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Page:United States Statutes at Large Volume 45 Part 1.djvu/1625

 1574 Yuma Reservation, Calif. . Advancing charges, on land s of, and in Ariz. Vol.36,p.1063. Fo rt Hall Reserva- tion, Idaho. Operation. Koo te nai Indians, Idaho. Drainage of all ot- ments. Ante, p. 938. R.E. Hansen. Reimbursement. Post, p. 2027. Sac and Fox Indians in Iowa. Drainage of lands . Provisos. Reim burs ement fro m proc eeds of l ands bene- fited. Lien agai nst, but not enforceable, while title in Indians. Lands sold subject to lien. Fort Belknap Reser- vat ion. Operating, etc. Vol. 36, p. 270. Flathead Reserva- tion, Mont. Construction. Vol. 44, pp. 464, 945. Ante, p. 212. Balances available. Proviso. Power plant balance may be used for power distributing system . Ante, p. 212. Fo rt Peck Reserva- tion, Mont. Operating divisions of systems on. SEVENTIETH CONGRESS. SESS. II. CFI. 705. 1929 . equipment therefor to provide water for the irrigation of lands and for dom estic purpose s for the San Carlos Indian s and shall re main available for the fiscal years 1930 and 1931. For reclamation and maintenance charges on Indian lands within the Yuma Reservation, California, and on ten acres within each of the eleven Yuma homestead entries in Arizona, under the Yuma reclamati on project, $3 3,800, reimbu rsable as pro vided by the A ct of March 3, 1911 (36 Stat., p . 1063). For improvements, maintenance, and operation of the Fort Hall irrigation system, Idaho, including $4,500 for replacement of build- ing s dest royed by fir e, wh ich sh all be imme diatel y avai lable, $28,500. For the purpose of carrying out the provisions of the Act approved May 29, 1928 (45 Stat ., p. 938), to provide reclamation of Kootenai Indian allotments in Idaho within the exterior boundaries of drainage districts that may be benefited by drainage works of such districts, $114,000, reimbursable as provided for and subject to the provisions and conditions of such Act. To reimburse R. E. Hansen for destruction of crops, $2,480.65, payable out of funds received from the sale of stored water in the Blackfoot Reservoir, Fort Hall irrigation project, Idaho, as author- ized by the Act of May 29, 1928 (45 Stat., pt. 2, p. 327). For the construction of a drainage system for lands of the Sac and Fox Indians in Iowa, $10,000 : Provided, That said amount or so much thereof as may be used in the construction of the drainage system sh all be reimbur sed to the Un ited States f rom the procee ds of leases covering the Indian lands benefited by the drainage work, and the Secretary of the Interior is hereby authorized to lease such lands for periods not in excess of five years, and the proceeds derived therefrom shall be used for payment of the cost of said work and the balance placed in the Treasury to the credit of the Indians, to bear interest at the rate of 4 per centum per annum : Provided fur- ther, That there is hereby created against such lands a first lien which lien shall not be enforced during the period that the title to such lands remains in the Indians, but that in case of sale of any such lands said l ands s hall be sold s ubject to the first lien h erein c reated, and a recital of said lien shall be made in all patents or deeds issued for any lands benefited under the drainage ditch. For maintenanc e and operati on, including repairs of th e irriga- tion systems on the Fort Belknap Reservation, in Montana, $15,000, reimbursable in accordance with the provisions of the Act of April 4, 1910 (36 Stat., p. 270). The unexpended balance of the appropriation for continuing construction of the irrigation systems on the Flathead Indian Reser- vation, Montana, contained in the Act of May 10, 1926 (44 Stat ., pp . 464-466), as continued available in the Act of January 12, 1927. (44 Stat ., p . 945), and the Act of March 7, 1928 (45 Stat ., p . 212), shall remain available for the fiscal year 1930, subject to the reimbursable and oth er conditions and provision s of said Act s : Pro vid ed, T h at not more than $10,000 of the unexpended balance of $395,000 made available by the Act of March 7, 1928 (45 Stat ., p . 212), for the construction of a power distributing system and for purchase of power, or for construct ion of power plant, shall be available f or operation and maintenance, and $40,000 shall be available for con- struction of laterals near Ronan. For maintenance and operation, until January 1, 1930, of the Poplar River, Little Porcupine, and Big Porcupine divisions of the irrigation systems on the Fort Peck Indian Reservation in Mon- tana, by and under the direction of the Commissioner of Indian

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text:
Refeld v. Woodfolk

THIS was an appeal from the Circuit Court of the United States for the district of Arkansas.

The case is fully stated in the opinion of the court.

It was submitted upon printed arguments by Mr. Pike for the appellants, and Mr. Meigs for the appellee.

The arguments upon both sides took a wide range, and included many points which would have been applicable, if a suit had been brought at law upon the covenant of warranty, such as that there could be no recovery, except for nominal damages, until the vendee was evicted. With respect to the interposition of a court of equity in a case situated like the present, Mr. Pike said:

The chief question in this case is a perfectly simple one. Woodfolk proposed to purchase certain land of Notrebe; he was informed that it was mortgaged to the Real Estate Bank, which was insolvent. The mortgage was of record; and the charter of the bank, showing the liability under the mortgage, was a public law of the land. It was totally uncertain what would be the ultimate liability under the mortgage. It was meant to cover the share of Notrebe and Cummins in any deficit of the assets of the bank. Whether there would be any deficit or not was not known. Notrebe told Woodfolk all he knew about it; that the bank attorney thought there would not. All the sources and means of information on that subject were as open to Woodfolk as Notrebe; and knowing, or having the means of knowing, all that anybody could know, he purchased the land at the low price of $10.50 per acre, and took a bond from Notrebe, to make him 'a good and sufficient conveyance in fee simple, with covenant of warranty.'

Can he, after occupying the land several years, and paying up the purchase money, when it is still as uncertain as ever, what, if any, will be the ultimate liability under the stock mortgage, claim at the hands of a court of equity that it shall compel Notrebe's heirs to indemnify him against such contingent liability? Or will it not be held that he made a chancing bargain, an aleatory contract, getting the land at the price he did on account of the contingent encumbrance upon it, and taking the risk of that encumbrance? That is the whole question.

(Mr. Pike then proceeded to argue that the words of the covenant did not bind Notrebe to make a conveyance with a covenant against encumbrances.)

The quia timet jurisdiction of the court of equity is one which the court has often exercised; but it will be extremely tender in so doing, because it materially varies the agreement of the parties at the time of the transaction.

Flight v. Cook, 2 Ves. Sen., 620.

And the doctrine seems to be well settled, that where a deed has been executed, and the only covenants in it are for quiet enjoyment or of warranty, and so long as there has been no eviction, actual or constructive, equity will, as a general rule, refuse to entertain a bill for relief, either by way of enjoining the purchase money, or a fortiori, by rescinding the contract; and, although it has been at times intimated that the presence of a covenant for seizin may in some cases fortify the position of the purchaser, it does not appear that the cases generally draw much distinction between the different covenants for title.

Rawle on Cov. for Title, 679, and the many cases cited.

If this contract is still executory, then in that case, as a general rule, the purchaser is entitled to a good title, free of encumbrances. He cannot be forced specifically to perform, unless such title can be made. If sued for the purchase money, he may enjoin its collection, or compel the removal of encumbrances. That is the general rule. But the question here is, what relief has he in equity, if, making the bargain, knowing of an encumbrance, he pays up the purchase money without requiring it to be removed, and when it is of the nature of the one here complained of?

It is not a question here, whether he could be compelled to perform his contract. He has performed it; he is in possession; has used the land and enjoyed its issues now for nearly ten years. He does not offer to give it up. He protests against doing so. If he had all the covenants he could possibly demand, there has been no breach of any of them that would entitle him to damages; and therefore he would be entitled to recover only nominal damages at law, and would have no relief in equity; that is too clear to be denied. Rawle, 680. How can be be entitled to any more relief, because he has not yet taken a deed? He has the same covenants he would have in a deed, and they are as effectual to protect him. The difference between a contract executory and one executed by deed is, that in case of the latter, if he had no covenants, he would have no remedy; and if he had them, he must look to them. In the former case, he might resist a demand of performance, and object to taking the property or to paying the price; but when he has paid, and is in possession, it makes no difference whether the contract is executed or executory. Having chosen to perform, all he is entitled to is his conveyance. If he could defend at law against payment of the purchase money, wholly or in part, he might have relief in equity; but he cannot be sued for what he has paid.

In Anon, 2 Freem., 106, a case was cited 'where a purchaser brought his bill to be relieved where encumbrances were concealed; but was dismissed; for he ought to have provided against it by covenants; but it was said by Rawlinson, that if the purchaser had in that case had his money in his hand, this court would have helped him, but not after he had paid his money.'

Again: We have sought in vain for a case where a bill, asking indemnity alone, has been sustained, or even heard of, filed by a purchaser when that indemnity was sought against an encumbrance by mortgage, well known to the purchaser at and before the time of purchase, and where he had fully paid the purchase money without requiring indemnity or complaining of the encumbrance.

It is a mere attempt 'to amend the plaintiff's security in equity; to give him a better remedy for his money in chancery than he had provided for himself by the condition of the bond which he took.' There was no fraud in Notrebe; he told Woodfolk all that he himself knew about the encumbrance. Woodfolk made the purchase and took the bond with his eyes open. That he has come to think the encumbrance more serious than he imagined, is no reason why a court of equity should mend or increase his security; that is not its province. The heir of Notrebe is in no default; being a minor, she could not convey. The bill is a plain attempt to get the court of chancery to mend Woodfolk's bargain, and we see no better ground to assign for the application, than 'that chancery ought to suffer no man to have an ill bargain.'

A bill filed for compensation singly cannot be maintained.

Newham v. May, 13 Price, 749.

The jurisdiction of equity in cases of compensation is only incidental and ancillary to that of giving relief by enforcing the performance of contracts for the sale of real property. Id.

The court will give it when title to a part of the property fails, and it decrees that the purchaser shall accept, or he agrees to accept, that to which there is good title.

Besant v. Richards, 1 Taml., 509.

Pratt v. Law, 9 Cranch, 458, &c.

And there is certainly no ground on which to decree an indemnity against an encumbrance that was known to the purchaser when he made his contract, and to protect himself against which, he asked no provision to be put into the contract. The court will not insert that provision, when he himself did not think it worth his while to do so. He made his contract as he pleased, and must be content with it. If he had not known of the encumbrance, the case would be very different.

Mr. Meigs said that the present bill was filed to have a specific performance of Notrebe's covenant to make the complainant a good and sufficient conveyance in fee simple, if Notrebe's heirs can perform it, and if they cannot, that what title they have may be divested out of them, and vested in complainant, with indemnity against the mortgage.

Mr. Meigs then cited a number of cases in illustration of these principles, and then proceeded to consider the interference of a court of equity.

It is familiar law, that the general principles of the contract of sale, both in this country and in England, recognise and enforce, while it is still executory, as in this case, the right of the purchaser to a title clear of defects and encumbrances.

