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Chicago St. Railway Company v. Ross/Opinion of the Court

The plaintiff in the court below is a citizen of Minnesota, and by occupation an engineer on a railway train. The defendant in the court below, the plaintiff in error here, is a railway corporation created under the laws of Wisconsin. This action is brought to recover damages for injuries which the plaintiff sustained while engineer of a freight train by a collision with a gravel train on the sixth of November, 1880. Both trains belonged to the company, and for some years he had been employed as such engineer on its roads. On that day he was in charge of the engine of a regular freight train which left Minneapolis at a quarter past 1 in the morning, its regular schedule time, and had the right of the road over gravel trains, except when otherwise ordered. At the time of the collision, one McClintock was the conductor of the train, and had the entire charge of running it. It was his duty, under the regulations of the company, to show to the engineer all orders which he received with respect to the movements of the train. The regulations in this respect were as follows: 'Conductors must, in all cases, when running by telegraph and special orders, show the same to the engineer of their train before leaving stations where the orders are received. The engineer must read and understand to order before leaving the station. The conductor will have charge and control of the train, and of all persons employed on it, and is responsible for its movements while on the road, except when his directions conflict with these regulations, or involve any risk or hazard, in which case the engineer will also be held responsible.'

When the freight train left Minneapolis on the morning of November 6, 1880, there was coming towards that city from Fort Snelling, by order of the company, over the same road, a gravel train, termed in the complaint a 'wild train;' that is, a train not running on schedule time any regular trips. The conductor, McClintock, was informed by telegram from the train dispatcher of the coming of this gravel train, and ordered to hold the freight train at South Minneapolis until the gravel train arrived. South Minneapolis is between Minneapolis and the place where the collision occurred. The gravel train had been engaged for a week before in hauling in the night gravel to Minneapolis from a pit near Mendota, for the construction by the company of a new and separate line of railroad between St. Paul and Minneapolis, and the freight train had, during this time, been stopped by the conductor, on orders of the train dispatcher, upon side tracks between Minneapolis and St. Paul Junction for the passage of the gravel train. But on the night of November 6, 1880, he neglected to deliver to the plaintiff the order he had received, and after the train started he went into the caboose and there fell asleep. The freight train, of course, did not stop at the station designated, but, continuing at a speed of 15 miles an hour, entered a deep and narrow cut 300 feet in length, through which the road passed at a considerable curve, and on a down grade, when the plaintiff saw on the bank a reflection of the light from the engine of the gravel train, which was approaching from the opposite direction at a speed of five or six miles an hour, and was then within about 100 feet. He at once whistled for brakes and reversed his engine, but a collision almost immediately followed, destroying the engines, damaging the cars of the two trains, causing the death of one person, and inflicting upon the plaintiff severe and permanent injuries, for which he brings this action.

On the trial the conductor of the gravel train testified that at the time of the collision he was under orders to run to South Minneapolis regardless of the plaintiff's train; that having 12 cars loaded with gravel his train stalled before reaching the cut where the collision happened; that he then separated his train in the middle, took six cars to Minnehaha station, went back with the engine for the other six cars, and was coming with them through the cut when the collision occurred; that the gravel train had run in the night about a week, and that when he could reach Minneapolis before the starting time of plaintiff's train he ran without orders, otherwise upon orders, and had met or passed plaintiff's train at the same place about every night during the week.

It is evident from this brief statement that the conductor on each train was guilty of gross negligence. The conductor of the freight train was not only required by the general duty devolving on him as one controlling its movements to give to its engineer such orders as would enable him to avoid collision with other cars, but, as we have seen, he was expressly directed by the regulations of the company, when running by telegraph or special orders, to communicate them to him. Had these regulations been complied with the collision would have been avoided. The conductor of the gravel train allowed it to be so overloaded that its engine was incapable of moving it at one portion of the road before reaching the cut; and when, in consequence, he was obliged to leave half of his cars on the track while he took the others to Minnehaha, he omitted to send forward information of the delay or to put out signals of danger. Having for the week previous passed the freight train at nearly the same place on the road, he must have known that by the delay there was danger of collision. Ordinary prudence, therefore, would have dictated the sending forward of information of his position, or the putting out of danger signals. Had he done either of these things the collision would not have occurred.

The collision having been caused by the gross negligence of the conductors, the question arises whether the company is responsible to the plaintiff for the injuries which that collision inflicted upon him. The general liability of a railroad company for injuries caused by the negligence of its servants to passengers and others not in its service is conceded. It covers all injuries to which they do not contribute. But where injuries befall a servant in its employ, a different principle applies. Having been engaged for the performance of specified services, he takes upon himself the ordinary risks incident thereto. As a consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this exemption is that he has, or in law is supposed to have, them in contemplation when he engaged in the service, and that his compensation is arranged accordingly. He cannot, in reason, complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid. There is also another reason often assigned for this exemption-that of a supposed public policy. It is assumed that the exemption operates as a stimulant to diligence and caution on the part of the servant for his own safety as well as that of his master. Much potency is ascribed to this assumed fact by reference to those cases where diligence and caution on the part of servants constitute the chief protection against accidents. But it may be doubted whether the exemption has the effect thus claimed for it. We have never known parties more willing to subject themselves to dangers of life or limb because, if losing the one, or suffering in the other, damages could be recovered by their representatives or themselves for the loss or injury. The dread of personal injury has always proved sufficient to bring into exercise the vigilance and activity of the servant. But, however this may be, it is indispensable to the employer's exemption from liability to his servant for the consequences of risks thus incurred that he should himself be free from negligence. He must furnish the servant the means and appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result, he is as liable to the servant as he would be to a stranger. In other words, while claiming such exemption he must not himself be guilty of contributory negligence.

When the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is necessarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both in this country and in England, that there is implied in his contract of service in such cases that he takes upon himself the risks arising from the negligence of his fellow-servants while in the same employment, provided always the master is not negligent in their selection or retention, or in furnishing adequate materials and means for the work; and that if injuries then befall him from such negligence, the master is not liable. The doctrine was first announced in this country by the supreme court of South Carolina in 1841, in Murray v. Railroad Co. 1 McMull. 385, and was affirmed by the supreme court of Massachusetts the following year in Farwell v. Boston & Worcester R. Co. 4 Metc. 49. In the South Carolina case, a fireman, while in the employ of the company, was injured by the negligence of an engineer also in its employ, and it was held that the company was not liable, the court observing that the engineer no more represented the company than the fireman; that each in his separate department represented his principal; that the regular movement of the train of cars to its destination was the result of the ordinary performance by each of his several duties; and that it seemed to be on the part of the several agents a joint undertaking where each one stipulated for the performance of his several part; that they were not liable to the company for the conduct of each other, nor was the company liable to one for the conduct of another, and that, as a general rule, when there was no fault in the owner, he was only liable to his servants for wages.

In the Massachusetts case, an engineer employed by a railroad company to run a train on its road was injured by the negligence of a switch-tender also in its employ, and it was held that the company was not liable. The court placed the exemption of the company, not on the ground of the South Carolina decision, that there was a joint undertaking by the fellow-servants, but on the ground that the contract of the engineer implied that he would taks upon himself the risks attending its performance; that those included the injuries which might befall him from the negligence of fellow-servants in the same employment; and that the switch-tender stood in that relation to him. And the court added that the exemption of the master was supported by considerations of policy. 'When several persons,' it said, 'are employed in the conduct of one common enterprise or undertaking, and the safety of each depends on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other.' And to the argument, which was strongly pressed, that though the rule might apply where two or more servants are employed in the same department of duty, where each one can exert some influence over the conduct of the other, and thus, to some extent, provide for his own security, yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another, it answered that the objection was founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. 'When the object to be accomplished,' it said, 'is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case.' And it added, 'that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied.' 4 Metc. 49, 60. The opinion in this case, which was delivered by Chief Justice SHAW, has exerted great influence in controlling the course of decisions in this country. In several states it has been followed, and the English courts have cited it with marked commendation.

