. [RUBRIC.]

'DONACIA NO VIGIL [RUBRIC], Acting Secretary."RIO ARRIBA, Jan. 7, 1844.

'The justice of the peace to whose jurisdiction belongs the land petitioned for, which, I believe, should be the third demarcation, having before him the superior decree of the most excellent governor of the 30th of December last, will proceed to the land and place the petitioners in possession, provided it is not to the injury of third parties.

'ARCHULETA. [RUBRIC.]'

'TO DON MIGUEL SANCHEZ, Justice of the Peace of the Third Demarcation:--

'The undersigned, Mexican citizens and residents of this precinct, in the most approved anner provided by law, appear before you, and state that the public land contained in the foregoing statement having been granted to us by the government of the department, as will be seen by the superior decree entered on the margin, and lacking the certificate of possession which will insure to us our legal title thereto, and prevent any one from disturbing us, we pray you to consider us as having presented ourselves, after which we will enlarge this for such ends as our rights may require. Therefore, we pray you to grant our request, justice being what we ask for. We swear that it is not done in malice, and in whatever may be necessary, &c.


text: Talk:Tameling v. United States Freehold and Emigration Company

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text:
Tameling v. United States Freehold and Emigration Company/Opinion of the Court

'LOUIS LEE.

'NARCISO BEAUBIEN.

'TAOS, Jan. 8, 1844.'

'Jan. 8, 1844.

'Considered as presented, and received as far as required by law, I, the present justice, proceeding with my attending and instrumental witnesses to the place designated in the foregoing documents, and let the possession selected by the petitioners to be given, so that they, their heirs and successors, may hold the same by a just title. The citizen Miguel Sanchez, justice of the peace of the third jurisdiction of Taos, so provided, ordered, and signed, with those in his attendance. To which I certify.

'JOS E MIGUEL SANCHEZ. [RUBRIC.]

'Attending:--

'JUAN RAMOR VALDEZ. [RUBRIC.]

'PEDRO VALDEZ. [RUBRIC.]'

'In the pueblo of Taos, on the twelfth day of January, 1844, I, the citizen Miguel Sanchez, justice of the peace of this demarcation, by virtue of the direction contained in the foregoing decree, proceeded to the land referred to by Don Luis Lee and Don Narciso Beaubien in the foregoing instrument, and being then there with my attending and instrumental witnesses for that purpose appointed, the landmarks of the boundaries were then established according to the manner in which the land is described in the preceding petition, and corresponding with the plat which I subscribed; and, commencing on the east side of the Del Norte River, a mound was erected at one league distance from its junction with the Costilla River, thence following up the Rio del Norte, on the same eastern bank, to one league above the junction of the Trenchera River, where another mound was erected; and continuing from west to north, east, following up the current of Trinchera River to the summit of the mountain, where another mound was established; and following the summit of the mountain to the boundary of the lands of Miranda and Beaubien, the fourth mound was established; and continuing on the summit of the Sierra Madre, and following the boundary of the aforementioned lands to opposite the first mound erected, on the Del Norte River, where the fifth and last mound was erected; and from thence in a direct line to the first one erected on the north; and, being registered, I took them by the hand, walked with them, and caused them to throw earth, pull weeds, and other evidence of possession, whereupon the proceedings were concluded, the boundaries determined without any conflicting claim of any third party, as I, the aforesaid justice, in the name of the sovereignty of the nation (may God preserve it), gave to the aforementioned Don Louis Lee and Don N. Beaubien the personal and perfect possession which they solicit, serving as a title for them, their children and successors, in which I will protect and defend them; and I order them not to be deprived thereof without being first heard, and sentence given against them according to law and evidence.

'In testimony whereof, I sign with my attending and instrumental witnesses, who were Messrs. Ceram St. Vrain, Manuel Martin, and Juan Ortega, at present residents of this precinct. To which I certify.

'JOS E MIGUEL SANCHEZ.

'Instrumental:--

'CERAM ST. VRAIN.

'MANUEL ANTONIO MARTIN.

'JUAN ORTEGA.

'Fees: $30.

'NOTE.-The words interlined are valid. [RUBRIC.]

'Attending:--

'JUAN RAMOR VALDEZ.

'PEDRO VALDEZ."SURVEYOR-GENERAL'S OFFICE,

'TRANSLATOR'S DEPARTMENT, June 18, 1856.

'I, David V. Whiting, translat r, certify the foregoing to be a correct translation of the original on file in this office.

'DAVID V. WHITING, Translator.

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, Dec. 30, 1856.

'The foregoing is a true copy of the original on file in this office.

'WILLIAM PELHAM,

'Surveyor-General of New Mexico.'

'DON FERNANDO DE TAOS, May 3, 1847.

'This being the regular May Term of the prefect's court, it met and was opened according to law, and, among other proceedings, the following were held. And the said Joseph Pley, administrator as aforesaid, presented the following petition to the court, in letters and figures as follows, to wit:--

'To the Honorable Judge of the Prefect Court for the County of Taos, Territory of New Mexico:--

'Your petitioner, Joseph Pley, administrator of the estate of Stephen L. Lee, deceased, respectfully represents, that the personal estate of the said Stephen L. Lee, deceased, is insufficient to pay the debts of the estate, as will appear by the account of your petitioner's administration. The list of debts due to and by the deceased remaining unpaid, and there being no other assets in the hands of your petitioner whereby to enable him to meet the demands against said estate, your petitioner therefore prays that so much of the real estate of the said deceased may be sold by order of the court as will be sufficient to pay the debts of the deceased, and that your Honor will make an order ordering your petitioner to proceed to sell all or a part of said real estate at either private or public sale, and upon such terms as to your petitioner, under the instructions of the court, may seem most beneficial to the interest of all concerned.

'JOSEPH PLEY,

'Administrator of S. L. Lee, Deceased.'

'DON FERNANDO DE TAOS, May 3, 1847.

'TO JOSEPH PLEY, Administrator of the Estate of STEPHEN L. LEE, Deceased.

'Your petition to the prefect court within and for the county of Taos, in the Territory of New Mexico, praying to said court to sell the real estate of Stephen L. Lee, deceased, or so much thereof as will satisfy such claims as may be presented, the court as aforesaid grants the request contained in said petition, and that you are hereby permitted to sell said real estate at private sale, at not less than the value as appraised.

'Witness, Robert Crary, clerk of the prefect court for said county, at Don Fernando de Taos, this third day of May, A.D. 1847.

'ROBERT CRARY, Clerk.

'Approved: VINCINTE MARTINEZ, Prefecto.'

'I hereby certify that the foregoing is a true copy of the record of the prefect court, on file in my office, of the May Term of said court, held in the town of Don Fernando de Taos on the first Monday of May, A.D. 1847, at which time Vincente Martinez was prefect, and Robert Crary clerk.

'Witness, Pedro Valdez, clerk of the prefect's court of the county of Taos and Territory of New Mexico, and my private seal, there being no seal for said county, Aug. 1, 1855.

'[SEAL.] PEDRO VALDEZ, Clerk.'

'TERRITORY OF NEW MEXICO,

'County of Taos:--

'I, Jos e Benito Martinez, judge of the probate or prefect's court within and for the county of Taos, do hereby certify that Pedro Valdez, who signed the foregoing certificate, and whose signature thereto is genuine, was at the time of so doing clerk of said court.

'Given under my hand this sixth day of August, A.D. 1855.

'JOS E BENITO MARTINEZ, Judge of Probate.'

'UNITED STATES OF AMERICA,

'Territory of New Mexico, ss:--

'I, W. W. H. Davis, secretary of the Territory of New Mexico, do hereby certify that Jos e Benito Martinez, whose certificate is herein annexed, and who has thereto subscribed his name, was at the time of so doing a judge of probate in and for the county of Taos and Territory aforesaid, duly elected and qualified to act as such, and that the signature purporting to be his is genuine.

'In testimony, I have hereunto set my hand and affixed my seal of office the eleventh day of August, A.D. 1855.

'[SEAL.] W. W. H. DAVIS,

'Secretary Territory of New Mexico."SURVEYOR-GENERAL'S OFFICE,

'SANTE F E, Dec. 30, 1856.

'The foregoing is a true copy of the original on file in this office.

'WILLIAM PELHAM,

'Surveyor-General of New Mexico.'