Rawle on Covenants, 566.

Burwell v. Jackson, supra.

But, practically, how is this to be done, in a case circumstanced as the one in hand? Before the payment of the purchase money, we have seen that it can be done by an abatement of the purchase money to an amount equal to the cost of removing the encumbrance. And the vendor must discharge an encumbrance, not disclosed to the vendee, whether he has or has not agreed to covenant against encumbrances, before he can compel the payment of the purchase money.

Sugden, chap. 12, sec. 2, par. 2.

Although the purchase money has been paid, and the conveyance is executed, yet if the defect do not appear on the face of the title deeds, and the vendor was aware of the defect, and concealed it from the purchaser, or suppressed the instrument by which the encumbrance was created, or on the face of which it appeared, he is, in every such case, guilty of a fraud; and the purchaser may either bring his action on the case, or file his bill in equity.

Sugden, chap. 12, sec. 2, par. 17.

In Sergeant Maynard's case, he was denied relief, because he had parted with his money, and taken a bond for repayment of it, on a certain condition.

2 Freeman's Rep., 2.

In our case, Woodfolk took a bond to make him a good and sufficient conveyance in fee, and then paid the purchase money. And afterwards he discovers that the land is encumbered for more than its entire value, the encumbrance having been represented to him as of no validity or force, and its true nature sedulously concealed, and the deed not even shown.

Now, in these circumstances, he is entitled, unquestionably, to a conveyance of the fee simple that shall be effectual. Will the court content itself by simply decreeing that a deed shall be made, formally conveying the fee, but leaving the land under the burden of the encumbrance; or divesting what title there is in Notrebe's heir, and vesting it in Woodfolk?If the court be of opinion that Woodfolk is entitled to 'an operative conveyance, one that carries with it a good and sufficient title to the land conveyed,' as Kent said in Clute v. Robinson, 2 Johns. R., 612, already cited, there seems to be no practical way of effecting this, but by compelling Notrebe's heir and representatives to extinguish the mortgage, or to buy so many State bonds as shall be equal to the stock bond.

It is plain that the heir of Netrebe cannot make a good and sufficient conveyance in fee simple, without, in some way releasing the estate from the mortgage; and it is equally plain that there is no way of releasing the estate from the mortgage but by paying a sum of the State bonds equal to the stock. And Woodfolk might insist upon this; but if he is willing to take such title as can be decreed out of the heir, with an indemnity against the mortgage, that is a relief which is within the power of a court of chancery. The subject will be found pretty fully discussed in Sugden on Vendors and Purchasers, chap. 10, sec. 2. And the weight of the cases there stated and commented on cannot certainly be regarded as weakened in the least by what is reported to have been said by Lord Eldon in Balmorno v. Lumley, 1 Ves. and Beam., 225, cited by Sugden in chap. 7, sec. 2, par. 36. The case, when examined, cannot possibly have the slightest weight, seeing that it is reported in so crude a manner as to leave us wholly in the dark as to its circumstances.

The indemnity which the heir of Notrebe seems bound to make will be, as already suggested, the substitution of another estate instead of the land sold to Woodfolk, to be held by a trustee, to save him harmless against the mortgage. When we ask this, we only ask that Notrebe's heir shall assume the burden of Notrebe's debt, and relieve the complainant against liability for it-a liability which, in his opinion, is not merely visionary, but is extremely likely to embarrass and harass him in 1861, only a year hence.

See Halsey v. Grant, 13 Vesey, 73.

Horniblow v. Shirley, 13 Ves., 81.

Cassamajor v. Strode, Wilson's Ch. R., 428.

Warren v. Bateman, 1 Flannegan and Kelly, 443.

Mr. Justice CAMPBELL delivered the opinion of the court.

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title: Refeld v. Woodfolk


text: Talk:Refeld v. Woodfolk

title: Talk:Refeld v. Woodfolk


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1626

 SEVENTIETH CONGRESS. SEss. II. CH. 705. 1929 . 1575 Affairs, incl uding the pu rchase of an y neces sary r ights or pro perty, $3,000 (reimbursable). Blackfeet Reserva- For improvement, maintenance, and operation of the Two Medi- ti oP eaon Mo nt g divisions tine and Badger-Fisher divisions of the irrigation systems on the of systems on. Black feet India n Re serva tion in M ontan a, by and unde r the dire c- tion of the Commissioner of Indian Affairs, including the purchase of any necessary rights or property, $18,000 (reimbursable). Cr ow Reservation, F or ma inten ance and opera tion of t he ir rigat ion syste ms on the Mont . Operating able to the Two Leg ging s Wa ter Use rs' Asso ciat ion and Boz eman Trail Ditch Company, Montana, properly assessable against lands allotted to the Indians irrigable thereunder, $1,000, to be reimbursed under such rules and regulations as may be prescribed by the Secretary of the Interior. Pyramid Lake Res- For operation and maintenance of the irrigation system on the ervation, Nev. Pyramid Lake Reservation, Nevada, $4,000, reimbursable from any Operating system on. funds of the Indians of this reservation now or hereafter available. For payment of annual installment of reclamation charges against Ne ewlands project, Paiute Indian lands within the Newlands reclamation project, Pa aying na5ones on Nevada, $3,461 ; and for payment in advance, as provided by district law, of ope ration and m ainten ance a ssessme nts, i ncludi ng ass essmen ts for the operation of drains to the Truckee-Carson irrigation district, which district, under contract, is operating the Newlands reclamation project, $8,000 ; in all, $11,461. Laguna and Acoma For improvement, operation, and maintenance of the irrigation Ind ians, N. Mex. 5 Operating system for. system for the Laguna and Acoma Indians in New Mexico, $3,000, reimbursable by the Indians benefited, under such rules and regula- tions as the Secretary of the Interior may prescribe. Navajo Reservation, N. Mex. For improvement, operation, and maintenance of the Hogback project 011. g Hog back irri gati on pr oject on that part of th e Na vajo Reser vati on in New Mexico under the jurisdiction of the Northern Navajo Agency, $10,000, reimbursable under such rules and regulations as the Sec- retary of the Interior may prescribe. New Mexico pueblos. For repair of damage to irrigation systems resulting from flood agRepair ngi flood dam - and for flood protection of irrigable lands on the several pueblos in tems on, New Mexi co, t he un expe nded balan ce of the appr opria tion for this purpose for the fiscal year 1929 shall be available for the same pur- pose for the fiscal year 1930. Kl ama th Reserva- For improvement, maintenance, and operat ion of miscellaneous tion, Oreg. 7 Operating projects irrigation projects on the Klamath Reservation, $5,000, to be paid on, from trib al f unds. from the funds held by the United States in trust for the Klamath Indians in the State of Oregon, said sum, or such part thereof as may be us ed, to be reimburs ed to the tribe u nder such rules an d regulat ions as the Secretary of the Interior may prescribe. Un com pah gr e,, etc ., For c ontin uing oper ation and main tenan ce an d bet term ent o f the sites, Utah. Continuing irrigation irrigation system to irrigate allotted lands of the Uncompahgre, to a llot ments of. Uintah, and White River Utes in Utah, authorized under the Act Vol.34,P. 375. of June 21, 1906 (34 Stat ., p . 375), $5,000, to be paid from tribal funds held by the United States in trust for said Indians, said sum to be reimbursed to the tribal fund by the individuals benefited under such rules and regulations as may be prescribed by the Secretary of the Proviso. Interior : Provided, That not to exceed $500 of the amount herein Ditch rider's site. appropriated shall be available for the purchase of a ditch rider's site on the project. a Reservation, For operation and maintenance, including repairs, of the Top- Rshy penish-Simcoe irrigation unit, on the Yakima Reservation, Washing- isb s aeonunit on pen. ton, reimbursable as provided by the Act of June 30, 1919 (41 Stat ., Vol.41,p.28. p. 28), $1,000.

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text:
Refeld v. Woodfolk/Opinion of the Court

The appellee (Woodfolk) filed this bill in the Circuit Court against the executors and heirs of Frederick Notrebe, deceased, and the trustees of the Real Estate Bank of Arkansas.

He represents that, in 1845, he concluded an agreement with Notrebe for the purchase of fourteen hundred and seventy-eight acres of unimproved land in Arkansas, for fifteen thousand five hundred and eighteen dollars, a portion payable in cash, and the remainder in instalments, secured by his notes and bond. Notrebe and his wife obligated themselves, when the payment should be completed, to convey to him the land in fee simple, 'by a good and sufficient deed, with general warranty of title, duly executed, according to law.'

The appellee has established a plantation upon the land, and has greatly improved its value. He completed the payment in 1850, when the executor of Notrebe offered a deed executed by his widow and heir-at-law, in which there was a covenant of warranty, in fulfilment of the agreement of his testator. The appellee declined to accept this, because the land had been mortgaged to the Real Estate Bank of Arkansas, in 1837, by Notrebe, to secure the payment of his note for thirty thousand dollars, payable in October, 1861, with five per cent. interest annually, which Notrebe had given for three hundred shares of the stock of that bank. The appellee charges that the existence of this mortgage was concealed from him until after the conclusion of his agreement, and that afterwards he was deceived by misrepresentations of the condition of the title, until he had paid the whole of the purchase money. He prays that the title be examined, and that the defendants be required to remove the encumbrance, or to give him effectual indemnity against it, and that the distribution of the estate of Notrebe be restrained until this be done.

The defendants answered the bill, and have successfully repelled the imputations of fraud and misrepresentation, but admit the existence of the mortgage, and fail to impair its validity.

The Circuit Court, upon the pleadings and proofs, declare that the 'entire transaction' between Notrebe and the appellee 'was bona fide and free from fraud,' and that the latter had notice of the mortgage as a subsisting and operative encumbrance upon the land before he concluded his contract; but that Notrebe had agreed to convey the land free of encumbrance and with warranty of title, and that the vendee is entitled to the performance of that contract; but that the debt of the decedent, not being at maturity, and of a character not to be ascertained before that time, all that could be done would be to provide an indemnity against the peril it created.

The court proceed to require of the executors to remove the encumbrance whenever it can be done, and then to convey the land by a deed with warranty, and with the relinquishment of dower by the widow; and, meanwhile, that they should deposit with the clerk of the court bonds of the State of Arkansas, for the amount of Notrebe's note and the interest, ($61,500,) to be held and appropriated under the order of the court as indemnity, or that the executors might, in part or for the whole, convey to the clerk unencumbered real estate of the same value, for the same object and under the same conditions.

The Real Estate Bank was established on a loan by the State of Arkansas of its bonds, which the bank sold to form its capital. The principal and interest of these bonds were to be paid by the bank; and its means of doing so were afforded by the securities obtained from the loan of its capital and profits of business, and the bonds and mortgages of the stockholders, to the extent of their subscription of stock. Each stockholder having given a bond and mortgage to the bank corresponding to the pro rata amount of the State bonds issued to the bank, as compared with the stock, and which were pledged for the payment of the State bonds, the sum to be paid by any shareholder on this debt depends upon the degree of the insolvency of the bank. In case of the loss of its entire capital, the stockholder becomes liable to pay his entire debt.