The doctrine of the master's exemption from liability was first distinctly announced in England in 1850 by the court of exchequer in Hutchinson v. ''York, N. C. & B. Ry. Co.'' 5 Exch. 343. Priestley v. Fowler, 3 Mees. & W. 1, which was decided in 1837, and is often cited as the first case declaring the doctrine, did not directly involve the question as to the liability of a master to a servant for the negligence of fellow-servant. In that case a van of the defendant in which the plaintiff was carried was out of repair, and overloaded, and consequently broke down, and caused the injury complained of; but it did not appear what produced the defect in the van, or by whom it was overloaded. The court, in giving its decision against the plaintiff, observed that if the master was liable, the principle of that liability would 'carry us to an alarming extent;' and in illustration of this statement said that if the owner of a carriage was responsible for its sufficiency to his servant, he was, under the principle, responsible for the negligence of his coach-maker, or harness-maker, or coachman, and mentioned other instances of such possible responsibility to a servant for the negligence of his fellows, concluding that the inconvenience of such consequences afforded a sufficient argument against the application of the principle to that case. The case, therefore, can only be considered as indirectly asserting the doctrine. At any rate, the Hutchinson Case is the first one where the doctrine was applied to railway service. There it appeared that a servant of the company who, in the discharge of his duty, was riding on one of its trains, was in jured by a collision with another train of the same company, from which his death ensued; and it was held that his representatives could not recover, as he was a fellow-servant with those who caused the injury; and the court said that whether the death resulted from the mismanagement of the one train or the other, or of both, did not affect the principle. The rule was applied at the same time by that court to exempt a master-builder from liability for the death of a bricklayer in his employ, caused by the defective construction of a scaffolding by his other workmen, by reason of which it broke, and the bricklayer at work upon it was thrown to the ground and killed. Wigmore v. Jay, 5 Exch. 354. The doctrine assumes that the servant causing the injury is in the same emyloyment with the servant injured; that is, that both are engaged in a common employment. The question in all cases therefore is, what is essential to render the service in which different persons are engaged a common employment? And this question has caused much conflict of opinion between different courts, and often much vacillation of opinion in the same court.

In Bartonshill Coal Co. v. Reid, and the Same Co. v. McGuire, reported in 3 Macq. H. L. Cas. 266, 300, decided in 1858, the parties injured were miners employed to work in a coal-pit; and the party whose negligence caused the injury was employed to attend to the engine by which they were let down into the mine and brought out, and the coal was raised which they had dug; and it was held that they were engaged in a common work, that of getting coal from the pit. 'The miners,' said the court in the latter case, 'could not perform their part unless they were lowered to their work; nor could the end of their common labor be attained unless the coal which they got was raised to the pit's mouth; and, of course, at the close of their day's labor the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the person intrusted with the machinery might be occasionally negligent, and fail in his duty.' Lord Chancellor CHELMSFORD, who gave the principal opinion in the latter case, referred to previous cases in which the master's exemption from liability had been sustained, and said: 'In the consideration of these cases it did not become necessary to define with any great precision what was meant by the words 'common service' or 'common employment,' and perhaps it might be difficult beforehand to suggest any exact definition of them. It is necessary, however, in each particular case to ascertain whether servants are fellow-laborers in the same work, because, although a servant may be taken to have engaged to encounter all risks which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Where servants, therefore, are engaged in different departments of duty, an injury committed by one servant upon another, by carelessness or negligence in the course of his peculiar work, is not within the exemption, and the master's liability attaches in that case in the same manner as if the injured servants stood in no such relation to him.' The lord chancellor also commented upon some decisions of the Scotch courts, and among others that of McNaughton v. ''Caledonian Ry. Co.'' 19 Ct. Sess. Cas. 271, and said that it might be 'sustained without conflicting with the English authorities, on the ground that the workmen in that case were engaged in totally different departments of work, the deceased being a joiner of carpenter who, at the time of the accident, was engaged in repairing a rail way carriage; and the persons by whose negligence his death was occasioned, were the engine-driver and the persons who arranged the switches.' And in the same case Lord BROUGHAM, after mentioning the observations of a judge of the Scottish courts that an absolute and inflexible rule, relasing the master from responsibility in every case where one servant is injured by the fault of another, was utterly unknown to the law of Scotland, said that it was also utterly unknown to the law of England, and added: 'To bring the case within the exemption there must be this most material qualification: that the two servants must be men in the same common employment, and engaged in the same common work under that common employment.'

Later decisions in the English courts extend the master's exemption from liability to cases where the servant injured is working under the direction of a foreman or superintendent, the grade of service of the latter not being deemed to change the relation of the two as fellow-servants. Thus, in Wilson v. Merry, decided by the house of lords in 1868, on appeal from the court of session of Scotland, the submanager of a coal-pit, whose negligence in erecting a scaffold which obstructed the circulation of air underneath, and led to an accumulation of fire-damp that exploded and injured a workman in the mine, was held to be a fellow-servant with the injured party. And the court laid down the rule that the master was not liable to his servant unless there was negligence on the master's part in that which he had contracted with the servant to do, and that the master, if not personally superintending the work, was only bound to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work; that when he had done this he had done all that he was required to do, and if the persons thus selected were guilty of negligence, it was not his negligence, and he was not responsible for the consequences. L. R. I. H. L. Scotch App. 326. In this case, as in many others in the English courts, the foreman, manager, or superintendent of the work, by whose negligence the injury was committed, was himself also a workman with the other laborers, although exercising a direction over the work. The reasoning of that case has been applied so as to include, as contended here, employes of a corporation in a department separated from each other, and it must be admitted that the terms 'common employment,' under late decisions in England, and the decisions in this country following the Massachusetts case, are of very comprehensive import. It is difficult to limit them so as to say that any persons employed by a railway company, whose labors may facilitate the running of its trains, are not fellow-servants, however widely separated may be their labors. See Holden v. Fitchburgh R. Co. 129 Mass. 268. But, notwithstanding the number and weight of such decisions, there are, in this country, many adjudications of courts of great learning restricting the exemption to cases where the fellow-servants are engaged in the same department, and act under the same immediate direction; and holding that, within the reason and principle of the doctrine, only such servants can be considered as engaged in the same common employment. It is not, however, essential to the decision of the present controversy to lay down a rule which will determine, in all cases, what is to be deemed such an employment, even if it were possible to do so.

There is, in our judgment, a clear distinction to be made in their relation to their common principal between servants of a corporation exercising no supervision over others engaged with them in the same employment and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. A conductor having the entire control and management of a railway train occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. This view of his relation to the corporation seems to us a reasonable and just one, and it will insure more care in the selection of such agents, and thus give greater security to the servants engaged under him in an employment requiring the utmost vigilance on their part, and prompt and unhesitating obedience to his orders. The rule which applies to such agents of one railway corporation must apply to all, and many corporations operate every day several trains over hundreds of miles at great distances apart, each being under the control and direction of a conductor specially appointed for its management. We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it shall stop and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow-servant with the firemen, the brakemen, the porters, and the engineer. The latter are fellow-servants in the running of the train under his direction, who, as to them and the train, stands in the place of and represents the corporation.

As observed by Mr. Wharton in his valuable Treatise on the Law of Negligence: 'It has sometimes been said that a corporation is obliged to act always by servants, and that it is unjust to impute to it personal negligence in cases where it is impossible for it to be negligent personally. But if this be true it would relieve corporations from all liability to servants. The true view is that, as corporations can act only through superintending officers, the negligences of those officers, with respect to other servants, are the negligences of the corporation.' Section 232a. The author, in a note, refers to Brickner v. ''New York Cent. R. Co., decided in the supreme court of New York, and afterwards affirmed in the court of appeals; and to Malone v. Hathaway'', decided in the latter court, in which opinions are expressed in conformity with his views. These opinions are not, it is true, authoritative, for they do not cover the precise points in judgment; but were rather expressed to distinguish the questions thus arising from those then before the court. They indicate, however, a disposition to ingraft a limitation upon the general doctrine as to the master's exemption from liability to his servants for the negligence of their fellows, when a corporation is the principal, and acts through superintending agents. Thus, in the first case, the court said: 'A corporation cannot act personally. It requires some person to superintend structures, to purchase and control the running of cars, to employ and discharge men, and provide all needful appliances. This can only be done by agents. When the directors themselves personally act as such agents, they are the representatives of the corporation. They are then the executive head or master. Their acts are the acts of the corporation. The duties above described are the duties of the corporation. When these directors appoint some person other than themselves to superintend and perform all these executive duties for them, then such appointee, equally with themselves, represents the corporation as master in all those respects. And though, in the performance of these executive duties, he may be, and is, a servant of the corporation. he is not in those respects a co-servant, a co-laborer, a co-employe, in the common acceptation of those terms, any more than is a director who exercises the same authority.' 2 Lans. 516. Affirmed in 49 N. Y. 672. And in Malone v. Hathaway, in the court of appeals, Judge ALLEN says: 'Corporations necessarily acting by and through agents, those having the superintendence of various departments, with delegated authority to employ and discharge laborers and employes, provide materials and machinery for the service of the corporation, and generally direct and control under general powers and instructions from the directors, may well be regarded as the representatives of the corporation, charged with the performance of its duties, exercising the discretion ordinarily exercised by principals, and, within the limits of the delegated authority, the acting principal. These acts are in such case the acts of the corporation, for which and for whose neglect the corporation, within adjudged cases, must respond, as well to the other servants of the company as to strangers. They are treated as the general agents of the corporation in the several departments committed to their care.' 64 N. Y. 5, 12. See, also, Corcoran v. Holbrook, 59 N. Y. 517.