'This indenture, made this fourth day of May, in the year of our Lord 1848, between Joseph Pley, administrator of Stephen L. Lee, deceased, of the county of Taos and Territory of New Mexico, of the first part, and Charles Beaubien, of the same county and Territory, of the second part, witnesseth: That whereas an order was entered at the January Term of the prefect's court of the county of Taos, commanding the said Joseph Pley to sell as administrator of said estate all the real estate of said deceased for the payment of debts allowed against said estate: Now, therefore, by virtue of said order, the said party of the first part, for and in consideration of the sum of $100, to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, doth hereby give, grant, bargain, sell, convey, transfer, and make over unto the said party of the second part, his heirs and assigns, for ever, all the right, title, and interest of the said Stephen L. Lee in and to the following-described tract, lot, or parcel of land: All that certain tract of land known as the Sangre de Cristo claim, and which was granted by the Mexican government to Stephen L. Lee and Narciso Beaubien, and described as follows: Beginning from a point one league below the confluence of the Rio de Costilla and the Rio del Norte; thence up the Rio del Norte, on the eastern bank, to a point one league above the mouth of the Trinchera; thence north-north-east to a point on the mountain; thence along the mountain south-east, east to an established point on the top of the mountain; thence south, along the line of the Poniete claim of Miranda and Beaubien; thence to a point about a league south of the Rio Costilla; thence west to the place of beginning; and a number of acres not known: to have and to hold the above-granted premises unto the said Charles Beaubien, his heirs and assigns, for ever. In testimony whereof, the party of the first part has hereunto set his hand and affixed his seal the day and year above written.

'[L. S.] JOSEPH PLEY,

'Administrator of the Estate of Stephen L Lee.

'In presence of VITAL TRUJILLO."TERRITORY OF NEW MEXICO,

'Be it remembered that on this eleventh day of May, in the year 1848, Joseph Pley, administrator of the estate of Stephen L. Lee, who is personally known to the undersigned, clerk of the Circuit Court for said county, to be the same person whose name is subscribed to the foregoing instrument in writing, and acknowledged the same to be his act and deed, as administrator as aforesaid, for the purposes therein mentioned.

'Taken and certified the day and year above written.

'ROBERT CRARY, [SEAL]

'Clerk of the Circuit Court.'

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, Dec. 30, 1856.

'The foregoing is a true copy of the original on file in my office.

'WILLIAM PELHAM,

'Surveyor-General of New Mexico.'

'To General WILLIAM PELHAM, Surveyor-General of the Territory of New Mexico:--

'Charles Beaubien, a citizen of the United States and a resident of the Territory of New Mexico, represents that he is the legal owner, in fee, of a certain tract of land lying and being situated in the county of Taos, in said Territory of New Mexico, known as the Sangre de Cristo grant, described as follows: Beginning from a point one Spanish league below the confluence of the Rio de Costilla and the Rio del Norte; thence up the Del Norte, on the eastern bank, to a point one league above the mouth of the Rio Trinchera; thence north-east to a point on the mountain; thence along said mountain, south-east to a point established on the top of the said mountain; thence south to the boundary of the lands of Miranda and Beaubien; thence along said boundary to a point about one league south of the Rio Costilla; and thence west to the place of beginning: all of which points and boundaries are well-known landmarks, and monuments were placed at the same at the time of giving possession of the same to the original grantees. The said Charles Beaubien, the present claimant and actual owner, claims a perfect title to said lands by virtue of a grant made on the thirtieth day of December, A.D. 1843, by Manuel Armijo, governor of the department of New Mexico, and perfected according to law by possession being given by the alcalde, Jos e Miguel Sanchez, on the twelfth day of January, A.D. 1844. Said grant was made according to the usage and laws and customs of the Republic of Mexico, to Luis Lee and Narciso Beaubien, as will appear by reference to said laws and usages, at that time in force, and the Spanish laws, so far as recognized by the government of the Republic of Mexico. The said Charles Beaubien further states, that he cannot show the quantity of land claimed by him, only so far as set forth by the foregoing description of points and bounds, nor can he furnish a plat of the survey of the same, as no survey has ever been made. The claimant further states that the said Luis Lee and Narciso Beaubien, after having been put in lawful possession of said grant, conformed to all the laws and regulations in regard to the same as required at that time, and held possession thereof until Jan. 19, 1847, when both were slain in the massacre of Taos of that date; that Narciso Beaubien was the son of the claimant, and, according to law, all the interest of the said Narciso Beaubien, deceased, descends to the present claimant, and that he claims all the right, title, and interest of the said Luis Lee, deceased, by virtue of a deed made by the administrator of Luis Lee the fourth day of May, 1848. Said original grant is herewith filed, marked 'A;' deed from Joseph Pley, administrator of Luis Lee, to the claimant marked 'B,' also certified copy of the record of the court of probate for said county of Taos, authorizing the administrator to sell said right, title, and interest, marked 'C.' Claimant further states that he is prepared to prove that the Luis Lee whose name appears in the original grant, and the Stephen L. Lee whose name appears in the administrator's deed to the claimant, are one and the same person.

'Claimant is prepared further to prove, if deemed necessary, that since the said grant came into his possession he has had made extensive settlements on the same, and that it is becoming under his ownership rapidly populated. The claimant therefore respectfully asks a speedy acknowledgment of his claim.

'SMITH & HOUGHTON,

'Attorneys for Claimant.'

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, Dec. 30, 1856.

'The foregoing is a true copy of the original on file in this office.

'WILLIAM PELHAM,

'Surveyor-General of New Mexico."CHARLES BEAUBIEN, SANGRE DE CRISTO.

'DONACIA NO VIGIL, being duly sworn, was interrogated in the following manner:--

'Question. What office did you hold in year 1843 under the Mexican government?

'Answer. Acting secretary of the department of New Mexico.

'Q. What office did Manuel Armijo hold at that time?

'A. He was political governor and military commander of the department.

'Q. Is his signature on the grant made to Narciso Beaubien and Luis Lee to the Sangre de Christo and your own signature to said document genuine?

'A. They are.

'Q. What office did Juan Andres Archuleta hold at that time?

'A. He was the prefect of the northern district, and the land granted was within his district.

'Q. Do you know the signature of Archuleta, and is the one attached to said grant genuine?

'A. I do; and it is genuine.

'Q. Have you seen the governor and prefect sign their name?

'A. I have.

'Q. Are Stephen L. Lee and Luis Lee one and the same person, and was he as well known by one name as by the other?

'A. He was the sam person, and was as well known by one name as by the other.

'Q. Did you know Narciso Beaubien, the son of the present claimant?

'A. I did; and he and Lee were both killed at the massacre of Taos in the year 1847.

'Q. Did Narciso Beaubien have any children?

'A. He did not; he was sixteen years old when he was killed.

'Q. Have you any interest in this claim?

'A. I have not.

'Q. Do you know who was the prefect of Taos County in the year 1847, after the massacre?

'A. I was acting governor and secretary at that time, and Vincinte Martinez was appointed by me to fill that office.

'Q. Is your signature to the registry of said document genuine, and in what capacity did you sign?

'A. It is; and signed as secretary and recorder of land-titles under the Harney code.

'DONACIA NO VIGIL."Sworn and subscribed to before me this third day of December, 1856.

'WILLIAM PELHAM.'

'JOAB HOUGHTON, sworn:--

'Question. State if you knew Narciso Beaubien.

'Answer. I did.

'Q. State if he was the son of Charles Beaubien, the present claimant?

'A. He was so considered by his father and mother.

'Q. Did you know Stephen L. Lee, and how long did you know him?

'A. I knew him from 1843 up to the time of his death.

'Q. State what the 'L' in his name stood for?

'A. It stood for Louis, and sometimes he signed Stephen Louis Lee, but generally Stephen L. Lee; and he was often known among the Mexicans by Louis Lee, or Stephen L. Lee.

'Q. Are Lee and Narciso Beaubien alive now?

'A. They are both dead.

'Q. How did they come to their death?

'A. They were killed in the massacre of Taos, on the 19th of January, 1847.

'Q. Do you know if Narciso Beaubien had any children at the time of his death?

'A. He had not. He was a minor, and could not have been more than sixteen years of age at the time of his death.

'Q. Do you know the signature of Pedro Valdez, attached to the transcript of the record of the court, and is it genuine?

'A. I do. He was clerk of the probate court, and I saw him sign the transcript referred to.

'Q. Do you know the signature of Jos e Benito Martinez, attached to the document mentioned?

'A. I do; and saw him sign the certificate that Pedro Valdez was clerk of his court.

'Q. Do you know the signature of Joseph Pley, administrator of Stephen L. Lee, attached to the conveyance to Charles Beaubien?

'A. I do; and have been long acquainted with his signature, and have often seen him sign.

'Q. Do you know the residence of Vidal Trujillo, subscribing witness to said conveyance?

'A. I understand he resides at Ruyado, over one hundred miles from this place (Santa Fe).