The pleadings and proofs in this case show that the bank has suffered a loss of a portion of its capital, but no data are afforded to ascertain the amount of the loss. The decree of the Circuit Court assumes that the loss may be total; and the indemnity awarded was determined as if the fact would correspond with the possibility. This appeal was made to test the validity of this decree.

A court of chancery regards the transfer of real property in a contract of sale and the payment of the price as correlative obligations. The one is the consideration of the other; and the one failing, leaves the other without a cause. In Ogilvie v. Foljambe, (3 Mer., 53,) Sir William Grant says: 'The right to a good title is a right not growing out of the agreement of the parties, but which is given by law. The purchaser insists on having a good title, not because it is stipulated for by agreement, but on the general right of a purchaser to require it.'

Upon this principle, a vendor is allowed a lien or privilege for the price of the property against the vendee and his assigns; and the vendee is permitted to appropriate the purchase money, to exonerate his estate from a lien or encumbrance, and in some cases to compensate for original defects in the estate, as respect its quantity, quality, or extent of vendor's interest therein.

The cases cited on the part of the appellee support this doctrine, and confirm the argument that he was entitled, under his contract, (having no reference to extrinsic circumstances,) to the fee simple estate, without diminution. Galloway v. Findley, 12 Pet., 264; Burwell v. Jackson, 5 Seld., 535; Cullum v. Bank of Ala., 4. Ala. R., 21.

But such circumstances may very materially modify the situation of the parties, and indispose that court to interfere between them, even in cases within the jurisdiction of the court. If the contract has been executed by the delivery of possession and the payment of the price, the grounds of interference are limited by the covenants of the deed, or to cases of fraud and misrepresentation. 'The cases will show,' say this court, 'that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or misrepresentation; and that in such a case he must seek his remedy at law, on the covenants in his deed; that if there is no fraud and no covenants to secure the title, he is without remedy, as the vendor, selling in good faith, is not responsible for the goodness of his title beyond the extent of the covenants in his deed. Patton v. Taylor, 7 How., 132.

This rule, experience has shown, reconciles the claims of convenience with the duties of good faith. The purchaser is stimulated to employ vigilance and care in reference to the things as to which they will secure him from injustice, while it affords no shelter for bad faith on either part.

The intermediate cases-those in which the parties have advanced in the completion of their contract, and are still willing to abide by it, and there arises a real inability or a wellfounded apprehension of danger, in that stage of their proceedings, to the completion of the contract-have created much embarrassment. Some of these cases have been settled upon terms of compensation, in which the court of chancery has exercised a doubtful jurisdiction, in modifying the conditions of the contract according to the supervening circumstances. White v. Cuddon, 8 Cl. and Fin., 766; Thomas v. Dering, 1 Keen, 729; Dart, Vend. and P., 499, et seq.

We have met with no case in which a vendee, in possession under a contract of purchase or a deed with covenants, has been permitted to reclaim the purchase money already paid, to be held as a security for the completion or protection of his title. The Roman law permitted the vendee to retain the purchase money in his hands, as security against an impending danger to the title; but denied a suit for restitution, after payment, for that cause. 'We must not,' says Troplong, 'hastily break up a contract which the vendor may at last be able to fulfil. There is no analogy between the case in which the purchaser is allowed to retain the price as security, and that in which he would force the vendee to restore it for that purpose. Between the right of retention and that of restitution of the price, there is the distance between the statu quo and rescission. Trop. de Vente, No. 614; Dalloz Juris., gen. tit. de Vente, sec. 1170.

The decree of the Circuit Court does not direct the restitution of the purchase money to the vendee, nor its application by the vendor to assure the attainment of the object of the contract; but it sequestrates property of the vendor of four times the amount, to be held or disposed of by the court in its discretion, to assure the accomplishment of that object. In the case of Milligan v. Cooke, 16 Vesey, 1-14, Lord Eldon made an order that the purchaser should be compensated for the difference in the value between the title contracted for and that exhibited; and if that difference could not be ascertained, the master was directed to settle the security to be given by the defendant as indemnity to the purchaser against disturbance or eviction; and a similar order was made in Walker v. Barnes, 3 Mad., 247. But there were conditions in the contract that authorized the order.

In Balmorno v. Lumley, 1 V. and B., 224, and Paton v. Brebner, 1 Bligh. P. C., 42, the cases in which such a relief could be granted appear to be limited to that class. In the latter case Lord Eldon said: 'This suit is in substance or effect (allowing for dissimilarities between English and Scotch proceedings) in the nature of a suit in a court of equity in England for the specific performance of a contract. In such a suit, if it turns out that the defendant cannot make a title to that which he has agreed to convey, the court will not compel him to convey less, with indemnity against the risk of eviction. The purchaser is left to seek his remedy at law, in damages for the breach of the agreement.'

In Aylett v. Ashton, 1 M. and C., 309, the master of the rolls, upon the authority of the cases cited, said: 'Parties no doubt may contract for a covenant of indemnity; but if they do not, the court cannot compel a party to execute a conveyance and to give an indemnity.' To the same effect is Ridg way v. Gray, 1 Mac. and G., 109.

The appellee does not seek to rescind this contract; not does he disclose any imminent peril of disturbance or eviction, as the effect of the existence of the mortgage. The record shows that the widow and heir of Notrebe, whose covenant of warranty has been offered to the appellee, are either of them able to respond to the damages that would be awarded upon the breach of that covenant. The appellee had notice of this encumbrance when he made and performed his agreement of purchase, and did not stipulate for any additional indemnity to that resulting from the covenant of warranty. We must therefore conclude that he was willing to abide the settlement of the affairs of the Real Estate Bank, and to rely upon the protection afforded by the covenants in his deed. We have no reason to suppose that the vendor would have consented to deposit in the hands of a stranger four times the value of the property he sold, as a security for the fulfilment of his contract; nor can we superadd this to the other obligations he has assumed.

Our opinion is, that the decree of the District Court is erroneous, and must be reversed.

The deeds tendered seem to be in conformity with the stipulation of the vendor in the agreement. The vendee may elect to take these, or he may retain the agreement. In either case, his bill will be dismissed with costs; and for this purpose the cause is remanded.

title: Refeld v. Woodfolk/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1627

 1576 Reimbursing reclam- ation fund for furnish- ing stored water to re serva tion lands. Vol. 38, p. 604. Wapato project. Operating Satus unit gravity project. Wind River Reser- vation, Wyo. Extending irrigation to additional Indian lands, etc. Un exp end ed Indi an balances covered into the Treasury. Santa Fe, X. Mex ., Sc hool. Vol.39,p.144, Yakima Reservation, Wash. Diversion dam, etc. Vol.40,p. 588. Fort Belknap Reser- vation, Mont. Enrollment, allot- ment, etc. Vol. 41, p. 1359. E duc ati on. Support of schools. For the s upport of Indi an day and in dustrial scho ols not other- wise provided for, and other educational and industrial purposes dumb, in connection therewith, $2,850,000 : Provided, That not to exceed $10,000 of this appropriation may be used for the support and edu- cation of deaf and dumb or blind or mentally deficient Indian chil- dren : Provided further, That $3,500 of this appropriation may be used for the education and civilization of the Alabama and Cou- Boardingschools with diminished at- shatta Indians in Texas : Provided further, That, all reservation and ten dance discon tinue d. nonre servation boa rding schools with an avera ge attendance in any year of less than forty-five and eighty pupils, respectively, shall be discontinued on or before the beginning of the ensuing fiscal year. The pupils in schools so discontinued shall be transferred first, if possible, to Indian day schools or State public schools; second, to adjacent reservation or nonreservation boarding schools, to the limit of the capacity of said schools : Provided further, That all day schoo ls with an av erage attendan ce in any yea r of less tha n eight shall be discontinued on or before the beginning of the ensuing Moneys returnedinto fiscal year : Pro vide d fu rthe r, That all moneys appropriated for any school discontinued pursuant to this Act or for other cause shall be returned immediately to the Treasury of the United States
 * Pro..

vided further, That not more than $400,000 of the amount herein appropriated may be expended for the tuition of Indian children enrolled in the public schools under such rules and regulations as the the Treasury. Provisos. Deaf and blind, etc. Alabamas and Cou- shattas, Tex. Pupils transferred. Day schools discon- tin ued. Education in public schools. SEVENTIETH CONGRESS. SESS. II. Cu. 705 . 1929 . Fo r reim bursem ent to the reclam ation fund the pr oporti onate expense of operation and maintenance of the reservoirs for furnishing stored water to the lands in Yakima Indian Reservation, Washing- ton, in accordance with the provisions of section 22 of the Act of August 1, 1914 (38 Stat ., p . 604), $11,000. For operation and maintenance of the Satus unit of the Wapato project that can be irrigated by gravity from the drainage water from the Wapato project, Yakima Reservation, Washington, $1,000, to be reimbursed under such rules and regulations as the Secretary of the Inte rior may pre scri be. For the extension of canals and laterals on the ceded portion of the Wind River Reservation, Wyoming, to provide for the irrigation of additional Indian lands, and for the Indians' pro rata share of the cost of the operation and maintenance of canals and laterals and for the Indians' pro rata share of the cost of the Big Bend drainage project on the ceded portion of that reservation, and for continuing the work of cons truc ting an irri gati on s yste m wi thin the dim inis hed reservation, including the Big Wind River and Dry Creek Canals, and including the maintenance and operation of completed canals, $5,000, reimbursable as provided by existing law, UNEXPENDED BALANCES The following unexpended balances of the appropriations herein- after enumerated shall be covered into the Treasury and carried to the surplus fund immediately upon the approval of this Act Assembly hall and gymnasium, Indian School, Santa Fe, New Mexico, Act of May 18, 1916 (39 Stat., p . 144), $113 .19; Diversion dam, distribution and drainage system, Yakima Reser- vation, Washington (reimbursable), Act of May 25, 1918 (40 Stat., p. 588), $428.60; Enrollment, allotment, and so forth, Fort Belkna Reservation, Montana (reimbursable), Act of March 3, 1921 (41 Stat., p. 1359). $3,798 . 45; In all, $4,340.24. EDUCATION

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text: Talk:Refeld v. Woodfolk/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1628