In Little Miami R. Co. v. Stevens, the supreme court of Ohio held that where a railroad company placed the engineer in its employ under the control of a conductor of its train, who directed when the cars were to start and when to stop, it was liable for an injury received by him caused by the negligence of the conductor. 20 Ohio, 415. There a collision between two trains occurred in consequence of the omission of the conductor to inform the engineer of a change of places in the passing of trains ordered by the company. Exemption from liability was claimed on the ground that the engineer and conductor were fellow-servants, and that the engineer had, in consequence, taken, by his contract of service, the risk of the negligence of the conductor; and also that public policy forbade a recovery in such cases. But the court rejected both positions. To the latter it very pertinently observed that it was only when the servant had himself been careful that any right of action could accrue to him, and that it was not likely that any would be careless of their lives and persons or property merely because they might have a right of action to recover for injuries received. 'If men are influenced,' said the court, 'by such remote considerations to be careless of what they are likely to be most careful about, it has never come under our observation. We think the policy is clearly on the other side. It is a matter of universal observation that, in any extensive business where many persons are employed, the care and prudence of the employer is the surest guaranty against mismanagement of any kind.' In Railway Co. v. Keary, 3 Ohio St. 201, the same court affirmed the doctrine thus announced, and decided that when a brakeman in the employ of a railroad company, on a train under the control of a conductor having exclusive command, was injured by the carelessness of the conductor, the company was responsible; holding that the conductor in such case was the sole and immediate representative of the company, upon which rested the obligation to manage the train with skill and care. In the course of an elaborate opinion the court said that, from the very nature of the contract of service between the company and employes, the company was under obligation to them to superintend and control with skill and care the dangerous force employed, upon which their safety so essentially depended. 'For this purpose,' said the court, 'the conductor is employed, and in this he directly represents the company. They contract for and engage his care and skill. They commission him to exercise that dominion over the operations of the train which essentially pertains to the prerogatives of the owner, and in its exercise he stands in the place of the owner, and is in the discharge of a duty which the owner, as a man, and a party to the contract of service, owes to those placed under him, and whose lives may depend on his fidelity. His will alone controls everything, and it is the will of the owner that his intelligence alone should be trusted for this purpose. This service is not common to him and the hands placed under him. They have nothing to do with it. His duties and their duties are entirely separate and distinct, although both necessary to produce the result. It is his to command and theirs to obey and execute. No service is common that does not admit a common participation, and no servants are fellow-servants when one is placed in control over the other.' In Louisville & N. R. Co. v. Collins, 2 Duv. 114, the subject was elaborately considered by the court of appeals of Kentucky; and it held that, in all those operations which require care, vigilance, and skill, and which are performed through the instrumentality of superintending agents, the invisible corporation, though never actually, is yet always constructively, present through its agents who represent it, and whose acts, within their representative spheres, are its acts; that the rule of the English courts, that the company is not responsible to one of its servants for an injury inflicted from the neglect of a fellow-servant, was not adopted to its full extent in that state, and was regarded there as anomalous, inconsistent with principle and public policy, and unsupported by any good and consistent reason. In commenting upon this decision in his Treatise on the Law of Railways, Redifield speaks with emphatic approval of the declaration that the corporation is to be regarded as constructively present in all acts performed by its general agents within the scope of their authority. 'The consequences of mistake or misapprehension upon this point,' says the author, 'have led many courts into conclusions greatly at variance with the common instincts of reason and humanity, and have tended to interpose an unwarrantable shield between the conduct of railway employes and the just responsibility of the company. We trust that the reasonableness and justice of this construction will, at no distant day, induce its universal adoption.' Vol. 1, p. 554.

There are decisions in the courts of other states, more or less in conformity with those cited from Ohio and Kentucky, rejecting or limiting, to a greater or less extent, the master's exemption from liability to a servant for the engligent conduct of his fellows. We agree with them in holding-and the present case requires no further decision-that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that, for injuries resulting from his negligent acts, the company is responsible. If such a conductor does not represent the company, then the train is operated without any representative of its owner. If, now, we apply these views of the relation of the conductor of a railway train to the company, and to the subordinates under him on the train, the objections urged to the charge of the court will be readily disposed of. Its language, in some sentences, may be open to verbal criticism; but its purport touching the liability of the company is that the conductor and engineer, though both employes, were not fellow-servants in the sense in which that term is used in the decisions; that the former was the representative of the company, standing in its place and stead in the running of the train, and that the latter was, in that particular, his subordinate, and that for the former's negligence, by which the latter was injured, the company was responsible.

It was not disputed on the trial that the collision which caused the injury complained of was the result of the negligence of the conductor of the freight train, in failing to show to the engineer the order which he had received, to stop the train at South Minneapolis until the gravel train, coming on the same road from an opposite direction, had passed; and the court charged the jury that if they so found, and if the plaintiff did not contribute to his injury by his own negligence, the company was liable; holding that the relation of superior and inferior was created by the company, as between the two, in the operation of its train, and that they were not, within the reason of the law, fellow-servants engaged in the same common employment. As this charge was, in our judgment, correct, the plaintiff was entitled to recover upon the conceded negligence of the conductor. The charge on other points is immaterial; whether correct or erroneous, it could not have changed the result; the verdict of the jury could not have been otherwise than for the plaintiff. Without declaring, therefore, whether any error was committed in the charge on other points, it is sufficient to say that we will not reverse the judgment below if an error was committed on the trial which could not have affected the verdict. Brobst v. Brock, 10, Wall. 519. And, with respect to the negligence of the conductor of the gravel train, no instruction was given or requested. Judgment affirmed.

BRADLEY, J.

Justices MATTHEWS, GRAY, BLATCHFORD, and myself dissent from the judgment of the court. We think that the conductor of the railroad train in this case was a fellow-servant of the railroad company with the other employes on the train. We think that to hold otherwise would be to break down the long-established rule with regard to the exemption from responsibility of employers for injuries to their servants by the negligence of their fellow-servants.


text: Talk:Chicago St. Railway Company v. Ross/Opinion of the Court

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text:
Batchelor v. Brereton

J. H. Bradley and A. B. Duvall, for appellant.

A. S. Worthington and Leigh Robinson, for appellees.

BLATCHFORD, J.

title: Batchelor v. Brereton


text: Talk:Batchelor v. Brereton

title: Talk:Batchelor v. Brereton


text:
Batchelor v. Brereton/Opinion of the Court

The question in this case relates to the proper distribution of the proceeds of the sale of a parcel of land in lot 9, in square 455, in the city of Washington, under a decree of the supreme court of the District of Columbia. William H. Brereton and Samuel Brereton, (also hereinafter called Samuel Brereton, Jr.,) being tenants in common of the land, Samuel and Sarah A., his wife, executed to Peter Hannay a deed dated September 29, 1859, of the land in question, with some other land in lot 9, which was duly recorded. The deed names Samuel and his wife as the parties of the first part. It recites that Samuel, being seized of the one-half undivided interest in the land, desires to assign and convey the same in such manner that the said one-half interest shall inure to the benefit of the said Sarah A. during her natural life, and that to that end he executes the deed. By it, he conveys to Hannay, and to his heirs and assigns, forever, all his title to one-half of the land, 'to have and to hold the said undivided one-half interest in the said lands and premises, to him, the said Peter Hannay, his heirs and assigns, in and upon the trusts hereinafter mentioned and declared, and for no other use, trust, or purpose whatsoever, in trust for the sole use and benefit of Sarah A. Brereton, * *  * the wife of the said Samuel Brereton, during her natural life, free from all ownership, control, and obligation to and for her said husband, except so far as herein provided for; to permit the said Sarah A. Brereton to receive the rents, issues, and profits of the said undivided one-half interest of said Samuel Brereton in and to said described lands and tenements, and the same to apply to and for her sole use and benefit; and upon this further trust, at any time hereafter, upon the written request of said Sarah A. Brereton, and the written consent of said Samuel Brereton, to sell, dispose of, or convey the said undivided pieces or parcels of ground and premises, absolutely, in fee-simple, in trust, or for such term or time, and for such uses and purposes, and to such person and persons, as the said Sarah A. Brereton, with the written consent of the said Samuel Brereton, may request or direct, in writing, as aforesaid.' The deed further provides that, if Samuel shall survive Sarah A., the land shall revert to him; and that, if she shall survive him, the land, after her death, shall go to his heirs, or according to his direction given by will or other instrument in writing. Neither in the granting clause nor in the habendum is there any mention of the grant of any interest except the interest of Samuel.