'Q. Do you know the signature of Robert Crary, appended to the same document?

'A. I do; it is his signature, and I know he was clerk of the Circuit Court at that date.

'Q. Were you at that time chief justice of this Territory?

'A. I was.

'J. HOUGHTON.'

'Sworn to and subscribed before me this third day of December, 1856.

'WILLIAM PELHAM.'

'MANUEL MARTINEZ, sworn:--

'Question. Do you know Jos e Miguel Sanchez, the justice of the peace whose signature is affixed to the certificate of possession in this case?

'Answer. I have known him since I have had the use of reason.

'Q. Do you know his signature, and have you seen him sign?

'A. I know his signature, and have seen him sign frequently.

'Q. Is his signature appended to the foregoing document genuine?

'A. It is.

'Q. Is Jos e Miguel Sanchez dead, and when did he die?

'A. He died in the month of June of the present year.

'MANUEL MARTINEZ.'

'Sworn to and subscribed before me this fourth day of December, 1856.

'W. H. PELHAM, Surveyor-General.'

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, Dec. 30, 1856.

'The foregoing is a true copy of the original on file in this office.

' ILLIAM PELHAM, Surveyor-General.'

'CHARLES BEAUBIEN, Assignee of STEPHEN L. LEE and NARCISO BEAUBIEN, Deceased,

v.

THE UNITED STATES.

Sangre de Cristo grant.

'The above case was set for trial on the third day of December, 1856.

'On the twenty-seventh day of December 1843, Luis Lee and Narciso Beaubien petitioned Manuel Armijo, civil and military governor of New Mexico, for a grant of land in what is now the county of Taos, 'embracing the Costilla, Culebra, and Trinchera Rivers, including the Rito of the Indians, and Sangre de Cristo, to its junction with the Del Norte River.' This petition was referred, on the thirtieth day of December, 1843, by Manuel Armijo, the civil and military governor aforementioned, to the prefect, with instructions to give the possession asked for by the petitioners in case there was no impediment.

'On the 7th of January, 1844, Juan Andres Archuletta, the prefect, directed the justice of the peace of the demarcation wherein the land was situated to place the parties in possession, in accordance with the decree of the civil and military governor, by virtue of which the justice of the peace, Jos e Miguel Sanchez, placed the parties in possession of the land, with the boundaries contained in the petition, vesting in them, their children and successors, a title in fee to said lands.

'Narciso Beaubien, one of the grantees, was killed at the massacre of Taos, in the year 1847; and, dying without issue, his father, Charles Beaubien, the present claimant, became the heir of one undivided half of the land granted, and purchased the remaining undivided half from Joseph Pley, administrator of the estate of Stephen L. Lee, who was killed at the same time and place as Narciso Beaubien.

'The genuineness of the signatures of the granting officers and the signature of Joseph Pley, administrator of the estate of Stephen L. Lee, are proven by the testimony of competent witnesses. The signature of the clerk of the Probate Court, attached to a transcript of the record of the court ordering the sale of the property of Stephen L. Lee, deceased, is also proved to be genuine. It is also proven that Stephen L. Lee and Luis Lee, assigned in the original petition, were one and the same individual, and that Narciso Beaubien, the son of Charles Beaubien, the present claimant, died without issue. The testimony also shows that the land has been occupied from the time the grant was made up to the present day.

'The supreme authorities of the remote province of New Spain, afterwards the Republic of Mexico, exercised from time immemorial certain prerogatives and powers, which, although not positively sanctioned by congressional enactments, were universally conceded by the Spanish and Mexican governments; and there being no evidence that these prerogatives and powers were revoked or repealed by the supreme authorities, it is to be presumed that the exercise of them was lawful. The subordinate authorities of the provinces implicitly obeyed these orders of the governors, which were continued for so long a period until they became the universal custom or unwritten law of the land, wherein they did not conflict with any subsequent congressional enactment. Such is the principle sanctioned by the Supreme Court of the United States, as expressed in the case of Fremont v. The United States, 17 How. 542, which decision now governs all cases of a similar nature.

'The grant being a positive one, without any subsequent conditions attached, and made by a competent authority, and having been in the possession and occupancy of the grantees and their assigns from the time the grant was made, it is the opinion of this office that the grant is a good and valid one, and that a legal title vests in Charles Beaubien to the land embraced within the limits contained in the petition. The grant is therefore approved by this office and transmitted to the proper department, with the recommendation that it be confirmed by the Congress of the United States.

'WILLIAM PELHA, Surveyor-General

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, N. M., Dec. 30, 1856.

'SURVEYOR-GENERAL'S OFFICE,

'SANTA F E, N. M., Dec. 31, 1856.

'The foregoing is a true copy of the original on file in this office.

'WILLIAM PELHAM, Surveyor-General.'

Narciso Beaubien, the co-grantee with Stephen L. Lee (alias Luis Lee), of said claim No. 14, died in the year 1847, without issue, whereby his father, the said Charles Beaubien, became the sole heir of whatever interest the deceased had in said land-grant or claim; that in the year aforesaid the said Lee also died; that afterwards, and on the fourth day of May, in the year 1848, the said Charles Beaubien acquired the interest of the said Lee in said land-grant, by a purchase and conveyance thereof in due form of law, from the administrator of the estate of the said Lee; that the said Charles Beaubien had and possessed all of the rights, titles, and interests, both in law and equity, in said grant, which, by the proceedings above set forth and referred to in the aforesaid letter of the Secretary of the Interior, were vested in the said Narciso Beaubien and the said Stephen L. Lee, at the time of their death as aforesaid.

The said Charles Beaubien retained his aforesaid interest in said grant until after the passage and approval of a certain act of the Congress of the United States, entitled 'An Act to confirm certain private land-claims in the Territory of New Mexico,' approved June 21, 1860.

The claim designated in said act of Congress as claim No. 14 is the claim of the said Charles Beaubien to that tract of land hereinbefore described by its boundaries, and therein designated as the 'Sangre de Cristo grant,' and which tract of land includes that said 'Costilla estate.'

After the passage and approval of the said act of Congress, and on the seventh day of April, 1864, the right, title, and interest of the said Charles Beaubien in and to the said Sangre de Cristo grant, otherwise the said claim No. 14, was absolutely conveyed and vested in Hon. William Gilpin; and thereafter and prior to the fourteenth day of July, 1870, the said Gilpin conveyed the right, title, and interest in said grant by him so derived to one Morton Coates Fisher; that thereafter, and on the day and year last aforesaid, the said Morton Coates Fisher absolutely conveyed to the plaintiffs his right, title, and interest derived as aforesaid in and to that part and portion of the said grant or claim No. 14, generally known and herein designated as the 'Costilla estate,' the boundaries of which said estate, as taken from the said conveyance thereof, are hereinbefore given, and include the piece or parcel of land described in the plaintiff's declaration, and the possession of which is in controversy in this suit.

The said plaintiff has not conveyed or granted his title derived as aforesaid to the piece or parcel of land described in the declaration in this cause, nor the right of the possession thereof, to the defendant or other person; but has claimed the title to and possession of said land ever since the conveyance as aforesaid by the said Fisher to the plaintiff.

If the facts aforesaid, under the law, show that the plaintiff is entitled to the possession of the land described in the declaration in this case, then the finding of the court shall be for the plaintiff; if the said facts under the law show that the plaintiff is not entitled to such possession, then the finding of the court shall be for the defendant; and upon the finding of the court the proper judgment in ejectment for the plaintiff, or for the defendant, as the case may be, shall be entered of record in said court.

Judgment was rendered in favor of the plaintiff. It was affirmed by the Supreme Court of the Territory, and Tameling sued out this writ of error.

Argued by Mr. John A. Wills for the plaintiff in error, and by ''Mr. Matt. H. Carpenter and Mr. W. W. MacFarland'' for the defendant in error.

MR. JUSTICE DAVIS delivered t e opinion of the court.

The determination of this case depends upon the effect of the act of Congress 'to confirm certain private land claims in the Territory of New Mexico,' approved June 21, 1860. 12 Stat. 71. Did the act confirm the Sangre de Cristo grant to the extent of the exterior boundaries of the claim? If it did, the judgment below must be affirmed. If it did not, inasmuch as no specific portion of the land within those boundaries was severed from the remainder and confirmed to the claimant, the plaintiff below, who derives title under him, has not shown a right to the demanded premises, and the judgment must be reversed.