 SEVENTIETH CONGRESS. SEss. II. Cu. 705. 1929. Secretary of the Interior may prescribe, but formal contracts shall not be re uired, for compliance with section 3744 of the Revised Statu tes U. S. C., p. 1310, sec. 16), for payment of tuition of In children in public schools or of Indian children in schools for the deaf and dumb, blind, or mentally deficient : P rovi ded further, That not less than $6,500 of the amount herein ap p ropriated shall be available only for purchase of library books : And provided further, That not to exceed $10,000 of the amount herein appropriated shall be available for educating Indian youth in stock raising at the United States Range Livestock Experiment Station at Miles City, Montana. For the support of Indian day and industrial schools, and other educational and industrial purposes in connection therewith, other than among the Five Civilized Tribes, there shall be expended from Indian tribal funds and from school revenues arising under the Act of May 17, 1926 (44 Stat ., p. 560), not more than $850,000, including the following amounts from the principal sum on deposit to the credit of the Chippewa Indians in Minnesota, arising under section 7 of the Act approved January 14, 1889 (25 Stat ., p. 645) $10,000 for the construction, equipment, and maintenance of public schools in connection with and under the control of the public-school system of the State of Minnesota, said school buildings to be located at places contiguous to Indian children who are now without proper public-school facilities, and $40,000 for remodeling and repairing and $70,000 for operating the White Earth boarding-school plant for the Chippewa Indians of Minnesota : Provided, That not more than $7,50 0 of t he abo ve aut horiza tion of $850, 000 sh all be expen ded for new construction at any one school unless herein expressly authorized . For the support of schools and for tuition among the Five Civilized Tribes, there may be expended from tribal funds of such nations $250,000 as follows : Seminole Nation, $33,000 ; Chickasaw Nation, $22,000 ; Choctaw Nation, $195,000, of which latter amount there may be expended $7,000 for addition to kitchen and bakery and remodeling dining hall at Wheelock Academy, and $18,000 for audi- torium and gymnasium. and equipment, $15,000 for dining hall and kitchen and equipment, $10,000 for employees' building and equip- ment, and $3,500 for employees cottage, at Jones Male Academy. For colle ction and tran sport ation of pupil s to and from India n and public schools, and for placing school pupils, with the consent of their parents, under the care and control of white families quali- fied to give them moral, industrial, and educational training, $90,000 : Provided, That not exceeding $7,000 of this sum may be used for obtaining remunerative employment for such pupils and, when necessary, for payment of transportation and other expenses to their places of employment : Provided further, That when prac- tica ble su ch tra nsport ation and ex penses shall be ref unded and sh all be returned to the appropriation from which paid. The provisions of this section shall also apply to native Indian pupils of school age under twenty-one years of age brought from Alaska. For lease, purchase, repair, and improvement of school buildings, including the purchase of necessary lands and the installation, repair, and improvement of heating, lighting, power, and sewerage and water systems in connection therewith, $275,000 ; for construction of physical improvements, $365,000 ; in all, $640,000 : Provided, That not more t han $7 ,500 o ut of this a ppropri ation shall be exp ended for new construction at any one school or institution except for new construction authorized as follows : Chimopovy day school, Hopi Reservation, Arizona : For new schoolhouse, dining hall, kitchen, wash room, and toilet, $7,500 ; for electric-light plant, $1,000 ; in all, 1577 No formal contracts. R.S. sec.3744,p.738. U.S. Code, p.1310. Amount for library books. Education at Miles City L ivestock S ta- tion, Mont. Support of schools from I ndian moneys. Vol.44,p . 560 . Chip pewas in Mi n- nesota. Vol .25,p. 645. White Earth board- ing school. Proviso. New con struction ex - penses limited. Five CivilizedTribes . Tribal schools, etc ., from Indian funds. Wheelock Academy. Jones M ale Acad- emy. Coll ecting, etc ., pupils. Provisos. Obtaining empl oy- ment. Repa yment. Alask a pupils. School buildings. Lease, repairs, c on- struction, etc. Provisos. Construction limit. New construction at designated schools.

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1629

 1578 SEVENTIETH C ONGRESS. SESS. II. CH. 705 . 1929 . $8,500 ; Hoopa Valle y scho ol, Cali forn ia : For remodeling and improving girls' and boys' dormitories, $10,000 ; Ignacio boarding school, Colorado : For enlargement, including equipment, $90,000 ; Choctaws in Mississippi : For day-school plant, $10,000 ; Kiowa (Fort Sill) school, Oklahoma : For additions to girls' and boys' dormitories, including heating, toilets, and baths, $15,000 ; Cheyenne and Arapahoe school, Oklahoma : For enlarging g irls' and boys' dor- mitorie s, including equipment, $21,500 ; Uint ah boa rding schoo l, Utah : For dining hall and equipment, $15,000 ; Tulalip boarding school, Washington : For new dining hall and kitchen, including equipment, $13,500 ; Western Navajo boarding school, Arizona : For construction and equipment of a boys' dormitory, central heating plant, and mess hall, $125,000. Schools for Children For repair, improvement, replacement, or construction of addi- Arizonaan Service in tional public-school buildings within Indian reservations in Arizona, To be maintained by attended by children of employees of the Indian Service, to be State, equ ipped and ma intain ed by the S tate o f Ari zona, $25,000. Support, etc ., of design ated bo ard ing For support and education of Indian pupils at the following schools. boarding schools in not to exceed the following amounts, respectively Fort Mojave, Ariz. Fort Mojave, Arizona : For two hundred and fifty pupils, $65,000, for pay of superintendent, drayage, and general repairs and improvements, $15,000 ; for addition to hospital, $6,000 ; for lava- tory annexes, $6,400 ; for warehouse, $7,000 ; in all, $99,400 ; Phoenix, Ariz. Phoenix, Arizona : For nine hundred and seventy-five pupils, including .not to exceed $1,500 for printing and issuing school paper, $243,750 ; for pay of s uperintendent, drayage, an d general repa irs and imp rov emen ts, $25,000 ; for new hospital and equipment, $65,000 ; for ammonia co mpressor, $4, 000 ; in all, $3 37,7 50 ; Truxton canyon, Truxton Canyon, Arizona : For two hundred and fifteen pupils, Ari z, $55,900 ; for pay of superintendent, drayage, and general repairs and impro vements, $10,0 00 ; in a l l, $65, 900 ; For Theodore t Apache, Roosevelt, elt, Theodo re Roo sevelt Indi an Sch ool, F ort Ap ache, Arizo na : For four hundred and fifty pupils, $117,000 ; for pay of superintendent, dray age, a nd gen eral repair s and improv ement s, $20,000 ; in all, Sher man Institute, $137 ,000 . Riverside, Calif, Sherman Institute, Riverside, California : For one thousand pupils, including not to exceed $1,000 for printing and issuing school paper, $ 250, 000 ; for pay of superintendent, drayage, and general repairs and improvements, $18,000 ; in a l l, $268 ,000 ; Fort Bidwell, Calif. Fort Bidwell Indian School, California : For one hundred pupils, $28,500 ; for pay of superintendent, drayage, and general repairs and improvements, $8,000 ; in all $36,500 ; K am, Institute, Haskell Institute, Lawrence, Kansas : For' nine hundred pupil s, including not to exceed $1,500 for printing and issuing school paper, $225,000 ; for pay of superintendent, drayage, purchase of water for domestic purposes, and general repairs and improvements, including necessary drainage work, $27,000 ; for remodeling engineering plant, $25, 000 ; for the purchase of additional lands, $20,000 ; in all, $297,000 ; Mount Pleasant, Mount Pleasant, Michigan : For three hundred and seventy-five Mi ch, pupils, $97,500 ; for pay for superintendent, drayage, and general repairs and improvements, $15,000 ; for remodeling and repairing ho spi ta l, $1 0, 000 ; for new bo iler and boil er house, and repairs to heating, lighting, and water systems, $13,000 ; in all, $135,500 ; Pipestone,Mina « Pipestone, Minnesota : For three hundred pupils, $78,000 ; for pay of superintend ent, drayage, and general r epairs and im provements, Genoa, Nebr, $20,000, including $5,000 for commissary building ; in all, $98,000 ; Genoa, Nebraska : For five hundred pupils, $130,000 ; for pay of superintendent, drayage, and general repairs and improvements,

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1630

 SEVENTIETH CONGRESS. SEss. II. Cx. 705. 1929 . 1579 $18,000 ; for dairy barn and equipment, $4,500 ; for purchase of addi- tional land, $50,000, to be immediately available ; in all, $202,500 ; Carson City, Nevada : For four hundred and fifty pupils, $117,000 ; Carson City, Nev. for pay of superintendent, drayage, and general repairs and im- provements, $18,000 ; in all, $135,000 ; Albuquerque, N. Albuquerque, New Mex ico : For eight hund red a nd f ifty pupil s, Mex. $212,500 ; for pay of superintendent, drayage, and general repairs and improvements, $15,000 ; for remodeling and repairing employees' quarters, $5,000 ; for dairy building and equipment, $10,000 ; in all, $242, 500 . Santa Fe, New Mexico : For five hundred pupils, $130,000 ; for pay Santa Fe, N. Mex. of superintendent, drayage, and general repairs and improvements, $15,000 ; in all, $145,000. Charles H. Burke School, Fort Wingate, New Mexico : For Six Fort Charles ngat H. Burke , N. Mex, hundred pupils, $150,000 ; for pay of superintendent, drayage, and general repairs and improvements, $22,000 ; for dairy barn, $10,000 ; and for purchase of livestock, $10,000 ; in all, $192,000. Cherokee, North Carolina : For four hundred pupils, $104,000 ; Cherokee, N. c. for pay of superintendent, drayage, and general repairs and im- provements, $10,000 ; for horse barn, $3,000 ; in all, $117,000 : Pro- Paymen . t to India ns vided That not to exceed $90 of the appropriation of $10,000 for forlmp rovemen ts,etc ., on reserved lands. the purchase of additional land for school and other purposes, con- Vol. 43, p. 1157. tained in the Interior Department Appropriation Act approved March 3, 1925 (43 Stat ., p . 1157), is hereby made available until June 30, 1930, for comp ensat ing t he I ndian occu pant s of appro xi- mately six acres of land reserved for school purposes on the Chero- kee Indian Reservation, North Carolina, for their improvements and po ssesso ry rig hts ; Bismarck, North Dakota : For one hundred and twenty-five pupils, Bismarck, N. Dak. $35,625 ; for pay of superintendent, drayage, and general repairs and improvements, $7,000 ; for em ployee 's cot tage, $4,750 ; in a l l, $47,375 ; Fort Totten, N. Dak. Fort Totten, North Dakota : For two hundred and fifty pupils, $65,000 ; for pay of superintendent, drayage, and general repairs and improvements, $15,000 ; for remodeling and enlarging hospital, $22,000 ; in all, $102,000 ; Wa hpeton, No rth Dakota : For three hundred and twenty-five Wahpeton, N. Dak. pupils, $84,500 ; for pay of superintendent, drayage, and general repairs and improvements, $10,000 ; for reconditioning steam and water lines, $6,500 ; for addition to dairy barn, $4,000 ; for purchase of land, $8,500 ; and for fuel-burning equipment, $6,000 ; in all, $119,5 00 ; Chilocco, Oklahoma : For eight hundred and fifty pupils, including chiloeco, 11, not to exceed $2,000 for printing and issuing school paper, $212,500 ; for pay of superintendent, drayage, and general repairs and im- provements, $20,000 ; in all, $232,500 ; Sequoyah Orphan Training School, near Tahlequah, Oklahoma Tninung Okla. Or phan For three hundred orphan Indian children of the State of Oklahoma belonging to the restricted class, to be conducted as an industrial school under the direction of the Secretary of the Interior, $78,000 ; for pa y of s uperin tenden t, dra yage, and gen eral r epairs and i mprove - ments, $15,000 ; in all, $93,000 ; Bloomfield, Oklahoma : For one hundred and sixty pupils, $45,600 ; Bloomfield, okra. for pay of superintendent, drayage, and general repairs and im- provements, $7,000 ; in all, $52,600. Euchee, Oklahoma : For one hundred and fifteen pupils, $32,775 ; Euchee, Okla. for pay of superintendent, drayage, and general repairs and im- provements, $7 .000 ; in all, $39,775 ; Eufaula, Okla. E uf au l a, O kl a ho ma : For one hundred and twenty-five pupils, $35,625 ; for pay of superintendent, drayage, and general repairs and 54835°-29-PT 1-103

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text:
Ward v. Thompson

THIS was an appeal from the Circuit Court of the United States, sitting in admiralty, for the district of Michigan.