The particular question in this case depends on the effect of a subsequent deed, dated June 1, 1874, and duly recorded. That deed begins thus: 'This indenture, made this first (1st) day of June, in the year of our Lord one thousand eight hundred and seventy-four, (1874,) between Wm. H. and Sam. Brereton, of the city of Washington, District of Columbia, parties of the first part, and Wm. H. Ward, of same city and district, of the second part.' It then recites that William H. and Samuel owe to Charles Batchelor $3,500, on a promissory note made by them, payable to him three years after June 1, 1874, with interest at 10 per cent. per annum. It then proceeds: 'Now, therefore, this indenture witnesseth that said parties of the first part' have conveyed and do convey to the party of the second part, his heirs and assigns, the land in question, with some land in lot 8, describing it, and all the title of the parties of the first part to it, to have and to hold in trust for the payment of said note, and with power, on default in its payment, to sell the land at auction, and convey it, and out of the proceeds of sale to pay the note. The deed concludes as follows: 'In testimony whereof, the said parties of the first part have hereunto set their hands and seals;' and is signed thus:

'WM. H. BRERETON, [L. S.] SAM. BRERETON, [L. S.] S. A.     BRERETON, [Seal.]'

To this deed is appended the following certificate:

'District of Columbia, County of Washington-ss.: I, B. W.     Ferguson, a justice of the peace in and for the county      aforesaid, do hereby certify that W. H. Brereton, Samuel      Brereton, and Sarah A. Brereton, parties to a certain deed,      bearing date on the first (1st) day of June, A. D. 1874, and      hereto annexed, personally appeared before me, in the county      aforesaid, the said W. H. Brereton, Samuel Brereton, and      Sarah A. Brereton, his wife, being personally known to me to      be the persons who executed the said deed, and acknowledged      the same to be their act and deed; and the said Sarah A.      Brereton, being by me examined privily and apart from her      husband, and having the deed aforesaid fully explained to      her, acknowledged the same to be her act and deed, and      declared that she had willingly signed, sealed, and delivered      the same, and that she wished not to retract it.

'Given under my hand and seal, this twenty-third day of June,     A. D. 1874.

'B. W. FERGUSON, [Seal.]

'Justice of the Peace.'

On the thirtieth of May, 1876, Samuel Brereton died intestate, leaving him surviving his widow, the said Sarah A., and an infant son, James I., his only heir at law. Subsequently, Ward, the trustee under the deed of trust of June 1, 1874, and under another and prior deed of trust to him in favor of the same Charles Batchelor, advertised the land for sale at auction. Batchelor had died, and Mary Ann Batchelor had been appointed his executrix. To prevent this sale, Sarah A. Brereton, on the fourth of February, 1879, filed the bill in this suit, making as defendants James I. Brereton, William H. Brereton, Peter Hannay, William H. Ward, Mary Ann Batchelor, as esecutrix, and some other parties who claimed an interest in or lien on the land. The bill, after setting forth the trust deed to Ward, of June 1, 1874, avers: 'Your oratrix further shows unto this honorable court that, although she sealed, signed, and acknowledged the conveyance' of June 1, 1874, 'she did not otherwise join in it, nor is she meritioned therein as a party thereto; that said conveyance does not convey nor purport to convey any right, title, interest, or estate of your oratrix in and to said property, or the right, title, interest, or estate of any person or persons other than that of the said William and Samuel, whose alleged indebtedness said conveyance was designed to secure; and your oratrix is advised and believes, and so charges, that, except to renounce her dower interest in said property, to which your oratrix would have been entitled in case said deed from Samuel Brereton, Senior, to the defendants William Brereton and Samuel Brereton, Junior,' (being the deed of February 2, 1854, hereafter mentioned,) 'under which deed said conveyance to said defendant Ward was made, had been operative and effective, the joinder of your oratrix in the execution and acknowledgment of said conveyance was wholly unnecessary and without effect.' The meaning of this last averment is this: On May 1, 1851, Samuel Brereton, Sr., the father of William H. and Samuel, Jr., conveyed the land in question, with some land in in lot 8, to William H. and his heirs, in trust for the use and benefit of Mary Ann, the wife of the said Samuel, Sr., for her life, with remainder in fee for the use and benefit of said William H. and Samuel, Jr., as tenants in common. The said Mary Ann having died, Samuel Brereton, Sr., on the second of February, 1854, executed a deed to William H. and Samuel, Jr., in fee, as tenants in common, of the land covered by the deed of May 1, 1851. The bill avers that, by reason of the deed of May 1, 1851, Samuel Brereton, Sr., no longer had any interest in the premises which the deed of February 2, 1854, purported to convey, and that that deed was inoperative. The meaning of the allegation that the conveyance to Ward of June 1, 1874, was made under the deed of February 2, 1854, is that the only description in the conveyance to Ward of the land it covers says that it is parts of lots 8 and 9, 'as the same is more particularly described by metes and bounds in a deed from Sam. Brereton to Wm. H. and Sam. Brereton, Jr., dated the second day of February, 1854.'

The bill avers that Ward is intending to sell the interest of the plaintiff in the land in question, claiming that it passed to him by reason of her having signed and acknowledged the deed of June 1, 1874, notwithstanding the before-mentioned circumstances of such signature and acknowledgment. The bill prays for an injunction restraining Ward and Mrs. Batchelor from selling the property, and for a sale, under the direction of the court, of the interest in it of all the parties to the suit, and and the proper distribution of the proceeds. A temporary injunction was granted. The answer of Mrs. Batchelor sets up that the entire title to the land was vested in Ward, as trustee, to secure the $3,500 note. The land was sold at auction under a decree of the court, by a trustee, a reference was made to an auditor to state the trustee's account, and 'the legal distribution of the fund among the parties in interest,' and the sale was confirmed.

In July, 1880, the auditor made his report. In it, speaking of the deed to Ward of June 1, 1874, he says: 'The signature of Sarah A. Brereton appears to the said deed, with her seal. She also united in the acknowledgment attached to the said deed, the said acknowledgment being made in the proper form prescribed by the statute regulating that matter in this district. It will be observed that she is not a party named in any of the recitals of the said deed, and that the trustee, Hannay, is neither mentioned as a party, nor does he unite in any manner in the execution or acknowledgment of the conveyance. * *  * It is asserted, upon the one hand, that this deed cannot be recognized here, inasmuch as the trustee is not in any manner a party to it, and inasmuch as it is left uncertain what might have been the intention of the complainant, Sarah A. Brereton, in affixing her signature and uniting in the acknowledgment of the same. Upon the other hand, it is argued that the paper is such an act of the said Sarah A. Brereton as will induce a court of equity to recognize it as the exercise upon her part of the power of appointment, or a direction to her trustee, and to enforce the same as such, and, this distribution being in a court of equity, and being the act of a court of equity, the instrument in question will be so treated and enforced. * *  * I am constrained to look upon the paper as absolutely void so far as' Sarah A. Brereton 'is concerned, for the purpose of this proceeding. * *  * I have, therefore, *  *  * treated this conveyance as that of William H. Brereton alone, and as not conveying or affecting the interest or estate of the said Sarah A. Brereton; and the distribution to the indebtedness secured by this deed of trust is, therefore, made from the share of the said William H. Brereton, so far as the same is available.' Mrs. Batchelor filed exceptions to the report of the auditor, in which she claims that the deed of trust to Ward, of June 1, 1874, 'is a good and valid lien as well upon the moiety of, or interest in, the land described in the bill, held by Peter Hannay, trustee, as upon that of William H. Brereton,' and she, therefore, excepts to the allowance of every item in the report which treats 'the said deed of trust as invalid and not a lien upon the moiety or interest held by Hannay.' On a hearing by the court, at special term, the exceptions filed by Mrs. Batchelor were sustained, so far as they related to the deed of June 1, 1874; and the court, in its decree, declared that deed to be a valid lien and charge on both moieties of the land sold; and the report was overruled, so far as it appropriated the proceeds of sale in favor of Sarah A. Brereton and James I. Brereton, as against the deed of June 1, 1874. The court, in general term, on an appeal by the plaintiff from the decree sustaining Mrs. Batchelor's exceptions, reversed the decree in special term, so far as it sustained the exceptions in regard to the effect of the plaintiff's signature to the deed of June 1, 1874, and her acknowledgment thereof, and overruled the exceptions and confirmed the report of the auditor. From the decree to that effect Mrs. Batchelor has appealed to this court.