We have repeatedly held that individual rights of property, in the territory acquired by the United States from Mexico, were not affected by the change of sovereignty and jurisdiction. They were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the government to vest in him a perfect title. The duty of providing the mode of securing them and fulfilling the obligations which the treaty of cession imposed, was within the appropriate province of the political department of the government. In discharging it, Congress required that all titles to real property in California, whether inchoate or consummate, should undergo judicial examination. If a party failed to avail himself within a prescribed time of the provisions of the act of March 3, 1851, and prosecute his claim thereunder, it was completely barred, and the land covered by it reverted to the public domain. The California land-claims disposed of in this court were asserted in a direct proceeding against the United States. It became our duty, as it had been that of the board of commissioners and of the District Court, to decide on their validity, upon the documentary and other evidence incorporated in the record. We were required to be governed by treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim was derived, the principles of equity, and the decisions of this court, as far as they were applicable. Were we now exercising appellate jurisdiction over the proceedings of a court or officer specially appointed to determine the validity and extent of the grant in question, it would be our duty to either affirm or reverse the decision, pursuant to the rules prescribed for our guidance. But Congress legislated otherwise for the adjustment of land-claims in New Mexico. By the eighth section of the act of 1854, 10 Stat. 308, the duty of ascertaining their origin, nature, character, and extent was expressly enjoined upon the surveyor-general of that Territory. He was empowered for that purpose to issue notices, summon witnesses, administer oaths, and perform all necessary acts in the premises. He was directed to make a full report, with his decision, as to the validity or invalidity of each claim, under the laws, usages, and customs of the country before its cession to the United States. That report, according to a form to be prescribed by the Secretary of the Interior, was to be laid before Congress for such action as might be deemed just and proper.

It will thus be seen that the modes for the determination of land-claims of Spanish or Mexican origin were radically different. Where they embraced lands in California, a procedure, essentially judicial in its character, was provided, with the right of ultimate appeal by either the claimant or the United States to this court. No jurisdiction over such claims in New Mexico was conferred upon the courts; but the surveyor-general, in the exercise of the authority with which he was invested, decides them in the first instance. The final action on each claim reserved to Congress, is, of course, conclusive, and therefore not subject to review in this or any other forum.

It is obviously not the duty of this court to sit in judgment upon either the recital of matters of fact by the surveyor-general, or h § decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration and action. We need only say that he distinctly sets forth that Luis Lee and Narciso Beaubien, Sept. 27, 1843, petitioned the then civil and military governor of New Mexico 'for a grant of land in what is now the county of Taos, embracing the Costilla, Culebra, and Trinchera Rivers, including the Rito of the Indians, and Sangre de Cristo to its junction with the Del Norte River;' that the petition was referred by the governor to the prefect, with instructions to give the possession asked for by the petitioners; that they were put in possession with the boundaries contained in the petition, 'vesting in them, their children and successors, a title in fee to said lands.' After stating that, by the death of one of the grantees, his heir-at-law, Charles Beaubien, inherited the undivided half of the land, and that he acquired the remainder from the administrator of the other grantee, the surveyor-general reaches the conclusion that the grant is a good and valid one, and that a legal title vests in Charles Beaubien to the land embraced within the limits contained in the petition. The grant was approved, and recommended for confirmation by Congress.

Congress acted upon the claim 'as recommended for confirmation by the surveyor-general.' The confirmation being absolute and unconditional, without any limitation as to quantity, we must regard it as effectual and operative for the entire tract.

The plaintiff in error insists that, under the Mexican colonization laws in force when the grant was made, not more than eleven square leagues for each petitioner could be lawfully granted. As there were in the present instance but two petitioners, and the land within the boundaries in question is largely in excess of that quantity, the invalidity of the grant has been earnestly and elaborately pressed upon our attention. This was matter for the consideration of Congress; and we deem ourselves concluded by the action of that body. The phraseology of the confirmatory act is, in our opinion, explicit and unequivocal. In Ryan et al. v. Carter et al., supra, p. 78, we recognized and enforced, as the settled doctrine of this court, that such an act passes the title of the United States as effectually as if it contained in terms a grant de novo, and that a grant may be made by a law as well as by a patent pursuant to law.

Judgment affirmed.


text: Talk:Tameling v. United States Freehold and Emigration Company/Opinion of the Court


text: Hervey v. Rhode Island Locomotive Works

title: Hervey v. Rhode Island Locomotive Works


text: Talk:Hervey v. Rhode Island Locomotive Works


text:
Hervey v. Rhode Island Locomotive Works/Opinion of the Court

The courts look to the purpose of the parties; and, if that purpose be to give the vendor a lien on the property until payment in full of the purchase-money, it is liable to be defeated by creditors of the vendee who is in possession of it.

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

On the twenty-first day of August, 1871, the Rhode Island Locomotive Works entered into a contract with J. Edwin Conant & Co., as follows:--

'This agreement, made this twenty-first day of August, 1871, by and between the Rhode Island Locomotive Works of Providence, R. I., party of the first part, and J. Edwin Conant & Co., contractors for the Chicago & Illinois Southern Railroad Co., party of the second part, witnesseth:

'That whereas the said party of the first part is the owner of one locomotive-engine and tender complete, named Alfred N. Smyer, No. 3; and whereas the said party of the second part is desirous of using and eventually purchasing the same: now, therefore, in consideration of the sum of one dollar to the said party of the first part by the said party of the second part in hand paid, the receipt whereof is hereby acknowledged, and in consideration of the covenants and agreements hereinafter contained, the said party of the first part agrees to let and lease, and hereby does let and lease, to the said party of the second part, and the said party of the second part ag ees to have and take from the said party of the first part, the said one locomotive-engine and tender, with the right to place the same upon its railroad, and to use the same in the usual manner in transacting the business of the said railroad; and in consideration thereof the said party of the second part hereby covenants and agrees to pay to the said party of the first part for the use and rent of the same the sum of $12,093.96 in notes, as follows:--

One note due Feb. 24, 1872........ 3,580.

One note due May 24, 1872......... 3,647.

One note due Aug. 24, 1872........ 3,715.

-

$12,093.

'And the said party of the second part hereby further covenants and agrees, during the time hereby demised, to keep and maintain the said one locomotive-engine and tender in as good condition as it now is, reasonable and ordinary wear and tear excepted; but it is understood and agreed, that any injury by collision, by running off the track, or by fire, or by destruction from any cause, is not to be considered reasonable and ordinary wear and tear.

'And the said party of the first part, in consideration of the foregoing, further covenants and agrees, that in case said party of the second part shall pay the said notes promptly, as hereinbefore set forth, upon payment of the last-mentioned note, viz., $3,715.90, and all renewals of same, it will grant, sell, assign, transfer, and convey to the said party of the second part the said one locomotive-engine and tender in the condition it then is, to have and to hold the same to the said party of the second part, its legal representatives, successors, and assigns for ever. And the said party of the second part further covenants and agrees, that if it shall fail to make any of the said payments when due, then the said party of the first part shall be at liberty, and it shall be lawful for it, to enter upon and take possession of the said one locomotive-engine and tender, and to that end to enter upon the road and other property of said party of the second part.

'And the said party of the second part further covenants and agrees, that, in case of any default on its part in any of the payments, as hereinbefore provided, it will, within thirty days thereafter, deliver the said one locomotive-engine and tender to the said party of the first part.

'And the said party of the first part shall thereafter, upon thirty days' written notice to the said party of the second part of the times and place of sale, proceed to sell the said one locomotive-engine and tender, and shall apply the proceeds of such sales, first, to the payment of the expenses of the sale; second, to the payment of any balance then due, or thereafter to become due, for or on account of the rent, as hereinbefore provided; and, if after these payments there shall remain any balance of the proceeds of the sale, the same shall be paid to the said party of the second part.

'And the said party of the second part further covenants and agrees, that they will not in any way exercise or claim the right to release, incumber, or in any way dispose of said one locomotive-engine and tender, or employ them during the term of this lease in any other way than in the service of J. Edwin Conant & Co., contractors for the Chicago & Illinois Southern Railroad Company, or in any way or manner interfere with the said party of the first part in repossessing and retaking said one locomotive-engine and tender, should default be made in any of the hereinbefore provided for payments, but the full legal right and title of said one locomotive-engine and tender shall and does remain in the Rhode Island Locomotive Works, as fully, to all intents and purposes, as though the lease had not been made.

'And the said party of the first part hereby covenants and agrees, that if the said party of the second part shall and do well and truly make each of the payments aforesaid at the times hereinbefore specified, without any let or hindrance or delay whatever as to any or either of said payments, that upon the last-mentioned payment, viz., $3,715.90, and all renewals being made, as well as each and all of the other said payments, the said party of the first part will and shall convey the said one locomotive-engine and tender to the said party of the second part, and give them a full acquittance for the same, and that the title thereto shall ipso facto, by the completion of such payment, vest in the said J. Edwin Conant & Co., contractors for the Chicago & Illinois Southern Railroad Company.