It was a libel filed by Eber B. Ward against Charles Thompson, in the District Court of the United States, in a cause of contract, civil and maritime. The ground of the libel was the agreement which will presently be reported. The District Court dismissed the libel, which decree was affirmed by the Circuit Court upon an appeal. The libellant brought the case up to this court.

The case was submitted on printed arguments by Mr. Newberry for the appellant, and Mr. Hand and Mr. Lothrop for appellee. These arguments embraced the whole merits of the contest between the parties; but as the only point considered in the decision in this court relates to the construction of the following contract, they need not be further noticed:

'Memorandum of an agreement between E. B. & S. Ward, of Detroit, Michigan, of the first part, and Charles Thompson, of Canada West, of the second part, witnesseth: That the said party of the first part agree to allow the party of the second part to run the steamer Detroit between the Sault Ste. Marie and Penetanguishene during the remainder of the sailing season of 1852, and all the year A. D. 1853, in a line with and under the general control and management of the party of the second part, who is to appoint all the officers and crew of said steamer, except the clerk or purser, who is to be under the control of the parties of the first part, and subject to their direction. Said steamer is to be paid for the transportation of the Government mails, and for all freights and passengers, the same rates as have heretofore been charged by steamers on the route aforesaid.

'The receipts of the said steamer are to be applied as follows:

'First. All expenses for crew, fuel, repairs, and supplies, are to be paid.

'Secondly. The cost of insuring said steamer, to the amount of twelve thousand dollars, to be paid by E. B. & S. Ward.

'Thirdly. E. B. & S. Ward are to be paid, out of the first net earnings of said steamer, six thousand dollars.

'Fourthly. All the remaining balance, after paying the above, is to be equally divided between E. B. & S. Ward and Charles Thompson aforesaid. The clerk of said boat will be required to make reports as often as once in two weeks of the receipts and expenditures of said steamer, and furnish the said Thompson and Wards each a copy. The said Thompson is to be paid three hundred dollars per year, out of the earnings of said boat, for his services as agent for said steamer Should the said steamer be damaged by any accident, or require repairs, such expenses are to be paid for by said steamer out of her own earnings, the same as for supplies. It is further agreed and understood that the said Charles Thompson is to protect, defend, and guaranty said steamer against any and all infringements of the revenue law of the United States or Great Britain. The said steamer is to be returned and delivered unto the said parties of the first part on the first day of December, 1853, at Detroit, in the same condition (ordinary wear and tear excepted) as she is now in. Should the said steamer be lost before she shall have earned the above sum of six thousand dollars, to be paid to the said E. B. & S. Ward, said Thompson is not to be held liable to pay any part thereof, but the said Thompson shall be held responsible for the negligence, misconduct, or wilful mismanagement, of the said steamer, by the officers under his control and management. In case of any partial loss, for which insurance would be paid, such insurance, when collected, shall be applied to the repairs aforesaid. The said Thompson agrees to furnish good merchantable wood for said steamer, during the time she may be running in his service, at $1 per cord; the best of hard wood, if full four feet long, to be $1.12 1/2 per cord.

'(Signed) E. B. WARD. [L. S.]

'(Signed) S. WARD. [L. S.]

'(Signed) CHARLES THOMPSON. [L. S.]

'Signed, sealed, and delivered, this 10th day of June, A. D. 1852.

'Witness, (Signed) ALEXANDER M. McGREGOR.

'Memorandum. The Detroit is to be delivered as soon as she returns from Buffalo, on her present trip.

'(Signed) E. B. WARD.'

Mr. Justice GRIER delivered the opinion of the court.

title: Ward v. Thompson


text: Talk:Ward v. Thompson

title: Talk:Ward v. Thompson


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1631

 1580 SEVENTIETH C ONGRESS. SESS. II. CH. 705. 1929. improvements, including $1,000 for enlargement of hospital, $8,000 ; for dining hall and kitchen, including equipment, $15,000 $58,625 ; Chema wa, S alem, Chemawa, Salem, Oregon : For seven hundred and fifty pupils, Oreg. includ ing n ative India n pup ils b rought from Alas ka, in cludi ng no t to exc eed $ 1,000 for printing and issuing school paper, $14 1,500 , together with $46,000 of the unexpended balance for support of this school for the fiscal year 1929 ; for pay of superintendent, drayage, and general repairs and improvements, $20,000 ; for boys' dormitory Proviso. and equipment, $70 ,0 00, to be immediately available ; for boilers, Restriction on Alas- $25,000 ; in all, $256,500 : Provided, That except upon the individual kanatives .d of the Secretary of theor no pa rt of th is appropriation orer interi shall be used for the support or education at said school of any native pupil brought from Alaska after January 1, 1925 ; Fl andreau, S outh Dakot a : For four hundred pupils, $104,000 ; for pay of superintendent, drayage, and general repairs and im- rovements, $15,000 ; for hospital and equipment, $35,000 ; in all, i .4,000 ; Pierre, Sou th Dakota : For three hundred pupils, $78,000 ; for pay of sup erint enden t, dra yage, and genera l rep airs and im prove ments , $47,000, including $35,000 for enlarging and remodeling buildings i in all, $125,000 ; I3ayward, Wisconsin : For one hundred and sixty pupils, $45,600 ; for pay of superintendent, drayage, and general repairs and im- provements, $10,000, including $2,000 for a schoolroom and equip- ment ; in all, $55,600 ; Tomah, Wisc ons in : For t hree hundred and twenty-fiv e pupils, $8 4, 50 0 ; for pay of super intenden t, draya ge, and general repairs and improvements, $12,000 ; for employee's cottage, $3,500 ; for septic tank and extension of sewer line, $3,500 ; and for the Lindley M. Co mp ton gymnasium and equipment, $30,000 ; in all, $133,500 ; Proviso. In all, for above-named boarding schools, not to exceed $3,889,500 : Purchase of library books. Provided, That not less than $6,000 of this amount shall be available only for purchase of library books. The Secretary of the Interior is authorized to withdraw from the Treasury of the United States, in his discretion, the sum of $35,000, or so much therof as may be necessary, of the pri ncipal sum on depo sit to the credit of the Chi ppew a In dian s in the Sta te of Minnesota arising und er se ct ion 7 of the Act of Ja nua ry 14, 188 9 (25 Stat ., p . 645), and to expend the same f or pa yment of tu ition for Chippewa Indian children enrolled in the public schools of the State of Minnesota. For support of a school or schools for the Chippewas of the Mississippi in Minnesota (article 3, treaty of March 19, 1867), $4,000 . For the education of Osage children, $8,000, to be paid from the funds held by the United States in trust for the Osage Tribe of Indians in Oklahoma : Provided, That the expenditure of said mon ey sh all include the re ne wal of the present contract wi th the Saint Louis Mission boarding school, except that there shall not be expended more than $240 for annual support and education of any one pupil. For aid to the common sc ho ols in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Nat ions and the Quapaw Agency in Okla- homa, $250.000, to be expended in the discretion of the Secretary of the Interior, and under rules and regulations to be prescribed by him Provided, That this appropriation shall not be subject to the limita- tion in section 1 of the Act of May 25, 1918 (U. S. C., p. 708, sec. 297), limiting the expenditure of money to educate children of less than one-fourth Indian blood. Flandreau, S. Dak. Pierre, S. Dak. Hayward, Wis. Tomah, Wis. Chippewas of Min - neso ta. Tuition of chi ldr en in State schools from tribal funds. Vol. 25, p. 645. Chippewas of the Mississippi. School for. Vol. 16, p. 720. Osages in Oklahoma. Educa ting chi ldre n from tribal funds. Proviso. Sain t L ouis Boardin g Scho ol. Five Civilized Tribes. Common schools. Proviso. Parentage limitation not applicable. Vol. 40, p. 564. U. S. Code, p. 708.
 * in all,

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text:
Ward v. Thompson/Opinion of the Court

The articles of agreement containing the contract, which is the subject matter of this suit, are denominated in the libel a charter-party of the steamboat Detroit to respondent. The answer denies that he had chartered the vessel, and alleges that the writing declared on is a contract of partnership, and not a charter-party. The Circuit Court agreed with the respondent as to the construction of the contract, and consequently dismissed the bill.

A court of admiralty takes cognizance of certain questions between part owners, as to the possession and employment of the ship, but will not assume jurisdiction in matters of account between them. (Orleans v. Phoebus, 11 Peters, 175.) It is not disputed that a contract of partnership in the earnings of a ship comes within the same category. If the party desires an account, his remedy is in a court of chancery. If his complaint be for a breach of some independent covenant, he should seek his remedy in a court of common law.

A charter-party is defined to be 'a contract by which a ship, or some principal part thereof, is let to a merchant, for the conveyance of goods on a determined voyage to one or more places.'

A contract of partnership is where parties join together their money, goods, labor, or skill, for the purposes of trade or gain, and where there is a community of profits.

The only characteristics of a charter-party to be found in this contract are, that the subject of it is a ship, and that libellants are owners. There is no letting or hiring of the ship to the respondent for a given voyage, to be employed by him for his own profit. On the contrary, the Wards contributed a steamboat, to be put into a line for freight and passengers, which has also a contract for carrying the mail. Thompson contributes the good will of an established line, together with his care, skill, and experience. He is to have the general management of the business, and the selection of the officers and crew; but the clerk, or receiving and disbursing agent, is to be appointed by the Wards, and to be under their control.

The receipts of the steamer are to be applied—

1st. To pay expenses.

2d. Insurance.

3d. Six thousand dollars to Ward.

4th. Three hundred to Thompson.

5th. The balance of the profits to be equally divided.

Here we have everything necessary to constitute a partnership:

1st. The parties have joined together to carry on a certain adventure or trade, for their mutual profit-one contributing the vessel, the other his skill, labor, and experience, &c.

2d. There is a communion of profits, on a fixed ratio.

Of such a contract, a court of admiralty has no jurisdiction.

