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Page:United States Statutes at Large Volume 45 Part 1.djvu/1466

 SEVENTIETH CONGRESS. SESS. II. CHs. 415, 416 . 1929 . CHAP. 415 .-An Act To repeal certain provisions of law relating to the Federal building at Des Moines, Iowa. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the last three paragraphs of section 20 of the Act entitled "An Act to increase the limit of cost of certain public buildings ; to authorize the enlarge- m ent, ext ensi on, remo deli ng, or i mpro veme nt of ce rtai n pu blic buildings ; to authorize the erection and completion of public buildings ; to authorize the purchase of sites for public buildings and for other pu rpo se s," approved Ma rch 4, 1913, as amended, are hereby repealed. Approved, March 1, 1929 . INS TIT UTI ON OF PR OCE EDI NGS 1415 March 1, 1929. [H. R. 13957.1 [Public, No. 866 .] Des Moines, Iowa. Sale of present Fed- eral building at, re- pe aled. Vol .37, p .884, amend- ed. CHAP. 416 .-An Act To provide for the acquisition of land in the District March 1, 46 .] of Columbia for the use of the United States. [Public, [11 ., . 13461 No. 867 .] Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That when ever the h ead of any executive department or independent bureau, or ot her officer of the United States, or any board or commission of the United States, hereinafter referred to as the acquiring authority, has been, or hereafter shall be, authorized by law to acquire real property in the Dis tr ict of Columbia for the construction of any pub lic buil ding or work, or for par ks, park ways, pu blic pla ygrounds , or any other public purpose, such acquiring authority shall be, and hereby is, authorized to acquire the same in the name of the United St ates by cond emna tion und er j udic ial proc ess when ever in the opinion of such acquiring authority it is necessary or advantageous so to do ; and in every such case the Attorney General of the United States, upon the request of such acquiring authority, shall cause a proceeding in rem for such condemnation to be instituted in the Supreme Court of the District of Columbia, holding a special term as a district court of the United States, which court is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same. District of Columbia. Heads of executive departments, etc ., au- thorized to acquire real estate in, for public purpose, may acquire the same by condemna- tion in the name of the United States. Proceeding in rem to be instituted in Dis- tri ct Suprem e Court holding special term as a district court. Institution of pro. ceedings. SEC. 2. Every such condemnation pro ce edi ng shall be ins ti tut ed be led .ed petition to by filing in said court a verified petition which shall contain or have contents. annexed thereto the following (1) A statement of the authority under which and the public use for which the lands are to be acquired. (2) A description of the lands to be acquired sufficient for the identification thereof. Where such lands, taken together, constitute all privately own ed la nd in any square in the city of Was hi ngt on it shall be sufficient t o designate the same by the numbe r of the square as the same appears on the records of squares in the office of the surv eyor of the Dist rict of Columbia. (3) A plan showing the lands to be acquired. (4) The names of the owners of the lands to be acquired, so far as a scertain able by reasonab le inqui ry, and of the pe rsons in actual and open possession of the same. If it shall appear from the land records of the District of Columbia that a right, title, interest, or esta te in sa id lands was for merly ve sted in any perso n who i s known, or m ay be pr esumed, to be de ceased, which ri ght, titl e, inter est, or estate, if valid and subsisting, would be adverse to the person in pres ent poss ession c laiming to be ow ner of s aid lands, and th e names Authority for. Description of lands. Plan. Names of owners, etc.

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Kock v. Emmerling

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.

The facts are stated in the opinion of the court.

It was submitted on printed argument by Mr. Pike for the plaintiff in error, and argued by Mr. Benjamin for the defendant.

Mr. Pike contended, that neither by the common law nor by the law of Louisiana was the broker entitled to any commission.

On the subject of the common law, he cited the cases of Broad v. Thomas, 7 Bing., 99, and Read v. Rann, 10 Barn. and Cress., 438.

On the subject of the law of Louisiana, he cited many authorities from the civil law, and the case of De Santos v. Taney, decided in November, 1857. With respect to this latter case, he said:

In De Santos v. Taney, in November, 1857, the very question in this case came before the same court. In that case, a real estate broker, employed to find a purchaser for a house, had done so. The price and terms were agreed to and settled, and accepted by the defendant in writing. The bill of sale was drawn and ready, when a dispute arose as to who should pay certain taxes, and the matter was broken off. The court affirmed the decision in Blanc v. the Improvement and Banking Co., and Didion & Duralde; and said that, in all the cases relied on by the broker, the contract was consummated, though, through bad faith towards the broker on the part of his principal, it had been suspended, and apparently abandoned.

The court said, 'Negotiations for sales through brokers, interrupted and broken off at every stage of progress to completion, are of daily occurrence. But all the authorities confirm the doctrine of Judge Martin, as we understand it, that no brokerage is due until the sale is complete and executed; that is to say, until the consideration of the sale has passed to the vendor.'