'In witness whereof, the parties hereto have hereunto set the corporate seal, by the respective officers duly authorized.

'RHODE ISLAND LOCOMOTIVE WORKS.

'EDW. P. MASON, Treasurer.

'J. EDWIN CONANT & Co., ''Contractors C. & Ill. So. R.R.'''

LOCOMOTIVE WORKS, PROVIDENCE, R. I.

Which agreement was indorsed as follows:--

'STATE OF ILLINOIS, CUMBERLAND COUNTY:--

'I hereby certify that the within instrument was filed in this office for record on the twenty-eighth day of January, 1873, at two o'clock P.M., and duly recorded in book D of mortgages, page 485, and examined.

'ANDREW CARSON,

'Clerk and Ex-Officio Recorder.'

It was admitted that the agreement was executed at its place of business, in Rhode Island, by the Rhode Island Locomotive Works, and in New York by Conant & Co., where they resided; that Conant & Co. paid no part of the principal of the purchase-money, except the amount admitted on the face of the agreement; and that they obtained possession of said engine and its tender under said agreement, and took it to Illinois.

On the 28th of October, 1871, by virtue of a writ of attachment issued out of the Court of Common Pleas of Coles County, Illinois, in an action of assumpsit wherein Conant & Co. were defendants, the sheriff seized the Smyser as their property, and sold it to the plaintiff in error, Hervey.

On the 29th January, 1873, the marshal of the United States for the southern district of Illinois took possession of the Smyser under a writ of replevin sued out of the Circuit Court of the United States for that district by the Rhode Island Locomotive Works against Hervey, and the Paris and Decatur Railroad Company.

At the trial, the court below found a special verdict as follows:--

That the lease offered in evidence by plaintiff was a subsisting executory contract between the parties thereto.

That the plaintiff had not parted with the legal possession of the locomotive in controversy.

That the plaintiff had never received payment for the locomotive in controversy other or further than as stated in the face of their lease.

That the plaintiff delivered to Conant & Co. the said locomotive to be used by them in Illinois, and that said locomotive was so used in that State.

That the possession of Conant & Co. was the possession of the plaintiff.

That the defendant obtained possession of the locomotive in controversy in due form of law, under execution, levy, and sale, in pursuance of a valid judgment obtained in a court of competent jurisdiction, after due service upon the parties thereto in a suit against Conant & Co.

That a sale under said execution was, by an officer duly authorized thereto, made to the defendant, Robert G. Hervey, and that payment was made, in the full amount bid at said sale, by said Hervey to said officer, and that the said officer delivered the said locomotive to said Hervey.

That, subsequent to such sale and delivery by said officer to said Hervey, plaintiffs placed upon record, in the proper recorder's office in the county of Coles, in the State of Illinois, where the said property was held, the said lease, in the chattel-mortgage records in said county.

That such recording of said lease was more than one year subsequent to the sale of said locomotive under said execution and levy.

That said sale by said officer to said Hervey was under a special execution, as shown by the public records of said Coles County.

Wherefore the court found for the pl intiff, and gave judgment accordingly.

The defendants thereupon brought the case here.

Mr. Robert G. Ingersoll, for the plaintiffs in error.

1. The contract between the defendant in error and Conant & Co. is subject to the laws of Illinois. An agreement that the vendor of personal property shall, after possession is delivered to the vendee, retain the ownership until the payment of the purchase-money, is void as to the creditors of the vendee. McCormick v. Hadden, 37 Ill. 370; Ketchum v. Watson, 24 id. 591. Thompson v. Yeck, 21 id. 73; Murch v. Wright, 46 id. 487.

2. The lien of the vendor can only be preserved by his compliance with the Chattel-Mortgage Act.

Mr. H. S. Greene and Mr. D. T. Littler, contra.

The Chattel-Mortgage Act has nothing whatever to do with the case. The portions of that act which require the recording of the instrument within less than five years refer solely to cases in which a party, having once been the owner of chattels, seeks to sell or pledge them and yet retain possession.

The only statutory provisions which relate to cases like this are directly against the position assumed by plaintiff in error.

They are found in the Statute of Frauds, and are intended to cover cases in which possession of chattels has been delivered to one who never had the title, while the ownership remains in another. Peters v. Smith, 42 Ill. 416.

Defendant in error resided in Rhode Island; Conant & Co. in New York. The construction and effect of the contract depended on the laws of those States, as it was made there. If they, when applied to the contract, did not vest the title in Conant & Co., but held them to be mere bailees, that relation followed them to Illinois, unless some positive provision of local law changed their ''status. Black v. Zacharie'', 3 How. 483.

There was no rule of Illinois law which operated to divest the title of defendant in error. In fact, the question at issue is one of commercial law. Such contracts are almost universal in this country.

An examination of Murch v. Wright, 46 Ill. 488, relied upon by the other side, will show that the rule contended for was not a settled one in Illinois. The very cases cited by the court show that there was not a full consideration of the question. In one of them,-Jennings v. Sage, 13 Ill. 613,-the court makes the very distinction for which we now contend. It says, 'This was a case of fraudulent sale, of possession obtained fraudulently, in a case where the vendor intended to have the title pass with the possession. It was not a conditional sale where possession is given but title is not intended to pass with possession. It is insisted that as between plaintiff and Jennings, the law is that as between them, both parties being innocent, the loss should fall on the owners who, by intrusting Van Valin with the possession, enabled him to commit a fraud. This is unquestionably the law where owners with the intention of sale have voluntarily parted with possession. But this principle does not apply to sales on condition, and where the original owners have never consented to the transfer of the property.'

Bundage v. Camp, 21 Ill. 330, is also relied upon in Murch v. Wright, as authority for the conclusion there reached. Yet in that case the court say, 'This is a case where the plaintiff, with the intention of selling, or changing the title, parted with the possession, relying on the vendee to give a second note at a future day, and is like in its principle to the case of 13 id. 613.'

In McCormick v. Hadden, 37 Ill. 370, horses had been sold by one brother to another, with the agreement that a chattel mortgage should be made by the latter for the purchase-money. The mortgage was not made. The vendee, after the lapse of a year, mortgaged the horses to a third party. The very fact that he was to execute a mortgage was evidence that the title was intended to pass to him from the begin ing; and it might well be held that the vendor, by not taking a mortgage for such a length of time, had waived the condition, and looked to the credit of the vendee for the purchase-money.

Ketchum v. Watson, 24 Ill. 591, does not support the doctrine of Murch v. Wright. An absolute sale was there made with delivery. The purchaser could not pay, so a resale was made, but not a redelivery. The property, as to third parties, was held to remain in the first purchaser.

It is thus shown that the rule was not settled in Illinois at the time when this agreement was made; for Murch v. Wright, ill considered as it was, and in conflict with the very cases relied upon to support it, cannot be regarded as settling the law. It requires something more than this to change the relations of parties lawfully created in other States. The defendant in error, residing in Rhode Island, cannot be held guilty of violating the policy of Illinois, with respect to a mere rule of commercial law. This court, while paying all respect to State courts as to matters peculiarly within their jurisdiction, will settle the principles of the common law and of the law of commerce for itself. As to the effect of the conditional sale being as we contend, the weight of authority is overwhelming.

Chancellor Kent says, vol. ii. p. 497, 'When there is a condition precedent attached to a contract of sale and delivery, the property does not vest in the vendee on delivery until he perform the condition.'

Hilliard on Sales lays down the same rule, vol. iii. sect. 2.

It is admitted by the Supreme Court of Illinois that such an agreement is good between the parties. The authorities are quite as numerous that it is good against everybody. Patton v. McCave, 15 B. Mon. (Ky.) 555; Tomlinsons v. Collins, 20 Conn. 364, 2 Pick. (Mass.) 512, and 4 id. 449; Reed v. Upton, 9 id. 156; Haven v. Emory, 33 N. H. 66; Sargeant v. Gile, 8 id. 325; Porter v. Pettingall, 12 id. 299; Buckmaster v. Smith, 22 Vt. 203; armington v. Smith, 22 Vt. 203; Armington v. Taylor, 2 Hill (N. Y.) 326; Little v. Page, 44 Mo. 412; Forbes v. Marsh, 15 Conn. 384; Ballard v. Boguett, 47 Barb. 648; Whitney v. Eaton, 15 Gray (Mass.) 225; Bucher v. Hall, 15 Iowa, 277; Humble v. Ackly, 12 id. 27; 1 Parsons on Contracts, 441; Story on Sales, sect. 313; Sambling v. Read, 1 Miss. 281; Copeland v. Barrett, 4 Wash. 594; Gayler v. Dyer, 5 Cranch, C. C. 461; In re Lyon, 4 Chicago Legal News, 421.