The decree of the Circuit Court is therefore affirmed, with costs.

title: Ward v. Thompson/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1632

 SEVENTIETH CONGRESS. SEss. II. CH .705. 1329 . For support an d maintenance of day and i ndustrial scho ols among the Sioux Indians, including the erection and repairs of school buildings, in accordanc e with the pr ovisions of a rticle 5 of the agre ement made a nd en tered into S eptemb er 26, 1876, and ratified February 28, 1877 (19 Stat., p . 254), $310,000, of which amount $10,000 shall be immediately available. For aid of the public schools in Uintah and Duchesne County school districts, Utah, $6,000, to be paid from the tribal funds of the Confederated Bands of Ute Indians and to be expended under such rules and regulations as may be prescribed by the Secretary of the Interior : Provided, That Indian children shall at all times be admitted to such schools on an entire equality with white children. CONSER VATION OF HEA L1ti For conservation of health among Indians (except at boarding Expenses designated. schools supported from specific appropriations, other than those nam ed h erei n), incl udin g eq uipm ent, mat eria ls, and supp lies ; repairs and improvements to buildings and plants ; compensation and travel- ing expenses of officers and employees, and renting of quarters for them when necess ary ; tr ansp orta tion of pati ents and att enda nts to and from hospitals and sanatoria ; returning to their former homes and interring the remains of deceased patients ; not exceeding $3,000 for expenses (not membership fees) of physicians and nurses when officially detailed, in the interest of health work among the Indians, to attend meetings of medical and health associations ; and not ex- in Attendance at meet- g ceeding $1,000 for circulars and pamphlets for use in preventing and m Suppressing tracho- suppressing trachoma and other contagious and infectious diseases, Allotments to speci- $2 .658,600, including not to exceed the sum of $1 ,520 ,100 for the l r ia ospitals and sana- following -named hospita ls and sanato ria Arizona : Indian Oasis Hospital, $18,000 ; Kayenta Tuberculosis Sanatorium, $32,000 ; Fort Defiance Sanatorium, $38,000 ; Phoenix Sanatorium, $62,000 ; for infirmary and equipment, $30,000 ; in all, $92,000 ; Pima Hospital, $19,000 ; Truxton Canyon Hospital, $7,500 ; Wes tern N avajo Hospit al, $20,000 ; for adding wings, $20,000 ; in al l, $40,0 00 ; Chin Lee Hospital, $9,000 ; Fort Apache Hospital, $25,000 ; Havasupai Hospital, $5,000 ; Hopi Hospital, $22,000 ; for new construction, including equipment, to double capacity, $35,000 ; in all, $57,000 ; Leupp Hospital, $24,000 ; San Carlos Hospital, $15,000 ; Southern Navajo General Hospital, $25,000 ; Tohatchi Ho spit al, $9,000 ; Ph oenix Boardi ng Sch ool H ospita l, for care of rese rvation patie nts, $8, 000 ; California : Hoopa Valley Hospital, $16,000 ; Soboba Hospital, $17,000 ; Fort Bidwell Hospital, $12, 000 ; Fort Yuma Hospital, $10,000 ; Idaho : Fort Lapwai Sanatorium, $78,000 ; Fort Hall Hospital, $10,500 ; Iowa : Sac and Fox Sanatorium, $63,000 ; Mississippi : Choctaw Hospital, $14,000 ; for purchase of land, $3,100 ; in all, $17,100 ; Montana : Blackfeet Hospital, $22,000 ; Fort Peck Hospital, $22,000 ; Crow Agency Hospital, $14,000 ; Fort Belknap Hospital, $9,000 ; Tongue River Hospital, $9,000 ; Nebraska : Winnebago Hospital, $27,000 ; for milk room, $2,500 ; for improving water supply, $3,000 ; in all, $32,500 ; Nevada : Carson Hospital, $18,100 ; Pyramid Lake Sanatorium, $28,000 ; New Mexico : Jicarilla Hospital, $11,800 ; Jicarilla Sanatorium, $36,000 ; Laguna Sanatorium, $29,000 ; Mescalero Hospital, $16,000 ; .Eastern Navajo Hospital, $12,500 ; Northern Navajo Hospital, Arizona. California. Idaho. Iowa. Mississippi. Montana. Nebraska. Nevada. New Mexico. 1581 Sioux Indians. Day and industrial schools. Vol.19,p.254. Uintah and Du. chesne Counties, Utah. Aid to school dis- tri cts. Proviso. Equality with white children. Conservatio n of health. S

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text: Talk:Ward v. Thompson/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1633

 1582 North Carolina. North Dakota. Oklahoma. South Dakota. Washington. Provisos. Interchangeable ex- penditure . Construction author- ized at de sign ated hos- pitals . Chippewas in Min- nes ota. Hospi tals from trib al funds. Vol .25,p.e45. Onigum, Minn. Menominee Reserva- tion, Wis . Keshene Hospital . Health work. Amo unt f rom trust funds available for. Proviso. New construction limited. Canton, S . Dak . Insane as ylum ex- pen ses. SEVENTIETH CONGRESS. SEss. II. Cu. ,705 . 1929 . $20,000 ; Taos Hospital, $9,000 ; Zuni Sanatorium, $50,000 ; Al bu- querque Boarding School Hospital, for care of reservation patients, $25,000 ; Charles h. Burke Boarding School hospital, for care of reservation patients, $5,000 ; Santa Fe Boarding School Ho spit al, for ca re of r eserva tion pa tients, $18,0 00 ; North Carolina : Cherokee Boarding School Hospital, for care of reservation patients, $5,000 ; North Dakota : Turtle Mountain Hospital, $13,000 ; Fort Berthold Hospital, $12,500 ; Oklahoma : Cheyenne and Arapahoe Hospital, $25,000 ; Choctaw and C hickas aw Hos pital, $45, 000 ; Shawnee Sanatorium, $60,000 ; Claremore Hospital, $25,000 ; Seger Hospital, $7,000 ; South Dakota : Crow Creek Hospital, $10,000 ; Pine Ridge Hospital, $1 4, 00 0 ; Ro sebu d Ho spit al, $20, 000 ; Rapid C ity Sanatorium School, $94,600- Washington Yaki ma S ana tori um, $43 ,000 ; Tac oma Hos pita l, $100,000 ; Tulalip Hospital, $8,000 ; for physician's cottage, $4,000 ; in all, $12,000 ; Provided, That 10 per centum of the foregoing amounts shall be available interchangeably for expenditures in the various hospitals named, but not more than 10 per centum shall be added to the amount appropriated for any one of said hospitals or for any particular item within any hospital, and any interchange of appropriations he re- under shall be reported to Congress in the annual Budget ; Provided further, That this appropriation shall be available for construct ion of hospita ls and sanato ria, includin g equipment, as follows : Colorado River Hospital and physician's cottage, Arizona, $50,000 ; Oraibi Sanatorium, Arizona, $65,000 ; Fort Belknap Hospi- tal, Montana, $50,000 ; Tongue River Hospital, Montana, $55,000, including water and sewer systems in connection therewith ; Turtle Mountain Hospital, North Dakota, $50,000 ; Pawnee and Ponca hospital, Oklahoma, $60,000 ; Pine Ridge Hospital, South Dakota, $65,000 ; Cheyenne River and Standing Rock Sanatorium, Sout h Dakota, $70,000 ; Hayward Hospital, Wisconsin, $50,000 ; in all, $515 ,000 . For support of hospitals maintained for the benefit of the Chip- pewa Indians in the State of Minnesota, $90,000 payable from the principal sum on deposit to the credit of said Indians arising under section 7 of the Act of January 14, 1889 (25 Stat ., p . 645). For construction, including e quipment, of a sanatorium b uilding on the Leech Lake Reserva tion at Onigu m, Minnesota, $50,000, pay- able from funds on deposit in the Treasury to the credit of the Chippewa Indians of Minnesota. For the construction and equipment of four pavilion additions to the Keshen a Hosp ital on the Menom inee R eserv ation, Wisco nsin, $20,000, out of the tribal funds of the Menominee Indians. There shall be available for health work among the several tribes of Indians not exceeding $275,000 of the tribal trust funds authorized elsewhere in this Act for support of Indians and administration of Indi an pro perty : Provid ed, That not more than $7,500 of such amount may be expended for new construction in connection with health activities at any one place. For the equipment and maintenance of the asylum for insane Indi ans at Canto n, So uth Da kota, for in ciden tal and all other expenses necessary for its proper conduct and management, including pay of employees, repairs, improvements, and for necessary expense of transporting insane Indians to and from said asylum, $48,500 ; for horse barn, $4,500 ; in all, $53,000.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1634

 SEVENTIETH CONGRESS. SESS. II. CII. 705. 1929 . 1583 GENERAL SUPPORT AND ADMINISTRATION Support and admin- istration. For general support of Indians and administration of Indian Expenses. property, including pay of employees, $925,000 : Provided, That a Detailed report of report shall be made to Congress on the first Monday of December, expenditures. Civil Tribe s 1930, by the Superintendent of the Five Civilized Tribes through the Secretary of the Interior showing in detail the expenditure of all moneys from this appropriation on behalf of the said Five Civilized Tribes : Provided further, That the position of Superintendent of placed rin t e ndent sei o f,- the civil Five Civilized Tribes is hereby included within the competitive ice rules. classifi ed civil service a nd shall be subje ct to civ il servic e laws an d rules. Fulfilling treaties with Indians : For the purpose of discharging Fulfill ing tre aties. obligations of the United States under treaties and agreements with various tribes and bands of Indians as follows : Coeur d' Alenes, Idaho (article 11, agreement of March 3, 1891), >d C ahooe ur d'Al,enes, $3,900 ; Vol . nocks, Idaho. Bannocks, Idaho (article 10, treaty of July 3 . 1868), $7,580 ; Vol. 15, p. 696. Crows, Montana (articles 8 and 10, treaty of May 7, 1868), $7,480 ; Voi` 5,p 6;2. Northern Cheyennes and Arapahoes, Montana (article 7, treaty of Northern Cheyennes May 10, 1868, and agreement of February 28, 1877), $75,000 ; a Vol119 n2 61\io nt. Pawnees, Oklahoma (articles 3 and 4, treaty of September 24, Voi 1,5'p . 731; Vol. 1857, and article 3, agreement of November 23, 1892), $51,000 27, p. x44. Quapaws, Okla. Quapaws, Oklahoma (article 3, treaty of May 13, 1833), $2,280. Vol.7,p .425. Sioux of different tribes, including Santee Sioux of Nebraska, tribes ' differ ent North Dakota, and South Dakota (articles 8 and 13, treaty of April l9 VPl. 15, p. 640; Vol. 29, 1868, 15 Stat ., p . 635, and Act of February 28, 1877, 19 Stat ., p . 254), $390,000 ; Confederated Bands of Utes (articles 9 12, and 15, treaty Of 13191111s. Ls, Confederated y . March 2, 1868), $57,000 ; Vol.15,p.622. Spokanes, Washington (article 6, agreement of March 18, 1887), Vpo l .27 p, Wash. $1,320. Shoshones, Wyo. Shoshones, Wyoming (articles 8 and 10, treaty of July 3, 1568) Vol. 15, pp. 675, 676. $8,000 ; In all, for treaty stipulations, not to exceed $603,560. Quapaw Agen cy. For expenses incident to the administration of the restricted or Administering trust trust property of Indians under the Quapaw Indian Agency, $16,000, property of Indians reimbu rsable to th e Unit ed Sta tes, a s provi ded in the A ct of Febru- Vol. 4Code, 415 . 720. ary 14, 1920 (U. S. C., p. 720, sec. 413). U. S. port,etc., For general support of Indians and administration of Indian prop- at specified agencies erty under the jurisdiction of the following agencies, to be paid from tribal funds. from the funds held by the United States in trust for the respective tribes, in not to exceed the following sums, respectively Arizona : Colorado River, $2,500 ; Fort Apache, $129,000, of which Arizona. $5,000 may be used for construction, repairs, and improvements at the agency plant ; Paiute, $7,200 ; Pima, $3,000 ; Salt River, $1,000 ; San Carlos, $82,300 ; Truxton Canyon, $36,100 ; in all, $261,100 ; California : Mission, $500 ; Round Valley, $5,000 ; Tule River, $200 ; California. in all, $5,700 ; Colorado : Consolidated TJte (Southern Ute, $5,400 ; Ute Mountain, Colorado . $15,000) ; in all, $20,400 ; Idaho : Coeur d'Alene, $15,800 ; Fort Hall, $27,100 ; Fort Lapwai, Idaho. $14,800 ; in all, $57,700 ; Iowa : Sac and Fox, $600 : Provided, That no part of this alihro- Iowa« Proviso. priation shall be availble for the paymnt of taxes on any lands held No tax on trust lands. i n trust by the United States for the benefit of said Indians ; Kansas : Pottawatomie, $2,900 ; Kansas. Michigan : Mackinac, $200 ; Michigan. Minnesota : Consolidated Chippewa, $1,500 ; Red Lake, $61,900, Minnesota. payable out of trust funds of Red Lake Indians ; in all, $63,400 :