Thus it is settled, by the legitimate interpreter of the law of Louisiana, as the law of that State under its code, that, as is the law in England, the broker, if paid at all, is paid by way of commissions-i. e., by a per centage upon the money actually received on a completed sale; and that if there be no sale he is entitled to nothing.

And this is a reasonable doctrine. The compensation in case of success is very large; and, in fixing it so high, all the uncertainties and difficulties to be anticipated in completing a sale, whether arising from the whims and caprices of the parties, or from any other cause, may well be regarded as taken into consideration. The broker's implied contract is, in effect, an aleatory one. For the chance of a large reward, he risks his labor and trouble. He takes the chances of success, and must be supposed to have considered the caprice, even, of each party, as an element of the calculation. And a plain reason for this is, that it would be, in almost every case, impossible to prove that mere caprice broke off the negotiation. As he has no legal right to force a party to conclude a sale or purchase, that he may have his fee, so he has no right to insist on knowing the reason which caused the refusal to proceed, any more than if he were a marriage broker. In this case, as in that of a marriage not effected, he must, to recover, establish a proposition he cannot establish, to wit: that the parties refusing to proceed did so for an insufficient reason.

It is not shown in this case that he incurred any expenses or made any outlay. The suit is for his commissions, and the judgment allowing him such commissions is surely erroneous.

Mr. Benjamin said:

This case is a very simple one. Emmerling, a real estate broker, was employed by Kock to find a purchaser for his plantation at the price of $250,000. A purchaser was found by the broker, with whom the bargain was made by Kock at the price fixed by himself. After making a verbal agreement for the sale, Kock changed his mind, and refused to sell. The question is, whether he can lawfully refuse to pay his broker the commission earned, on the ground that the sale was not actually effected, when it was his own act that prevented the accomplishment of the sale.

The judge below decided rightly that the commissions were due.

C. C., 2035.

Righter v. Aleman, 4 Rob., 45.

Wells v. Smith, 3 La. Rep., 501.

Levistones v. Landreaux, 6 Annual, 26.

Lestrade v. Perrera, 6 Annual, 398.

McGavock v. Woodlief, 20 How., 221.

Mr. Justice McLEAN delivered the opinion of the court.

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title: Kock v. Emmerling


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1467

 1416 Interest to be ac- quired. Prayer for condem- nation and vesting title in United States . Citation and notice. Public notice, and order of parties of inter- est to appear. Des cript ion of la nds in order of citation . Newspaper publica- tion. Personal service of copy of order. By mail to nonresi- dent. Default in appear- ance. Deemed a consent to taking, etc., of lands. Person claiming any right, etc ., to the land may be permitted to appear in the proceed- ings. SEVENTIETH C ONGRESS. SEss. II. CH. 416. 1929 . of the heirs or devisees of such deceased person are not known, it shall be sufficient to describe them in the petition and in any order of citation or publication or other process thereon as " the unknown heirs or devisees" of such deceased person. And suc h desig nation shall be valid and effective to all intents and purposes as if all persons claiming by, through, or under said deceased person had been specifically named. (5) A statement of the estate or interest in said lands which petitioner intends to acquire for the public use stated. (6) A prayer that said lands be condemned and taken for the use of the United States and that the title to the same in fee simple, or such estate or interest as may be specified, be vested in the United States. CIT ATI ON AND NOTICE SEC. 3 . The court shall cause public notice of the institution of such proceedin g to be given by an order of citation re quiring all persons claiming to have any right, title, interest, or estate in the lands to be acquired, or to be entitled to compensation in respect of the taking of the same, and all persons occupying the same, to appear in said court on a day to be named in said order of citation to answer the petition and make claim for the compensation to which they deem themselves entitled. SEC. 4. Such order of citation shall contain a description of the lands to be acquired sufficient for the identification thereof and the names of the persons given in the petition as claiming to have any right, title, interest, or estate in said lands or to be entitled to com- pensation in respect of the taking of the same and as occupying the same. If any such person is alleged in said petition to be a non- resident of the District of Columbia, the order of citation shall also state the last place of residence of such person, if known. SEC. 5 . Said order of citation shall be published at least once a week for three consecutive weeks in some newspaper of general cir- culation published in the District of Columbia. SEC. 6. The court shall also direct service of a copy of said order of citation before the return date of the said order upon each of the persons named therein who is, so far as ascertainable by reasonable inquiry, residing or sojourning at the time within the District of Columbia. The court shall also require a copy of said order of cita- tio n to be mailed, postpaid, to suc h of the persons named t herein a s may be shown by said petition or affidavit to be nonresidents of the District of Columbia, such copy to be addressed to such persons at their last known places of residence. DE FAU LT IN APPEARANCE SEC. 1. In default of appearance on or before the return day speci- fied in said order of citation (or on or before such further day as the court for cause shown may allow for the purpose) e very person having any right, title, interest, or estate in the lands described in said order, or entitled to compensation in respect of the taking of the same or entitled to the possession of, or occupying the same, shall be deemed to have consented to the taking and condemnation of said lands for the public purpose stated at and for such compensation as may be finally awarded therefor in the proceeding and shall be bound by all orders, judgments, and decrees that may be entered in said proceeding. SEC. 8 . The court may, by order, upon ap plication and for cause shown, at any time prior to final judgment permit any person claim- ing any right, title, interest, or estate in the lands to be acquired or to be entitled to compensation in respect of the taking of the same to