MR. JUSTICE DAVIS delivered the opinion of the court.

It was decided by this court, in Green v. Van Buskirk, 5 Wall. 307, 7 id. 139, that the liability of property to be sold under legal process, issuing from the courts of the State where it is situated, must be determined by the law there, rather than that of the jurisdiction where the owner lives. These decisions rest on the ground that every State has the right to regulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides. He has no absolute right to have the transfer of property, lawful in that jurisdiction, respected in the courts of the State where it is found, and it is only on a principle of comity that it is ever allowed. But this principle yields when the laws and policy of the latter State conflict with those of the former.

The policy of the law in Illinois will not permit the owner of personal property to sell it, either absolutely or conditionally, and still continue in possession of it. Possession is one of the strongest evidences of title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by statute. The courts of Illinois say that to suffer without notice to the world the real owners ip to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and in this way works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another, to whom it is delivered, if desirous of preserving a lien on it, must comply with the provisions of the Chattel-Mortgage Act. R. S. Ill. 1874, 711, 712. It requires that the instrument of conveyance, if it have the effect to preserve a mortgage or lien on the property, must be recorded, whether the party to it be a resident or non-resident of the State. If this be not done, the instrument, so far as third persons are concerned, has no validity.

Secret liens which treat the vendor of personal property, who has delivered possession of it to the purchaser, as the owner until the payment of the purchase-money, cannot be maintained in Illinois. They are held to be constructively fraudulent as to creditors, and the property, so far as their rights are concerned, is considered as belonging to the purchaser holding the possession. McCormick v. Hadden, 37 Ill. 370; Ketchum v. Watson, 24 id. 591. Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose, rather than to the name given to it by the parties. If that purpose be to give the vendor a lien on the property until payment in full of the purchase-money, it is liable to be defeated by creditors of the purchaser who is in possession of it. This was held in Murch v. Wright, 46 id. 488. In that case the purchaser took from the seller a piano at the price of $700. He paid $50 down, which was called rent for the first month, and agreed to pay, as rent, $50 each month, until the whole amount should be paid, when he was to own the piano. The court held, 'that it was a mere subterfuge to call this transaction a lease,' and that it was a conditional sale, with the right of rescission on the part of the vendor, in case the purchaser should fail in payment of his instalments,-a contract legal and valid as between the parties, but subjecting the vendor to lose his lien in case the property, while in possession of the purchaser, should be levied upon by his creditors. That case and the one at bar are alike in all essential particulars.

The engine Smyser, the only subject of controversy in this suit, was sold on condition that each and all of the instalments should be regularly paid, with a right of rescission on the part of the vendor in case of default in any of the specified payments.

It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent; but this form was used to cover the real transaction, as much so as was the rent of the piano in Murch v. Wright, supra. There the price of the piano was to be paid in thirteen months, and here, that of the engine, $12,093.96, in one year. It was evidently not the intention that this large sum should be paid as rent for the mere use of the engine for one year. If so, why agree to sell and convey the full title on the payment of the last instalment? In both cases, the stipulated price of the property was to be paid in short instalments, and no words employed by the parties can have the effect of changing the true nature of the contracts. (In the case at bar the agreement contemplated that the engine should be removed to the State of Illinois, and used by Conant & Co., in the prosecution of their business as constructors of a railroad. It was accordingly taken there and put to the use for which it was purchased; but while in the possession of Conant & Co., who exercised complete ownership over it, it was seized and sold, in the local courts of Illinois, as their property.) These proceedings were valid in the jurisdiction where they took place, and must be respected by the Federal tribunals.

The Rhode Island Locomotive Works took the risk of losing its lien in case the property, while in the possession of Conant & Co., should be levied on by their creditors, and it cannot complain, as the laws of Illinois pointed out a way to preserve and perfect its lien.

By stipulation the judgment of the court below is affirmed as to the locomotive Olney, No. 1.

As to the locomotive and tender called Alfred N. Smyser, No. 3,

Judgment reversed.

NOTE.-Indianapolis, Bloomington, and Western Railway Company v. Rhode Island Locomotive Works, error to the Circuit Court of the United States for the Southern District of Illinois, was argued by the counsel who appeared in the preceding case. For the reasons there given, the judgment was reversed.


text: Talk:Hervey v. Rhode Island Locomotive Works/Opinion of the Court


text:
Kibbe v. Ditto

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. W. C. Goudy for the plaintiff in error, and by Mr. T. G. Frost for the defendants in error.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Kibbe v. Ditto


text: Talk:Kibbe v. Ditto

title: Talk:Kibbe v. Ditto


text:
Kibbe v. Ditto/Opinion of the Court

The defendants in this action of ejectment, which was commenced March 20, 1872, for a quarter-section of land in Mercer County, Illinois, pleaded not guilty. A verdict and a judgment were rendered in their favor. The plaintiff sued out this writ of error.

William M. O'Hara, the owner in fee of the land, died intestate in the summer of 1821, leaving a widow, who outlived him less than a year, and four children, three of whom died intestate. Helen, their surviving sister, inherited their respective interests. She intermarried, Sept. 23, 1840, with Abram D. Harrel, who died Dec. 16, 1871. Said Abram and Helen, by deed executed May 2, 1868, conveyed the land to the plaintiff, who thus showed a clear prima facie right to recover.

By a stipulation of the parties, entered of record in the court below, it is admitted that the land was vacant and unoccupied prior to December, 1857, and that ever since that date the defendants and their grantors have been in the possession of it under color of title, and paid all the taxes, so as to bring them within the limitation of 1839; that said possession has been by actual residence on the land, if title deducible of record is produced to accompany said possession, so as to make the limitation under the act of 1835.

The defendants, to show color of title, put in evidence a deed for the land executed to them June 12, 1857, by Harding and Matthews.

Were Abram D. Harrel living, there can be no question that the facts set forth in the stipulation would be an absolute bar to a recovery. The Supreme Court of Illinois ruled that an estate held by the husband jure uxoris was a freehold, subject to the same incidents as that by the curtesy initiate, and governed in the same manner and to the same extent by the Statute of Limitations. Kibbie v. Williams, 48 Ill. 30. The earlier case of Shortal v. Hinckley et al., 31 id. 219, decides that a ten ant by the curtesy initiate has a vested legal estate distinct from that of his wife, and that, if his right as such tenant be barred by the Statute of Limitations, ejectment by the grantees of himself and wife could not in his lifetime be maintained. We are informed by the learned counsel for the plaintiff that the court below held that a former suit, brought there for the demanded premises when Mr. Harrel was living, would not lie.

As the wife's right of possession did not accrue until after the determination of the estate of her husband, it was not tolled until the conditions, prescribed as a bar to her recovery, had occurred after his death. Under the statute of 1839, acts of Illinois, 1838-39, 266, a person having such a continuous possession under color of title, as is here admitted, and paying all taxes upon the land, shall be held to be the legal owner of it to the extent and according to the tenor of his paper title; but that provision does not extend to a feme covert, if within three years after the termination of her disability she shall commence an action for the recovery of the land. Conceding to the grantee of husband and wife the same period after the determination of the coverture for bringing suit as was accorded to her, it is evident, in view of these rulings, that the lapse of time would not in this case defeat a recovery.

Such was the acknowledged limitation before the passage of the act of the general assembly of Illinois, entitled, 'An Act to protect married women in their separate property.' I aws of 1861, 143. It provides 'that all property, both real and personal, belonging to any married woman, as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman, during coverture, acquires in good faith from any person other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her marriage, be and remain during coverture her sole and separate property, under her sole control, and be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.'

These provisions were considered in Emerson v. Clayton, 32 Ill. 493. A married woman, in her own name and without joining her husband, brought replevin for certain chattels which she claimed as her own property. The defendant pleaded in abatement the coverture of the plaintiff at the time of the commencement of the suit. She replied that the chattels sued for were, during the coverture, acquired in good faith from persons other than her husband, with her own money and in her own right, and as such remained her separate property under her sole control, by virtue of the act of Feb. 21, 1861. The judgment below, sustaining a demurrer to the replication, was reversed, with instructions to overrule the demurrer and give the defendant leave to take issue, should he desire to do so. Mr. Justice Breese, in delivering the opinion of the Supreme Court, remarks, that a feme covert could not sue alone for her own property, or for the recovery of any of her rights at common law, as it vested her personal estate in her husband, and gave him absolute dominion over it; but that by the act she must alone sue for an invasion of the rights which it conferred, and must 'be considered a feme sole in regard to her estate of every sort owned by her before marriage, or which she may acquire during coverture in good faith from any person not her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof.' 'The right of 'sole control' over the separate property of the wife by her necessarily confers the power to do whatever is necessary to the effectual assertion and maintenance of that right.'