The only question involved is that stated by the auditor in his report, and it is easy of solution. Mrs. Brereton was not named in the deed of June 1, 1874. She was not a party to it. She granted nothing by it. Although she signed it, and although the magistrate certified that she was a party to it, and that she acknowledged it to be her act and deed, after having had it fully explained to her, and declared that she had willingly signed, sealed, and delivered it, and that she wished not to retract it, it is apparent that she was regarded by the parties to it and the magistrate as having executed it only in respect of a dower interest of hers, as the wife of Samuel Brereton,-a supposed interest, perhaps, as regarded lot 9, and an actual interest as regarded lot 8. In view of the deed of February 2, 1854, to William H. Brereton and Samuel Brereton, conveying the land in lots 8 and 9 to them in fee, as tenants in common, and of the reference, in the deed of June 1, 1874, to the deed of February 2, 1854, as the basis of the title which the grantors were conveying, it may have been supposed that there was sufficient scope for the signature and acknowledgment by Mrs. Brereton, as regarded lot 9, in the fact that, if her husband had an interest, under that deed, in respect to lot 9, which was capable of conveyance, she, as his wife, had an inchoate right of dower in regard to it, which she had not conveyed by the deed of September 29, 1859, and which the parties to the deed of June 1, 1874, and the magistrate, had a right to regard as the subject-matter to be affected by her signature and acknowledgment, although the deed of May 1, 1851, had, by the death of Mary Ann Brereton, become operative to vest in William H. and Samuel, Jr., a title in fee to the land in lot 9, prior to the execution of the deeds of February 1, 1854, and September 29, 1859. This may have been thought a sufficient reason for signing the deed, so far as the land in question, which is wholly in lot 9, is concerned; the deed of September 29, 1859, covering land wholly in lot 9. Then, agian, the deeds of May 1, 1851, February 2, 1854, and June 1, 1874, cover land in lot 8, as well as land in lot 9; and as to the land in lot 8, there was clearly a dower interest to be covered by the execution, by Mrs. Brereton, of the last-named deed.

But, however, all this may be, (and it is referred to only as furnishing an explanation of her signature,) her interest in the undivided half of the land in lot 9, for her life, free from the ownership of her husband, with the power to direct the conveyance of it by Hannay, was a distinct interest, the legal title to which was in Hannay, in trust, and could not be conveyed, except by Hannay, on her request or direction in writing, with the written corsent of her husband. Under the deed of September 29, 1859, no interest in the undivided half of the land in lot 9 could revert to her husband prior to her death. Therefore, it was not any interest of his under that deed which her husband was conveying by the deed of June 1, 1874. Nor was it her power of appointment, created by the deed of September 29, 1859, which she was exercising by the deed of June 1, 1874, because that was to be made effective by a conveyance by Hannay, and there was no request or direction by her to Hannay to convey, and he never did convey. The debt of $3,500 to Batchelor, named in the latter deed, is described therein as a debt by William H. Brereton and Samuel Brereton to Batchelor, and Mrs. Brereton is not named as debtor. Therefore, all property which they were conveying by that deed, to secure that debt, was presumably their own property, and any interest of Mrs. Brereton in it, sufficient to call for her signature to that deed, was presumably an interest created by her being the wife of Samuel, and which was supposed to grow out of his title and her marital relation, and not to have been before conveyed, irrespective of any other interest which she had in the land, or any power of appointment in respect of it.

It needs not much argument or authority to support the conclusion at which we have arrived. In Agricultural Bank v. Rice, 4 How. 225, 241, it was held that, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and that merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient. In the present case, if Mrs. Brereton possessed the right, she was not the grantor, and used no words to convey her right. No intention on her part to execute the power she possessed appears in the deed. Warner v. ''Connecticut Mut. Life Ins. Co.'' 109 U.S. 357, S.C.. 3 SUP. CT. REP. 221, and cases there cited; Story, Eq. Jur. § 1062a. Moreover, Hannay possessed the right, and was not the grantor, and was not requested or directed by Mrs. Brereton to convey. 2 Perry, Trusts, § 778.

The decree of the court in general term is affirmed.


text: Talk:Batchelor v. Brereton/Opinion of the Court


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Reynolds v. First National Bank of Crawfordsville Indiana

This was a bill in equity to quiet title and restrain waste, filed by the appellee, First National Bank of Crawfordsville, Indiana, against the appellant, Harris Reynolds. The bill alleged in substance that on August 18, 1875, Reynolds was indebted to the bank in the sum of $7,000, which was evidenced by his note of that date and amount, with Isaac M. Vance and James H. Watson as sureties; and that on the day just mentioned, in order to indemnify the sureties, Reynolds executed a mortgage on certain real estate; that on September 17, 1877, Reynolds executed to the bank another mortgage on the same lands to secure an additional sum of $3,000 which he at that date owed the bank; that on August 30, 1878, Reynolds was adjudged a bankrupt, and John W. Baird was appointed assignee of his estate; that on April 18, 1879, the assignee reported to the bankruptcy court that no assets of the bankrupt had come to his hands and no debts been proven against his estate, whereupon the estate was settled, and both the assignee and the bankrupt discharged; that before the discharge of the assignee, to-wit, on April 11, 1879, Reynolds stated to the bank that no claims had been proven against his estate, and that the register in bankruptcy had given him a writing showing that fact, and also showing that the title to the real estate covered by the mortgage to the bank had revested in him; that relying upon this statement the bank agreed with Reynolds, Vance, and Watson that it would release the two latter from their liability on the note for $7,000, in consideration of which Vance and Watson agreed to pay the bank a certain sum of money and assign to it the mortgage executed to them by Reynolds for their indemnity, and Reynolds agreed to convey the mortgaged property to the bank, but was to be allowed to retain possession thereof until March 1, 1880, and that these agreements were executed; that afterwards the bank purchased a certificate of purchase at sheriff's sale of a certain part of the mortgaged premises which had been sold upon a judgment senior to the mortgage to the bank, and at the expiration of the time for redemption took a sheriff's deed for the land described therein; that the bank was compelled to pay $1,286.60 in discharge of a schoolfund mortgage upon the real estate mortgaged to it; that the bank purchased from Ann Smith a decree against said land, and took an assignment thereof to itself; that 'said purchases and assignments were made upon the faith of the agreement and deed of Reynolds, and for the purpose of saving expense of foreclosing said liens, and that the amount of liens so held * * * was fully equal to the value of said real estate at the time of said agreement;' that Reynolds, for the purpose of annoying complainant and casting a cloud upon its title and delaying it in getting possession, claimed that after the execution of the deed to the bank, Baird, the assignee, executed to him a quitclaim deed for the same real estate, under which he claimed to be the owner; that this deed was wholly inoperative, null, and void, because the interest which it purported to convey never had passed from Reynolds, and because it was made without any authority from the bankruptcy court, and because it was executed by a party out of possession, and as to whom there was an adverse possession. It was averred, in an amendment to the bill, that the deed from Baird, the assignee, to Reynolds was executed after the latter had made his deed to the bank; that Reynolds had caused the deed of the assignee to himself to be recorded; and that under it he was asserting a title paramount to that of the bank, and was threatening to commit waste, and was insolvent. The prayer of the bill was for a decree quieting the title of the bank and enjoining waste by Reynolds.