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1635

 1584 SEVENTIETH C ONGRESS. SESs. II. CH. 705. 1929. Montana. Montana : Blackfeet, $5,000 ; Flathead, $42,000 ; Fort Peck, $15,100 ; Tongue River, $15,300 ; Rocky Boy, $3,600 ; in all, $81,000 ; Nebraska. Nebraska : Omaha, $1,000 ; Nevada. Nevada : Carson (Pyramid Lake), $5,200 ; Walker River, $400 ; Western Shoshone, $16,200 ; in all, $21,800 ; New Mexico. New Mexico : Jicarilla, $60,000 ; Mescalero, $55,000 ; Navajo, $110,000, to be apportioned among the several Navajo jurisdictions in Arizona and New Mexico ; in all, $225,000 ; North Dakota . North Dakota : Fort Berthold, $5,100 ; Standing Rock, $41,800 ; in all, $46,900 ; Oklahoma . Oklahoma : Ponca (Otoe, $1,200 ; Ponca, $2,600 ; Tonkawa, $700), $4,500 ; Sac and Fox, $3,000 ; Kiowa, Comanche, and Apache, $60,000 ; Cheyennes and Arapahoes, $17,100 ; in all, $84,600 ; Oregon. Oregon : Klamath, $163,300, of which $10,000 may be used for con- struc tion, repair, and improv ement of buil dings at the agenc y plan t ; Umatilla, $9,600 ; Warm Springs, $30,500 ; in all, $203,400 ; South Dakota. South Dakota : Cheyenne River, $92,900 ; Pine Ridge, $7,000 ; Lower Brule, $5,100 ; in all, $105,000 ; 'Ut ah. Pro vis o. Utah : Uintah and Oura y, $15,200 : Provided, That not to exceed stat e Ex perim enta l $500 of this amount may be used to pay part of the expenses of the Farm. State Experimental Farm, located near Fort Duchesne, Utah, within the Uintah and Ouray Indian Reservation ; Washington . Washington : Colville, $33,400 ; Neah Bay, $5,300 ; Puyallup, $4 .000 ; Spokane, $19,400 ; Taholah (Quinaielt), $11,300 ; Yakima, $37,400 ; in all, $110,800. Wisconsin. Wisconsin : Lac du Flambeau $1,200 ; Keshena S56,250, including Home for indigent > > Menominees at Ke- $4,000 for remodeling an agency building so as to adapt it for use shena. as 'a home for old and indigent Menominee Indians, and $4,750 for equipment, furniture and furnishings, operation and upkeep, and $5,000 for monthly allowances, under such rules and regulations as the Secretary of the Interior may prescribe, to such old and indigent members of the tribe as it is impracticable to place in the home and who reside with relatives or friends ; in all, $57,450 ; Wy omin g. Wyoming : Shoshone $73,400. In all, not to exceed 1,437,550. Chippewas in Min- For g enera l sup port, adm inist rati on of prop erty, and prom otion nessota. General suppo rt, ad- of self-support among the Chippewa Indians in the State of Minne- ministering property, etc. sota $80 ,000, to be paid f rom the p rincipal sum on d eposit to the cred it Vol. 25, p« 815. of said Indians, arising under section 7 of the Act entitled "An Act for the relief and civilization of the Chippewa Indians in the State of Minnesota," approved January 14, 1889 (25 Stat ., p . 645), to be Purposes specified. used exclusively for the purposes following : Not exceeding $50,000 of this amount may be expended for general agency purposes ; not Aiding indigent in- exceeding $30,000 may be expended in aiding indigent Chippewa Con dit ion. Indians upon the condition that any funds used in support of a member of the tribe shall be reimbursed out of and become a lien against any individual property of which such member may now or hereaf ter be come s eized or pos sessed, the t wo pre ceding requi rement s not to apply to any old, infirm, or indigent Indian, in the discretion Proviso. of the Secretary of the Interior : Provided, That not to exceed Amount . ately vailable immedi- $10.000 of the principal funds on deposit to the credit of the Chip- I pewa Indians of Minnesota shall be immediately available for the 3ti rpose of aidin g ind igen t Chi ppewa Ind ians upon the c ondi tions ierein named. Choctaw and Chick- asaws. For the expenses of per capita payments to the enrolled members Per capita payments of the Choctaw and Chickasaw Tribes of Indians, $5,000, to be paid exp «s e.Oiv«lized from the funds held by the United States in trust for said Indians. Tri bes. For the current fiscal year, money may be expended from the tri- App ortionment o f al- bal funds of the Choctaw, Chickasaw, Creek, and Seminole Tribes lotments for fiscal year. for equalization of allotments, per capita, and other payments author-

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text:
Berthold v. McDonald

THIS case was brought up from the Supreme Court of the State of Missouri by a writ of error issued under the 25th section of the judiciary act.

It was an action of ejectment brought by Berthold and others against the defendants in error, to recover the possession of a tract of land near St. Louis, containing eighty arpens, equivalent to sixty-eight acres. The action was orginally brought in the St. Louis land court. Under the Spanish Government, there was a common field near to the town of St. Louis, called the common field of the Prairie des Noyers. In this common field were two lots, owned respectively by two negresses, one of whom was named Florence Flore, and the other named Jeannette, or Jeannette Flore. Berthold and the other plaintiffs in error claimed under Florence Flore, and McDonald and Mary McRee under Jeannette. Both claims were confirmed in the manner stated in the opinion of the court. The court before which the case was originally tried left it to the jury to find which of these negresses was the original confirmee of the land in question, and the Supreme Court of Missouir affirmed the correctness of this instruction. The verdict and judgment were for the defendants, and the plaintiffs below brought the case to this court by a writ of error issued under the 25th section of the judiciary act.

The Supreme Court of Missouri was of opinion that the finding of the facts embodied in the instructions given by the court clearly establishes the superiority of the equity of the defendants, and that the plaintiffs seemed to rely solely on the dry technical point, that their confirmation was prior in point of time to that of the defendants-a view of the case in which that court did not acquiesce.

The case was submitted in this court on a printed argument by Mr. Washburne for the plaintiffs in error, and argued by Mr. Blair and Mr. Gamble for the defendants.

The points made by the respective counsel were as follows, viz: by Mr. Washburne for plaintiffs in error:

First Point. The confirmation to Charles Gratiot on the 19th day of November, 1811, was final and conclusive, so that neither the United States nor any person deriving title from the United States subsequently to that date could rightfully claim the land against such confirmation.

Act of Congress, March 3, 1807, sec. 41; 12 Stor. St., 1060.

Strother v. Lucas, 12 Pet., 458.

Chouteau v. Eckhart, 2 How., 344.

Le Bois v. Bramell, 4 How., 449.

Landes v. Brant, 10 How., 370.

Second Point. The claim and confirmation in the name of Jeannette, who was dead at the time, are nullities, and cannot, even if otherwise valid, stand in the way of the confirmation to Gratiot. The court below disposed of this point by a simple reference to a prior decision of the same court, in Mercier v. Letcher, 22 Mo. Rep., 66. The case referred to will be found to be this: Charles Mercier was proprietor of a tract of land, under an imperfect Spanish title. Mercier died in Spanish times, and Courtois married his widow.

Courtois claimed the land in his own name, as representative of Mercier, and filed with the commissioners the evidences of Mercier's title. The commissioners confirmed the land 'to Charles Mercier.' The court decided that Courtois, who made the claim, took nothing by this confirmation; and that the heirs of Mercier, who made no claim, and who, by the force of the act of Congress, were barred of all right in the land two years before the confirmation, took title from it. Both branches of this decision seem to be very questionable.

Third Point. There are no equities appearing in the case that can defeat a recovery by the plaintiffs in the present action, or deprive them of the right to hold the land under the confirmation to their ancestor.

Mr. Gamble said that the following positions were sustained by the evidence and law of the case:

1. The objection to the confirmation in the name of Jeannette, on the ground that she was dead when the claim was filed, is not sustained by the evidence, and if it had been, is not a valid objection in law.

Mercier v. Letcher, 22 Mo. R., 66

2. In this case, the dispute is between parties holding equitable titles, with the legal title outstanding in the United States, and is to be determined in favor of the party having the superior equity.

Bagnell v. Broderick, 13 Pet. R., 449.

Wilcox v. Jackson, ib., 516.

3. The facts in evidence show that if the two confirmations cover the same land, the superior equity is in the defendants.

4. The reliance of the plaintiffs upon the fact that their confirmation is one day older than that of the defendants, is not warranted by any decision of this court, or by any principle of law, and arises from a mere misapprehension of the language found in the opinion in Landes v. Brant, 10 How., 372. No such case as the present ever has been before this court.

Strother v. Lucas, 6 Pet. R., 763.

Strother v. Lucas, 12 Pet. R., 410.

Chouteau v. Eckhart, 2 Howard, 345.

Le Bois v. Bramell, 4 Howard, 449.