That case involved merely the ownership of personal chattels. The act makes no distinction whatever as to the species of property, and it would seem to be a necessary inference, from the reasoning of the learned judge, that a married woman has a complete and absolute right to sue in her own name to recover her lands in the wrongful possession of another.

The decision is silent as to the property acquired prior to 1861 by a woman then married; but in Rose v. Sanderson, 38 id. 247, and Cole v. Riper, 44 id. 347, the statute was construed as not applying to an estate in the lands of the wife which was vested in the husband at the date of its passage. Noble v. McFarland, 51 id. 226, recognizes the same doctrine, and affirms that, in regard to such lands, the time within which the wife must commence her action after the removal of her disability does not begin to run until after the death of her husband. The same court held, in Beach v. Miller, id. 206, that, where land was conveyed to the wife after the pa sage of the act, the husband's right to the curtesy was contingent, and that she could sue in her own name, when her rights thereto were affected; and in Morrison et al. v. Norman et al., 47 id. 477, that the act did not so far remove the disabilities of coverture as to take married women out of the saving clause of the Statute of Limitations.

The effect of that act was recently considered by that court in a case presenting the following facts: Amos Haskins purchased a tract of land, on the twenty-seventh day of October, 1849, of one Hall, for $140, payable as follows: $50 in one year, $50 in two years, and $40 in three years, from the date of the purchase, for which he gave his promissory notes. He received a bond from Hall, covenanting, on the payment of them, to convey the property, and entered into possession of it. His son obtained $35 or $40 for one month of one Walrod, to whom he, in the name of said Amos, assigned the bond as security. This, with other money, was used to pay the first note, and the interest on the remaining ones. Amos Haskins died in November, 1850. Walrod, not having been paid the amount loaned, presented, as assignee, the bond to Hall, from whom, on the 19th of that month, on making the deferred payments, he received a deed, which he put on record the day of its date, entered upon the land, made improvements, and paid the taxes thereon.

A bill was filed against Walrod by the heirs-at-law of Amos Haskins, on the 20th of January, 1869, to obtain their rights in the premises. The court said that the bar to a recovery of the possession of the land by an action at law was complete twelve years before the commencement of the suit, and that a court of equity, following the analogies of the law, should refuse the relief sought.

At the time Walrod went into possession of the land, three of the complainants were under the disability of coverture, and continued to be so when the bill was filed. It was insisted that, as to them, the statute did not run, and that no laches could be imputed. The court declared, that, by the provisions of the act in question, the wife had the entire and sole control over her real and personal property, and that, should her lands be occupied adversely, she could bring ejectment,-use her own money to pay taxes, and thus prevent an occupant from holding possession and paying taxes, until possession and payment would ripen into a bar to a recovery. 'It is true,' says the court, 'that the act of 1861 does not purport to repeal the saving clause in the Statute of Limitations; but it is manifest that a reasonable construction of the language used, in connection with the scope, purpose, and object of the statute, produces this result.' 'While the saving clause in the Statute of Limitations is not mentioned in the act of 1861, yet the powers conferred by the latter act so completely annihilate the existence of every reason which led to the passage of the former act, protecting a married woman from the running of the Statute of Limitations, that it would be absurd to hold that the two acts could stand together.' Emerson v. Clayton was cited and approved, and any expressions in Noble v. McFarland and other cases, which conflict with the opinion, were modified by the construction it gave to the act.

It is, therefore, clear that a woman who marries after the passage of the act in question is not within the saving clause of the Statute of Limitations, as against a party in the adverse possession of lands whereof she was seised at the time of her marriage, or which she subsequently acquires in the mode and manner mentioned in the act. As to the lands of which a woman, married at the date of the act, was previously seised, the limitation begins to run against her after the lapse of time barred the husband's right to recover them. The court uses this language: 'When, therefore, the life-estate, which the husband had acquired by virtue of the marriage, was terminated by operation of the Statute of Limitations, and the act of 1861 removed the disability of coverture of the complainants, they were then bound to bring their action within seven years, or their right or title would be barred. This the complainants failed to do, but permitted the defendant to remain upon the land undisturbed for more than seven years after the passage of the act of 1861. By non-action on their part they have lost their rights. They are not protected by the saving clause of the statute.'

Castner et al. v. Walrod, in which these views are announced, was decided by the Supreme Court of Illinois, Jan. 30, 1875. It was, on a petition for rehearing, reaffirmed in an elaborate opinion, filed Jan. 31, 1877.

Applying them to this case, it follows that the life-estate of Abram D. Harrel was, in December, 1864, extinguished by the operation of the statute. His wife's right of entry was then absolutely vested, and, notwithstanding her coverture, was completely barred in 1871. The plaintiff claiming under her is, therefore, not entitled to maintain this suit.

It may be proper to add, that the defendants put in evidence a paper writing, purporting to be a certified copy of a mortgage of the land in controversy by said William O'Hara and his wife, bearing date September, 1820, to John P. Cabanne; and the record of certain proceedings of the Circuit Court of Pike County, within the then limits of which the land was situate, showing that the mortgagee filed his bill of foreclosure April 23, 1822, the first day of the term, against Susan O'Hara, the widow, and others, children and heirs of William M. O'Hara; an order of publication against defendants as non-residents; a decree of foreclosure; the appointment of a commissioner to make sale of the mortgaged premises; his report; the order confirming his doings in the premises; his acknowledgment of the deed to said John P. Cabanne, the purchaser, dated Feb. 20, 1823; and the approval by the court of said deed. The defendants proved that Cabanne died in 1842, leaving children and grandchildren, a part of whom conveyed by deed, dated April 1, 1861, five undivided sevenths of the demanded premises to one Nettleton, who conveyed by way of quitclaim to the defendants.

Various questions arising upon this evidence,-the jurisdiction of the Pike Circuit Court, the validity of its decree, and the charge of the court below upon these and other matters involved,-have been argued at great length, and with marked ability. We do not consider it necessary to express any opinion upon them. Error in regard to them, if any there be, would be of no avail to the plaintiff. The unreported case we have last cited establishes a rule of property in Illinois, which binds the courts of the United States, and presents an insuperable bar to his recovery.

Judgment affirmed.

title: Kibbe v. Ditto/Opinion of the Court


text: Talk:Kibbe v. Ditto/Opinion of the Court


text:
Wheeler v. Sedgwick

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

This was an action of assumpsit by the defendant in error, assignee in bankruptcy of Frederick S.C.omstock and James M. Wheeler, formerly partners engaged in business as stockbrokers under the firm name of F. S.C.omstock & Co., against George M. Wheeler, to recover certain moneys claimed to be due on account of stock operations of said firm on his account. The case below turned upon the question whether Comstock & Co. had authority from Wheeler to make certain purchases and sales on his account, and, if not, whether he subsequently ratified them.

Among other items in dispute was an account headed 'G. M. W. Chicago and North-western, $6,125.62,' which the bankrupt Comstock testified was one-half of a balance due the firm in a transaction in which he and Wheeler were jointly interested. The plaintiff below asked this witness, 'What authority, if any, had you from George M. Wheeler to make purchases and sales of North-western stock in which you and he should be jointly interested?' The defendant objected to this question, and the witness did not answer it. The witness further testified, in answer to other questions, to which no objection was made, that the firm of Comstock & Co. had certain side transactions in North-western stock for and on account of George M. Wheeler, and by his authority; that there was an agreement between witness and defendant, of which witness's partner was ignorant; that, if the account showed a profit, witness would take half of the profit when they closed it up, and, if the account showed a loss, witness would stand one-half of the loss; that those transactions extended to Jan. 31, 1868, and resulted in a loss of $12,251.23, one-half of which was transferred to defendant's individual accout, and the other one-half in like manner to witness's account. A witness was thereupon called by the plaintiff, who, without objection, furnished a statement, including the 'G. M. W., Chicago and North-western' account, and showing, with interest on the several items, a net balance of $26,458.90, due from the defendant.

After the testimony was closed, the defendant asked the court to direct a verdict for the defendant, on the ground that there was no proof upon which to maintain the action; but the court refused so to direct, and thereupon charged, substantially, that if the jury found that Comstock & Co. had authority from the defendant to buy and sell the stocks referred to in the testimony, or, if they had no such authority, that the purchases and sales were subsequently ratified by the defendant, then the plaintiff was entitled to recover, and that the amount of that recovery should be $26,458.90.