The answer of Reynolds was filed September 20, 1880. It admitted that he was indebted to the bank, as charged in the bill, in the sum of $7,000, for which Vance and Watson were his sureties, and that he had executed to them the indemnifying mortgage mentioned in the bill. It admitted the averments in respect to his bankruptcy, but denied that he had made to the bank the representations that the assignee in bankruptcy had given him a statement in writing showing that no debts had been proven against his estate in bankruptcy, and that the title to his real estate had been revested in him. The answer averred that prior to the execution of the deed by Reynolds to the bank, the latter proposed to him that it would pay off all his debts which were liens upon his real estate, and permit him to retain possession thereof until March 1, 1880, on condition that Reynolds would convey to the bank, by quitclaim deed, the mortgaged premises, and upon the further condition that Vance and Watson would convey to the bank, by deed of warranty, 200 acres of land owned by them, and that this proposition was accepted; that the consideration for the said contract between Reynolds, Watson, Vance, and the bank, pursuant to which he executed the quitclaim deed to the bank, was this undertaking and agreement of the bank; that Vance and Watson complied on their part with the agreement, and conveyed, with covenants of warranty, to the bank 200 acres of land owned by them; that it was upon the faith of this agreement, and none other, that the quitclaim deed was executed by Reynolds; that when this agreement was entered into, the estate in bankruptcy of Reynolds was unsettled, as the bank knew, and that the purchase of the sheriff's certificates, and other purchases made and assignments taken by the bank, were in violation of the agreement under which Reynolds made the deed to the bank.

The answer admitted the execution and delivery of the deed from Baird, the assignee, to Reynolds, and that Reynolds was claiming whatever title the deed conferred on him, and denied that he had threatened to commit waste on the premises.

On May 3, 1881, the cause was set down for hearing on May 11th, on bill and answer by counsel for the bank, and of this the defendant had immediate notice. On the day fixed for the hearing the counsel for Reynolds moved the court to dismiss the bill for failure of the complainant to except to the answer or to file replication thereto.

The motion to dismiss the bill was overruled. The cause was then heard upon bill and answer, and the court found that the equity of the case was with the complainant; that the material averments of the bill, as amended, were true, except the averment as to waste and threatened waste; that the various instruments set forth in the bill had been executed as charged; that Baird, the assignee in bankruptcy, had executed the deed to Reynolds as charged; that this deed was 'wholly inoperative, null, and void,' and that the assertion of title thereunder cast a cloud upon complainant's title; and that the complainant was the owner of and entitled to the possession of the real estate in controversy. A decree was entered on these findings quieting complainant's title, and declaring the deed from Baird to Reynolds void. From this decree Reynolds appealed.

D. W. Voorhees, for appellant.

J. E. McDonald and J. M. Butler, for appellee.

WOODS, J.


text: Talk:Reynolds v. First National Bank of Crawfordsville Indiana


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Reynolds v. First National Bank of Crawfordsville Indiana/Opinion of the Court

The first complaint of the appellant is that the court overruled his motion to dismiss the bill, the appellee having failed to file a replication to the answer within the time prescribed by the equity rules. The motion was properly denied. The sixty-sixth equity rule provides that 'whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed insufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereof. * *  * If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order as, of course, for a dismissal of the suit, and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting, to speed the cause, and to such other terms as may be directed.' The rule thus places it in the defendant's power to compel the complainant to put the cause at issue or to go out of court. The complainant always has the option of setting the case down for hearing on bill and answer, instead of filing a replication, and if the defendant neglects to enter the order for the dismissal of the suit for want of replication until after the cause has been set down for hearing on bill and answer, a motion by the defendant to dismiss the suit for want of replication is incongruous and untimely. On setting the cause down for hearing on bill and answer the case is put at issue, the answer becomes evidence, (equity rule 41, cl. 2,) and the only evidence the defendant needs, for it must be taken as true in all respects. Brinkerhoff v. Brown, 7 Johns. Ch. 217; Grosvenor v. Cartwright, 2 Ch. Cas. 21; Barker v. Wyld, 1 Vern. 140; Perkins v. Nichols, 11 Allen, 542; Dale v. McEvers, 2 Cow. 18. There is, therefore, no necessity for a replication or for the taking of testimony. The setting the case down for hearing on bill and answer is, in effect, a submission of the cause to the court by the complainant on the contention that he is entitled to the decree prayed for in his bill upon the admissions and notwithstanding the denials of the answer. It is plain, therefore, that after the cause had been so set down the motion of defendant to dismiss the suit for want of the timely filing of the replication came too late, and was rightly overruled.

The appellant next complains of the decree rendered by the circuit court, and his first objection is that the court had no jurisdiction to quiet the title of the appellee, as against a deed averred by the bill, and not denied by the answer, to be void on its face. The contention is that a deed void on its face is not a cloud upon the title, and a claim of title under it is no ground for the interference of a court of equity. This objection is not tenable. It may be conceded that the legislature of a state cannot directly enlarge the equitable jurisdiction of the circuit courts of the United States. Nevertheless, an enlargement of equitable rights may be administered by the circuit courts as well as by the courts of the states. Case of Broderick's Will, 21 Wall. 520. And, although a state law cannot give jurisdiction to any federal court, yet it may give a substantial right of such a character that, when there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunal, whether it be a court of equity, admiralty, or of common law. Ex parte McNeil, 13 Wall. 243. While, therefore, the courts of equity may have generally adopted the rule that a deed void upon its face does not cast a cloud upon the title which a court of equity would undertake to remove, we may yet look to the legislation of the state in which the court sits to ascertain what constitutes a cloud upon the title, and what the state laws declare to be such, the courts of the United States sitting in equity have jurisdiction to remove. This was expressly held in the case of Clark v. Smith, 13 Pet. 202, where it was said by this court: 'Kentucky has the undoubted power to regulate and protect individual rights to her soil, and to declare what shall form a cloud on titles; and, having so declared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature. * *  * '

The state of Indiana, where the present case arose, has declared by statute what kind of a claim against real estate is such a cloud upon the title as will support a suit to remove it. Section 1070 of the Revised Statutes of Indiana, of the year 1881, provides as follows: 'An action may be brought by any person, either in or out of possession, or by any one having an interest in remainder or reversion, against another who claims title to or interest in real property adverse to him, although the defendant may not be in possession thereof, for the purpose of determining and quieting the question of title.' This act confers upon any one, against whom another, whether in or out of possession, claims an adverse title or interest in real estate, the substantial right of having the disputed title settled by action in the courts. Under this statute it has been decided by the supreme court of Indiana that it is sufficient to aver that the defendant claims some interest or title, or pretended interest or title, adverse to complainant, without stating what the title is. Marot v. Germania Building Ass'n, 54 Ind. 37; Jeffersonville, etc., R. Co. v. Oyler, 60 Ind. 383. The bill of complainant in this case complies with this rule by averring that 'said Reynolds is, under his deed,' (from Baird, the assignee,) 'claiming and asserting title paramount to the title of this complainant;' and the answer of the defendant admits that, under the deed executed to him by Baird, he is claiming whatever title to said lands the same confers on him. The question whether, under such a statute as that of Indiana, and under the facts stated, the circuit court had jurisdiction to render the decree complained of, has been, in effect, decided in the affirmative by this court in the case of Holland v. Challen, 110 U.S. 15; S.C.. 3 SUP. CT. REP. 495. In that case a statute of Nebraska was under review, which provided that 'an action may be brought and prosecuted to final decree by any person, whether in actual possession or not, claiming title to real estate against any person who claims an adverse interest therein, for the purpose of determining such interest and quieting the title.' The court, speaking by Mr. Justice FIELD, declared, in substance, that this statute dispensed with the general rule of courts of equity, that, in order to maintain a bill to quiet title, it was necessary that the party should be in possession, and, in most cases, that his title should be established at law, or founded on undisputed evidence or long-continued possession. If the equity courts of the United States in Nebraska could dispense with these well-established rules of equity, and administer the rights conferred by this statute, it is not open to question that, in this case, the circuit court could disregard a similar rule, and entertain jurisdiction of the appellee's case, and accord to him the rights conferred by the statute law, even though the deed under which the appellant claimed was void on its face. As the same statute authorizes the court to take cognizance of the case, even when the title of defendant amounts to more than a mere cloud, and applies in every case when the defendant claims an adverse interest in or title to the property in controversy, it is clear that the assignment of error under consideration has no support.