Bissell v. Penrose, 8 Howard, 330.

None of these decisions apply to this case, where there are two confirmations by the same board on consecutive days.

5. If the two confirmations are equal as recognitions of the two original titles, then they are to be laid out of consideration, and the parties are to litigate upon their original titles.

Carmichael v. Buster, 8 Martin R., 727.

Sanchez v. Gonzales, 11 Martin R., 212.

In such litigation, the defendants must succeed.

6. The doctrine of relation, as explained and applied in Landes v. Brant, refers each of the confirmations to the time of filing the notice, and in this case the notice in the name of Jeannette was filed first, and the confirmation in her name becomes the elder by relation.

7. The confirmation for Gratiot, if it in fact covers the land confirmed in the name of Jeannette, is void for want of jurisdiction in the commissioners, because the land was claimed and possessed by Jeannette, under the Spanish Government.

2 Stat. United States, 440, sec. 2.

Certainly it was void as against her and her representatives claiming the land according to law.

8. The confirmation, when properly located, does not cover the land in controversy.

Until surveyed, it attaches to no land.

West v. Cochran, 17 Howard, 416.

It was ordered to be surveyed according to the possession of his grantor.

If so surveyed, it would not touch the land in dispute.

It never has been surveyed with reference to that possession.

The survey given in evidence by the plaintiffs is in open disregard of the order of the commissioners, and is a mere nullity.

If a proper survey were made, it would cover the land of Flore, which the heirs of Gratiot have already obtained.

Mr. Justice CATRON delivered the opinion of the court.

title: Berthold v. McDonald


text: Talk:Berthold v. McDonald

title: Talk:Berthold v. McDonald


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1636

 SEVENTIETH C ONGRESS. SEss. II. CH. 705. 1929 . 1585 izeci by law to individual members of the respective tribes, salaries and contingent expenses of the governor of the Chickasaw Nation and chief of the Choctaw Nation and one mining trustee for the Choc taw and C hicka saw Natio ns at sala ries at t he ra te h ereto fore Spec ified sala ries. paid for the said governor and said chief and $2,000 for the said mining trustee, and the chief of the Creek Nation at a salary not to exceed $600 per annum, and one attorney each for the Choctaw and Chickasaw Tribes employed under contract approved by the Presi- dent under existing law : Provided, That the expenses of any of the pay restr icti on. above-named officials shall not exceed $2,500 per annum each for chiefs and governor except in the case of tribal attorneys, whose expenses shall be determined and limited by the Commissioner of Indian Affai rs, no t to e xceed $4,000 each. Choctaw and Chick. There is hereby authorized to be expended, out of any money now asaw Nations. standing to the credit of the Choctaw and Chickasaw Nations of attoreys u thereof, for Indian s, or to the credi t of e ither of said natio ns, in the T reasur y su its in Cou rt of of the United States, the sum of not exceeding $30,000, to be paid, in the discretion of the Secretary of the Interior, to attorneys for said Choctaw and Chickasaw Nations of Indians, or to the attorneys for either of said Indian nations, employed under the authority of the Act approved June 7, 1924 (43 Stat ., p . 537), the pay- Vol. 43, p.537. ments to be made in such sums as may be neces sary to reimburse Reimburse ment for said attorneys for such proper and necessary expenses as may have expenses, etc. been incurred or may be incurred in the investigation of records and preparation, institution, and prosecution of suits of the Choctaw and Chickasaw Nations of Indians, or of either of said Indian nations, against the United States under the above-mentioned Act of June 7, 1924 : Provided, however, That the claims of the attorneys Submission of claims. shall be filed by said attorneys with the Secretary of the Interior and shall be a ccomp anie d by the a ttor neys' item ized and verif ied statement of the expenditures for expenses and by proper vouchers, and that the claims so submitted shall be subject to the approval of the Secretary of the Interior : Provided That an sums Reimbursable from y further, y amount decreed by allowed and paid under this Act to the attorneys shall be reim- court. bursable to the credit of the Choctaw and Chickasaw Nations of Indians, or to the credit of either of said Indian nations, as the case may be, out of any amount or amounts which may hereafter be decreed by the Court of Claims to said attorneys for their services and expenses in connection with the tribal claims and suits of the Choctaw and Chickasaw Nations of Indians, or of either of said Indian nations, under the above-mentioned Act of June 7, 1924. There is hereby authorized to be expended, out of any money now Seminole Nation. Sum authorized for standing to the credit of the Seminole Nation of Indians in the attorneys thereof, in Treasury of the United States, the sum of not exceeding $5,000 to Cla;msin cou rt of be paid, in the discretion of the Secretary of the Interior, to attor- vol. 43, p .134. net's for said Seminole Nation of Indians employed under the authority of the Act of Congress approved May 20, 1924 (43 Stat ., pp. 133-134), the payments to be made in such sums as may be neces- sary to reimburse the attorneys for such proper and necessary ex Rei mbu rs eme nt for expenses as may have been incurred or may be incurred in the investigation of records and preparation, institution, and prosecu- tion of suits of the Seminole Nation of Indians against the United States under the above-mentioned Act of May 20, 1924 : Provided submission of claims further, That the claims of the attorneys shall be filed by said etc. attor neys with the Secre tary of t he In terio r and sha ll be acco m- panied by the attorneys' itemized and verified statement of the expenditures for expenses and by proper vouch ers, and that the claims so submitted shall be subject to the approval of the Secre- tary of the Interior : Provided further, That any sums allowed and

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text:
Berthold v. McDonald/Opinion of the Court

The board of commissioners, sitting at St. Louis to examine claims to lands, according to the act of March 3d, 1807, confirmed to Charles Gratiot, assignee of Jeannette Flore, two arpens in front, by forty back, lying in the Prairie des Noyers, near to St. Louis. This common field lot had been designated by survey, and was well known. The confirmation was made November 19th, 1811.

On the next day, (November 20th, 1811,) the board also confirmed the same land to Jeannette, a free negro woman. Patent certificates issued to Gratiot and Jeannette, respectively, dated the same day, 20th November, 1811. Jeannette died about 1803, leaving as her heir a child named Susan Jeannette, who died about 1840.

Gratiot got a deed for the land from a different person, named Florence Flore, who conveyed in the name of Jeannette Flore. This deed was made in 1805, and filed by Gratiot with the recorder, and on which deed his confirmation by the board was founded. Jeannette had occupied the land for many years before her death. Florence Flore had never occupied it; had no claim to it, at any time; and conveyed in ignorance of what land her deed covered, in all probability. Gratiot died in 1817, leaving a widow and children. Neither he nor his heirs pretended to have any claim to the premises until recently, before this suit was brought by the heirs.

McDonald and Mary McRee, the defendants, claim under Jeannette, who got the second confirmation. This suit was instituted in the land court at St. Louis by petition, in 1854, under the new code of procedure of Missouri, which confounds all distinction between law and equity, and combines both remedies in the same action. The petition was answered, and a trial had on the merits, before the court and a jury.

The court, on motion of the defendants, instructed the jury as follows:

'If the jury find, from the evidence, that the tract of land confirmed to Jeannette by the board of commissioners includes the land in controversy, and is the same land which was surveyed for Jeannette by the authority of the Spanish Government; that said Jeannette, and those acting for or under her, were the only persons who inhabited, cultivated, or possessed, the said tract, prior to the 20th of December, 1803; that the person who executed the deed in the name of Jeannette Flore, and filed by Charles Gratiot with the recorder of land titles as one of the evidences of his claim, is not the person for whom the survey of said tract of land was so made, but another and a different person, and that she cultivated and possessed, prior to the 20th of December, 1803, another and different tract in the same common field, surveyed for her, by authority of the Spanish Government, in the year 1788, embracing no part of the land in controversy, the jury ought to find for the defendants.'

This instruction was excepted to, and a verdict was found for the defendants.

The cause was brought to the Supreme Court of Missouri by writ of error, where the judgment of the land court was affirmed; and, to revise this judgment, a writ of error was prosecuted out of this court, under the 25th section of the judiciary act.

As the title of Gratiot's heirs was directly drawn in question by the foregoing instruction, and as the decision below, giving the instruction, rejected the title, no doubt can exist in regard to the authority of this court to re-examine the decision of the State courts.

It was so determined, in the case of Lytle et al. against the State of Arkansas and others, decided here at this term.

The titles in controversy are equities only, no patent having issued to either claimant on the certificates granted by the board. (10 How., 374.) With these equities, the courts of Missouri were dealing on parol evidence, reaching behind the confirmation; and the question is, had they the power to do so?

The rule laid down by this court in the case of Garland v. Wynn (20 How., 8) is, 'that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims.' The board of commissioners was a special tribunal, within the rule.

The principle was applied in the case of Lytle and others against the State of Arkansas and others, cited above.

In these cases, and in several others, the contest was between claimants under occupant laws, giving a preference of entry to actual settlers; and where an applicant obtained the preference, and was allowed to enter the land on producing false affidavits, by which he imposed on the register and receiver, to the prejudice of another's right.

In the instance before us, each of the parties claimed as occupants for ten consecutive years before the 20th of December, 1803. Gratiot and Jeannette both proved that the latter had occupied as required, but Gratiot imposed on the board by his false deed of assignment for the lot obtained by him from Florence Flore, whose name was untruly signed Jeannette Flore; and by reason of this imposition, he obtained confirmation and a patent certificate, which his heirs make the foundation of their suit.

Each party here has a good title, as against the United States, the act of 1807 declaring that a confirmation of the board shall be conclusive against the Government.

As both claims were filed in proper time, and the confirmations were had in due time, the equities are equal, and balance each other, so far as they depend on the confirmations alone; and the question is, can the ordinary courts of justice go behind the right established by the record confirming Gratiot's claim? To do this, proof must be heard impeaching his prima facie title, and which proof existed when the claim was filed with the recorder and acted on by the board. In other words, could the State courts go behind Gratiot's confirmation, and, on evidence, compare his equity with that of Jeannette, and adjudge who the true owner was?

In the case of Doe v. Eslava, (9 How., 421,) this court came to the conclusion, (although it is not distinctly expressed,) that in a contention between double concessions, which balanced each other, proof could be heard, and must of necessity be heard, to determine the better right between the contending parties.

In the cases of Chouteau v. Eckhart and Le Bois v. Bramell, it was held that the grant made by the act of 1812, of the village commons of St. Charles and St. Louis, and of village lots, to possessors, gave a title in fee; and that a claimant, under a Spanish concession subsequently confirmed, could not go behind the act of Congress, and overthrow the legal title it conferred; and this, for the plain reason that neither Chouteau nor Le Bois had any title, when the act of 1812 was passed, that could be asserted in a court of justice; and as the political power from which alone they could take title had cut them off, to that power they must look for redress of the injury, if any existed.

To conflicts of title of the foregoing description, the principles asserted in the case of Landes v. Brant (10 How., 370) apply.

We have no doubt of the correctness of the decision of the Supreme Court of Missouri in this cause, and order its judgment to be affirmed.