The defendant thereupon excepted to the ruling that the plaintiff was entitled to recover $26,458.90.

The jury found a verdict for that amount in favor of the plaintiff, and judgment was rendered thereon. The defendant thereupon sued out this writ, and assigns for error, among others, the admission in evidence of the account upon which the defendant below and one of the bankrupts were jointly liable, and the including of one-half of the amount thereof in the verdict of the jury.

Argued by Mr. Thomas M. Wheeler for the plaintiff in error, and by Mr. F. N. Bangs, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Wheeler v. Sedgwick


text: Talk:Wheeler v. Sedgwick

title: Talk:Wheeler v. Sedgwick


text:
Wheeler v. Sedgwick/Opinion of the Court

We find no error in this record. To say the least, there was some evidence before the jury tending to prove the items of the account upon which the suit was brought, and the court, therefore, properly refused to instruct the jury to find for the defendant.

The jury were not instructed that the plaintiff was entitled to recover the amount of $26,458.90 at all events, but only in case all the questions in dispute were found in his favor. That there was no controversy as to the amount of the recover, if the other questions were settled in favor of the plaintiff, is evident from the fact that a witness was called, who, without objection, furnished the jury a calculation of interest upon the several items of the account as stated. No exception was taken to the charge as given upon the material points in litigation between the parties.

The attention of the court below was not called to the particular objection now taken to the recovery of one-half the amount shown to be due upon the account headed, 'G. M. W. Chic. and N. W. account,' to wit, that it was a joint account of the defendant and one of the bankrupts, and that the defendant could not be sued upon it alone. This being the case, it is too late to make it now. The exception, as it appears in the record, is 'to the ruling that the plaintiff was entitled to recover $26,458.90.' If it was desired to exclude the item of $6,125.62 because of the non-joinder of another party originally interested in that part of the account, the point should have been distinctly and specifically made, and an appropriate exception taken upon the record. The evidence to prove this item in the account was not objected to. The question put to the witness Comstock, which was objected to, was not answered.

We see nothing in the exceptions to the rulings of the court upon the admissibility of testimony which requires particular mention, as we are satisfied of their correctness.

Judgment affirmed.


text: Talk:Wheeler v. Sedgwick/Opinion of the Court


text:
Hoadley v. San Francisco

APPEAL from the Circuit Court of the United States for the District of California.

The facts are stated in the opinion of the court.

Mr. S. W. Holladay for the plaintiff in error.

Mr. Delos Lake, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Hoadley v. San Francisco


text: Talk:Hoadley v. San Francisco

title: Talk:Hoadley v. San Francisco


text:
Hoadley v. San Francisco/Opinion of the Court

This action was commenced by Hoadley, the appellant, a citizen of California, Jan. 5, 1870, in the District Court for the twelfth judicial district of that State, to quiet his title to certain of the pueblo lands of the city of San Francisco, granted to that city by the act of Congress passed July 1, 1864, 13 Stat. 333, sect. 5, of which, so far as it is material for the determination of this cause, is as follows:--

'That all the right and title of the United States to the lands within the corporate limits of the city of San Francisco. . . are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city, ratified by an act of the legislature of the said State, approved on the 11th of March, 1858. . . .'

He claimed as one of the beneficiaries under this grant by the operation of the city ordinances referred to. The question to be determined is whether he was so in fact.

Sect. 2 of the act of March 3, 1875, 18 Stat. 470, is as follows:--

'Any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority,. . . either party may remove said suit to the Circuit Court of the United States for the proper district.'

After the passage of this act, Hoadly removed his suit to the Circuit Court of the United States for the District of California, alleging that it was one arising under the Constitution and laws of the United States. In the Circuit Court he amended his bill, setting forth in detail the particulars of his claim to the benefit of the act of Congress through the city ordinances. To this amended bill the city demurred, assigning for cause, among others, that it did not show that the Circuit Court had jurisdiction. Upon the hearing of this demurrer, the court entered an order remanding the cause to the State court, and from that order the present appeal has been taken.

By sect. 5 of the act of March 3, 1875, 18 Stat. 471, it is provided 'that the order of the Circuit Court dismissing or remanding the cause shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.' This is a modification of the previous legislation upon this subject, under which we held, in Insurance Company v. Comstock, 16 Wall. 270, and Railroad Company v. Wiswall, 23 id. 508, 'that the remedy in such a case was by mandamus to compel action, and not by writ of error to review what has been done.'

We have, therefore, jurisdiction of this appeal, but we are clearly of the opinion that the Circuit Court did not err in remanding the cause. The questions involved did not arise under the laws of the United States, but under the ordinances of the city as ratified by the act of the legislature. The act of Congress operated as a release to the city of all the interest on the United States in the land. The title of the United States was vested in the city. Whether the city took the beneficial interest in the property as well as the legal title depended upon the effect to be given to the act of the legislature and the ordinances, and not upon the act of Congress. The case is precisely the same in principle as it would have been if the city had, previous to the act of Congress, conveyed the land to Hoadley by deed, with covenants of warranty. If in such a case a controversy should arise between Hoadley and the city as to whether or not the title granted to the city inured to his benefit under the warranty, the question would not be as to the effect of the grant from the United States, but as to that of the conveyance from the city. The case would not arise under the laws of the United States, but under the deed and its covenants.

Decree affirmed.


text: Talk:Hoadley v. San Francisco/Opinion of the Court


text:
Pike v. Evans

ERROR to the Circuit Court of the United States for the District of Louisiana.

This is a petitory action brought to recover a certain plaintation in Louisiana. The plaintiff (now defendant in error) claimed the land under an act of donation from her uncle, Ackley Perkins, passed the 5th of September, 1861. Perkins had purchased the land at sheriff's sale made Aug. 3, 1861, under a vendor's lien, and gave a twelvemonth's bond for the purchase-money. One Williams, and William S. Pike, the defendant below (now plaintiff in error), were his sureties on this bond. The bond not being paid, a writ of fieri facias, under the laws of Louisiana, was issued upon it against the goods and lands both of Perkins and his sureties. The sheriff, under and by virtue of this writ, sold the plantation in question on the 6th of January, 1866; and Pike, to save his own property and to protect himself against his liability as surety, became the purchaser, paid the incumbrance, and went into possession on the day of sale. He had been in possession over five years when this action was brought; and, amongst other things, pleaded prescription of one, three, and five years.

On the trial of the cause, the plaintiff having proved the act of donation from her uncle, Ackley Perkins, on which she relied, and the previous purchase of the property by him at sheriff's sale in August, 1861, the defendant gave in evidence the twelvemonth's bond executed by Perkins and his sureties for the purchase-money at said sale, the fieri facias issued thereon in October, 1865, and the sheriff's deed to him dated Jan. 6, 1866, and introduced evidence tending to show that he, the defendant, had been in possession of the property in question for a period of five years, and that he purchased the property at the sheriff's sale; and thereupon he asked the court to charge, that if the jury found that he had been in possession for a period of five years, and that he purchased the same from any person authorized to sell at public action, then any informality connected with or growing out of the sale was cured by the lapse of five years. The court gave the instruction asked, but added, 'If the sheriff did not seize the property, that is an informality which is not cured by possession for five years.' The counsel for the defendant excepted to this modification.

There was a judgment for the plaintiff below, whereupon the defendant sued out this writ of error.

Mr. Thomas J. Durant for the plaintiff in error.

The court below erred in charging the jury as to the effect of the sheriff's failure to seize the property. Walden v. Canfield, 2 Rob. (La.) 472; Drouet v. Rice, id 377; Leduf v. Bailly, 3 La. Ann. 8; Brien v. Sargent, 13 id. 198; Robert v. Brown, 14 id. 598; Budd v. Stenson, 20 id. 573; Woods v. Lee, 21 id. 505 et seq.; Pasiana v. Powell, id. 584.

Mr. George W. Paschal, contra.

The omission of the sheriff to actually seize the property rendered the sale absolutely null and void. There was, therefore, no error in the charge of the court below. Watson v. Bondurant, 21 Wall. 123; Stockton v. Downey, 6 La. Ann. 581; Birch v. Bates, 22 id. 198.

In Morton v. Reynolds, 4 Rob. (La.) 26, it was held that the prescription of five years related to and cured merely irregularities in the advertisements, time, place, and terms of sale occurring after a legal seizure. But informations could not apply to all manner of nullities. The statute is not curative of such.

MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.

title: Pike v. Evans


text: Talk:Pike v. Evans

title: Talk:Pike v. Evans