It is next objected to the decree of the circuit court that the appellee's title was itself doubtful, and the bill should, for that reason, have been dismissed; but it is apparent that the appellant was entitled, in equity, to all of his estate in bankruptcy not required for the payment of his debts. This estate, as appears by the everments of the bill not denied by the answer, was subject to mortgage and other liens held by the appellee equal in amount to its full value. When, therefore, no debts having been proven against his estate, the appellant was discharged, and his assignee in bankruptcy had fully settled the estate, the quitclaim deed executed by the former to the appellee vested in the latter a clear equitable title to the premises in controversy, and this was sufficient, under the Indiana statute, to justify the relief prayed for in the bill.

The appellant next insists that the appellee, being a national bank, had no power, under the act establishing national banks, to take a conveyance of the 200-acre tract of land from Vance and Watson, and that, as such a conveyance formed a part of the agreement by which the appellee acquired title to the land conveyed to it by the appellant, the title to the latter tract is void. The national banking law (Rev. St. § 5137) provides that a national banking association may purchase such real estate as shall be mortgaged to it in good faith by way of security for debts previously contracted. The power to purchase the real estate in dispute was, therefore, clearly conferred by the statute. The fact that, in order to secure the same debt, it purchased other real estate not mortgaged to it, cannot affect the title to the land which it was authorized to purchase; but, if there was any force in this objection to the title, it could not be raised by the debtor, for where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable. The sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose. National Bank v. Matthews, 98 U.S. 628; National Bank v. Whitney, 103 U.S. 99; Swope v. Leffingwell 105 U.S. 3.

The appellant insists, further, that the appellee did not perform that part of his contract by which he agreed to pay off the debts of appellant which were a lien upon the property in question; that the purchase of the sheriff's certificate, and the purchase and transfer to himself of the decree in favor of Ann Smith, were not payment of the debts. This is an objection to the form rather than the substance of the transaction. The debts, so far as the original creditors are concerned, were satisfied, and this, together with their assignment to the appellee, who was under a contract with the appellant to pay them, was, in substance and effect, a payment. There is no averment that the appellee had any purpose to attempt their enforcement against the appellant, and, if such attempt should be made, it could not, in the face of the contract, succeed.

We think that the decree of the circuit court is sustained by the admissions of the answer, and that there is no error in the record. Decree affirmed.


text: Talk:Reynolds v. First National Bank of Crawfordsville Indiana/Opinion of the Court


text:
Kansas Pac Ry Company v. Atchison, Topeka & Santa Fe Railroad Company

J. P. Usher, for appellant.

James Hagerman, A. T. Britton, J. H. McGowan, and A. B. Browne, for appellee.

FIELD, J.


text: Talk:Kansas Pac Ry Company v. Atchison, Topeka & Santa Fe Railroad Company


text:
Kansas Pac Ry Company v. Atchison, Topeka & Santa Fe Railroad Company/Opinion of the Court

The plaintiff and the defendant were incorporated by the territorial legislature of Kansas; and the question in controversy relates to land which they respectively claim under grants from the United States. The plaintiff's original name was the Leavenworth, Pawnee & Western Railroad Company, and it is thus termed in the act of congress of 1862 creating the Union Pacific Railroad Company. After the territory became a state that name was changed to the Union Pacific Railroad Company, Eastern Division, and the corporation was so called in subsequent legislation of congress until some time in 1869, when it received its present designation. The admission of Kansas as a state into the Union, and the consequent change of its form of government, in no respect affected the essential character of the corporations, or their powers or rights. They must, after that change, be considered as corporations of the state; as much so as if they had derived their existence from its legislation. As its corporations they are to be treated, so far as may be necessary to enforce contracts or rights of property by or against them, as citizens within the clause of the constitution declaring the extent of the judicial power of the United States. It has been expressly held that they are to be so considered when they have controversies with citizens of other states. And the same course of reasoning which led to this decision must also lead to the conclusion that in all cases where a federal court can take jurisdiction of controversies between citizens, whether of different states or of the same state, it will take jurisdiction of like controversies between corporations, and treat them as citizens of the state under whose laws they were created or continue to exist. The constitution declares that the judicial power of the United States shall extend to all cases in law and equity arising under it, the laws of the United States, and treaties made under their authority. The act of 1875 invests the circuit courts with original cognizance, concurrent with the courts of the several states, 'of all suits of a civil nature at common law or in equity' thus arising, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500. 18 St. 470. The reasons for granting this jurisdiction, and for investing it in the circuit courts, are as applicable where the controversies are between citizens united under a corporate name, as where they are between citizens in their individual capacity. A private corporation is, in fact, but an association of individuals united for a lawful purpose, and permitted to use a common name in their business, and to have a change of members without dissolution. As said by Chief Justice MARSHALL in Providence Bank v. Billings: 'The grant of incorporation is to bestow the character and properties of individuality on a collective and changing body of men.' 4 Pet. 514, 562.

The controversy in this case arises upon laws of the United States. As far back as Cohens v. Virginia, decided more than 60 years ago, it was said that a case may be considered to arise under the constitution or a law of the United States whenever its correct decision depends upon the construction of either. 6 Wheat. 379. The same thing is expressed by the statement that a case arises under the constitution or laws of the United States whenever the rights set up by a party may be defeated by one construction or sustained by the opposite construction. Osborn v. Bank of U.S. 9 Wheat. 738. Here both corporations claim title to the same land in Kansas under different acts of congress, and the decision depends upon the construction given to those acts. It is, therefore, clear that the court below had jurisdiction of the subject of the suit and of the parties.

The plaintiff claims, under the act of July, 1862, to aid the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, and acts amending or supplementing it. That act granted to the company formed under its provisions, for every mile of the road, five sections of public land designated by odd numbers on each side of the line of the road within the limit of 10 miles, which were not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached at the time the line was definitely fixed. It also provided that whenever the company had completed 40 consecutive miles of any portion of the road and telegraph line, and supplied all necessary equipments and appurtenances of a first-class road, the president of the United States should appoint three commissioners to examine the same, and if they reported that the road and telegraph line had been constructed and equipped in all respects as required, patents were to issue for the adjacent lands. An examination was to be had, as each successive section of 40 miles was completed, and, upon a favorable report of the commissioners, other similar patents were to issue. Within one year after its passage the company was required to file in the department of the interior its assent to the act, and within two years afterwards to designate the general route of its road as near as might be, and to file a map of the same in that department. The secretary of the interior was then to withdraw the lands within 15 miles of the designated route from pre-emption, private entry, and sale, and when any portion of the road was finally located he was to cause the lands granted to be surveyed, and set off as fast as necessary for the purposes mentioned.

On the second of July, 1864, an amendatory act was passed doubling the grant, and extending the limits within which the lands were to be withdrawn to 25 miles, but declaring that neither act should defeat or impair any preemption, homestead, swamp-land, or other lawful claim, nor include any government reservation or mineral lands. It contained no express words of new and additional grant, but provided that the numbers in the act of 1862 should be stricken out and larger numbers inserted in lieu thereof. Thenceforth the act of 1862 is to be read as against the United States, and all parties not having acquired in the mean time paramount rights, as though the substituted numbers were originally inserted therein. Missouri, K. & T. R. Co. v. ''Kansas Pac. R. Co. 97 U.S. 497; U.S. v. Burlington'', 98 U.S. 334. The title to the increased quantity of land must, with the exceptions mentioned, therefore be deemed to have passed to the grantee at the date of the original act. That act contemplated the connection of several branch roads with the main line, one of which the plaintiff was to construct. It directed the president to designate the initial point of that line in Nebraska, on the 100th meridian west from Greenwich, at which the eastern branches were to unite, and authorized the plaintiff to construct a railroad and telegraph line from the Missouri river at the mouth of the Kansas river, at the south side thereof, so as to connect with the Pacific road of Missouri at that point. In case the general route of the main line was located so as to require a departure northerly from the proposed Kansas road before it reached that meridian, the location of that road was to conform to it. The route in Kansas west of the meridian of Fort Riley to the initial point mentioned was to be subject to the approval of the president after actual survey. The amendatory act of 1864 enlarged the grants made to all the branches of the main road. As was said by this court in U.S. v. Burlington: 'All the reasons which led to the enlargement of the original grant led to its enlargement to the branches. It was the intention of congress, both in the original and in the amendatory act, to place the Union Pacific Company, and all its branch companies, on the same footing as to lands, privileges, and duties, to the extent of their respective roads, except when it was otherwise specially stated. Such has been the uniform construction given to the acts by all departments of the government. Patents have been issued, bonds given, mortgages executed, and legislation had upon this construction. This uniform action is as potential, and as conclusive of the soundness of the construction, as if it had been declared by judicial decision. It cannot at this day be called in question.' 98 U.S. 341.

On the third of July, 1866, congress passed an act enabling the plaintiff to designate the general route of its road, and to file a map thereof at any time before the first of December, 1866, and providing that after the filing of the map the lands along its entire line, so far as it was designated, should be reserved from sale by the secretary of the interior. It also provided that the company should connect its line of road and telegraph with the Union Pacific road at a point not more than 50 miles westerly from the meridian of Denver, in Colorado.

It is conceded that the plaintiff in due time filed in the department of the interior its acceptance of the acts of 1862 and 1864, commenced the construction of its road under them, completed it within the required time, and complied with the terms and conditions essential to entitle it to the lands granted; that on the tenth of January, 1866, it filed with the secretary of the interior a map of the definite location of its road, showing the dates of the actual location of its various parts in compliance with his instructions; that the road was located along and contiguous to the lands in controversy before February 4, 1865; that upon that location the road was afterwards duly constructed; that on February 6, 1866, the location was approved by the commissioner of the general land-office; that by instructions soon afterwards given the odd-numbered sections of land within 20 miles of the road were withdrawn from sale and reserved for its use; that the railroad along and adjacent to the lands in controversy was completed and accepted by the president before December 14, 1866, and by his order the secretary of the interior was directed to issue patents to the plaintiff for the adjacent lands under the grant; that the lands in controversy in this case are odd sections within 20 miles of the line of the railroad as thus constructed and accepted, and were public lands, July 1, 1862, and have not since been entered under any pre-emption or homestead law, or otherwise reserved or disposed of by the United States, unless they are embraced in a grant to the state of Kansas by virtue of an act of congress of March 3, 1863, under which the defendant claims. If not thus embraced the title of the plaintiff to them is clear.

By that act congress granted lands to the state of Kansas for the purpose of aiding in the construction of various railroads, one of which was to extend from the city of Atchison via Topeka, the capital of that state, to its western line in the direction of Fort Union and Santa Fe, New Mexico, with a branch down the Neosho valley to a point where the Leavenworth and Lawrence road entered it. The lands were the alternate sections, designated by odd numbers, for 10 sections in width on each side of the proposed road. The grant was accompanied with a proviso that in case it should appear when the lines or routes of the road should be definitely fixed that the United States had sold any section granted, or any part thereof, or that the right of pre-emption or homestead settlement had attached to it, or that it had been reserved by the United States for any purpose whatever, then it should be the duty of the secretary of the interior to select from the public lands, nearest to the tiers of sections specified, an equal amount of land in alternate sections or parts of sections, designated by odd numbers, not previously sold, reserved, or otherwise appropriated, to be held by the state of Kansas for the like uses and purposes. The legislature of the state, by an act passed February 9, 1864, accepted the grant from the United States, and, in consideration that the Atchison, Topeka & Santa Fe Railroad Company would construct the road mentioned, directed the governor of the state, whenever any 20 consecutive miles were completed, to convey to that company by patent the lands granted by congress to aid in its construction, to be selected opposite to and within the limit of 10 miles of the road. On the sixteenth of the same month the company accepted the provisions of this act, and filed its acceptance with the secretary of state. On the nineteenth of March following, before any route of the road had been designated by the company, or any map of it filed, the commissioner of the general land-office made an order withdrawing from private sale or location, and from pre-emption or homestead entry, all the public lands lying within 10 miles of lines marked by him on a diagram as 'the probable lines' of the road and its branches. This order was made at the request of senators and representatives in congress from Kansas, and was approved by the secretary of the interior. On the first of January, 1866, the company filed in the department of the interior a map or profile of its road from Topeka to Emporia, adjacent to which and within 20 miles thereof are the lands in controversy. It is conceded that afterwards the road was constructed in full compliance with the act of congress and the act of the state of Kansas, and that it was duly approved and accepted by the proper authorities. When its line was definitely fixed it appeared that of the lands lying within the limits of 10 miles thereof, many sections and parts of sections had been sold by the United States, and to many the right of pre-emption and homestead settlement had attached, and that some had been reserved by the United States for other purposes, thus greatly diminishing the quantity which would otherwise be covered by the grant. To make up the deficiency the secretary of the interior selected the lands in controversy, taking them from alternate sections designated by odd numbers, nearest the tiers of sections within the 10-mile limit, but outside of that limit and within 20 miles of the road. These indemnity lands were certified to the state by the land department against the objections of the plaintiff, and the proper officers of the state in May, 1873, executed a patent of them to the company.

The question, therefore, for determination is whether the grant to Kansas, by the act of congress of March 3, 1863, covered the title to these indemnity lands. We are clear that it did not. It granted only alternate sections, designated by odd numbers, within the limit of 10 miles, and from them certain portions were to be excepted. For what was thus excepted other lands were to be selected from adjacent lands, if any then remained, to which no other valid claims had originated. But what unappropriated lands would thus be found and selected could not be known before actual selection. A right to select them within certain limits, in case of deficiency within the 10-mile limit, was alone conferred, not a right to any specific land or lands capable of identification by any principles of law or rules of measurement. Neither locality nor quantity is given from which such lands could be ascertained. If, therefore, when such selection was to be made, the lands from which the deficiency was to be supplied had been appropriated by congress to other purposes, the right of selection became a barren right, for until selection was made the title remained in the government, subject to its disposal at its pleasure. The grant to the Kansas Pacific Company by the act of 1862 carried the odd sections within the limit of 10 miles from its road, and by the act of 1864 such sections within the limit of 20 miles. The act of 1862 is to be construed, as already said, as though the larger number were originally inserted in it, and, with the exceptions stated, it must be held to pass the title to the grantee as against the United States, and against all persons not having acquired that title previous to the amendment. The grant to Kansas, as stated, conferred only a right to select lands beyond 10 miles from the defendant's road, upon certain contingencies. It gave no title to indemnity lands in advance of their selection. By the very terms of the grant to Kansas, as we have seen, there was excepted from it any sections or parts thereof which the United States had sold or reserved for any purpose, or to which a pre-emption or homestead settlement had attached before the line of the road or its branches had been definitely fixed. And the secretary was required to select, for like purposes, outside of the limits of the grant, as much lands, says the act, 'as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of pre-emption or homestead settlements have attached as aforesaid.' The reservation 'for any purpose' is thus made to cover not merely a specific reservation in terms for the uses of the United States, but any appropriation of the lands by the government.

The line of the road of the Atchison, Topeka & Santa Fe Company was not definitely fixed until 1866. Until then the appropriation of lands, even within the limits of the grant, much less so of lands without them, was in no respect an impairment of its rights. The appropriation outside of those limits only lessened the number of sections from which the secretary might under certain contingencies have the right to select indemnity lands; it had no other effect. The order of withdrawal of lands along the 'probable lines' of the defendant's road made on the nineteenth of March, 1863, by the commissioner of the general land-office, affected no rights which, without it, would have been acquired to the lands, nor in any respect controlled the subsequent grant. And besides, it only purported to apply to lands within the 10-mile limit, and the lands in controversy lie outside of it, although the court below, overlooking the stipulation of the parties, stated the fact to be otherwise; an error which probably misled it to its conclusion.

It follows from the views expressed that the plaintiff, the Kansas Pacific Railway Company, under the acts of congress of 1862 and 1864, by a compliance with all their provisions in the construction of its road, acquired the title to the lands in controversy, and has accordingly a right to record evidence of it in the form of a patent. The decree of the court below must therefore be reversed and the case remanded, with directions to enter a decree adjudging that the title to the lands in controversy passed to the plaintiff under the acts of congress of 1862 and 1864; and that the defendant execute to the plaintiff a conveyance of its claim and interest therein; and it is so ordered.


text: Talk:Kansas Pac Ry Company v. Atchison, Topeka & Santa Fe Railroad Company/Opinion of the Court


text:
Richardson v. Traver

F. C. Ingalls, for appellant.

A. McCoy, for appellee.

WAITE, C. J.

title: Richardson v. Traver


text: Talk:Richardson v. Traver

title: Talk:Richardson v. Traver