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text: Talk:Kock v. Emmerling

title: Talk:Kock v. Emmerling


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1468

 SEVENTIETH C ONGRESS. SEss. IL CH. 416 . 1929. 1417 appear in said proceeding upon such terms and conditions as the court may direct. GUARDIANS AD LITEM Guardians ad litem. SEC. 9. If any person having, or claiming to have any right, title, Appointment of, au- g y thorized for persons interest, or estate in the lands to be acquired, or entitled, or claiming upon legal disa bility, o be entitled to compensation in respect of the taping of the same L,, or entitled or claiming to be entitled, to the possession of the same, appears to be under legal disability by reason of infancy, insanity, idiocy, or other like cause, the court, after the return day specified in the order of citation, upon the application of any person interested, sha ll appoint so me suitable p erson as guard ian ad litem to appear for such person under disability. Failure to apply for the appoint- ment of a guardian ad litem for any such person under disability shall not affect the validity of the proceedings. VESTING OF TITLE AND RIG HT TO COM PENSATIO N SEC. 10 . The petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto- (1) A statem ent of the author ity un der wh ich a nd the publi c use for which said lands are taken. (2) A description of the lands taken sufficient for the identifica- tion thereof. (3) A statement of the estate or interest in said lands taken for said public use. (4) A plan sho wing the land s taken. (5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken. Upon the filing of said declaration of taking and of the deposit in the registry of the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declara- tion, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto ; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensa- tion awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment ; but interest shall not be allowed on so much thereof as shall have been paid into the registry. No sum so paid into the registry shall be charged with commis sions or pou ndage. Upon the application of the parties in interest, the court may order that the money deposited in the registry of the court, or any part thereof, be paid forthwith for or on account of the just com- pensation to be awarded in said proceeding. If the compensation finally awarded in respect of said lands or any parcel thereof shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount,of the deficiency. Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the Valid ity n ot af fecte d on failure to apply. Vesting of title and right to compensation. Declaration by peti- tioner that lands are taken for use o f Uni ted States. Contents. Authority for taking. Description. Interest in lands. Plans. Estimated amount of just compensation. Title to vest in United States upon filing dec- laration, and deposit in registry of the court amount of estimated compensation. Com pen sat ion to be ascertained and awarded. Upon appl ication, money in registry of court may be paid forthwith. Judgment agai nst United States for defi- ciency, if award exceeds deposit. Provisions for sur- render of possession.

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Kock v. Emmerling/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the eastern district of Louisiana.

An action was brought by Emmerling, an alien, against Kock, a citizen of Louisiana, for the sum of five thousand dollars, on the purchase and sale of real estate.

Emmerling, it seems, being a broker, and engaged in the purchase and sale of real property, was employed by Kock to sell a certain plantation on the Bayou Lafourche, known as the Letory place, and by his written instructions, the 2d April, 1857, was authorized to sell this plantation above named at two hundred and fifty thousand dollars, payable one-fifth cash, and the remainder in four equal instalments, bearing eight per cent. interest.

The petitioner, it is alleged, after visiting the plantation at various times, and with different persons, finally, on the 19th of April, 1857, made an agreement with Jacob Denny, a resident of Louisiana, to purchase the plantation at the price fixed, provided the said Kock would so change the terms of payment as to receive forty thousand dollars in cash, and the remainder in six annual instalments, bearing seven per cent. interest.

Kock consented to the terms, and the 29th April he and Denny met at New Orleans to complete the contract. Kock insisted that for the first year's credit a good acceptance for thirty thousand dollars should be given, and agreeing, if this were done, the five thousand dollars remaining on the first term should be equally divided among the other five terms, so that the first year's payment should be thirty thousand dollars, and the other five credit terms should be thirty-six thousand dollars each. And he agreed to take as satisfactory the acceptance of Messrs. Fellows & Co., or Messrs. Lavoe & McColl, commission merchants, of New Orleans. Messrs. Fellows & Co. agreed to accept for the thirty thousand dollars, and Denny offered to advance the forty thousand dollars, and in every other respect to carry out and complete the proposed contract. But Kock refused to comply with his agreement, capriciously, as it would seem, as he assigned no reason for his refusal, except that he was going to Europe on a visit with his family, and had no time to execute the title papers. Denny proposed to provide for the payments, and receive the title on his return, but he refused to sell the plantation.

The petitioner alleged that the contract was fully executed on his part, and on the part of Denny; and he claims a recompense for the service in which he was engaged, at the rate of two per cent. on two hundred and fifty thousand dollars, making the sum of five thousand dollars, said per centage being the usual established rate of broker's commission on the sales of plantations.

The defendant denies the allegations of the bill in the Circuit Court.

A judgment was entered in the Circuit Court for the sum claimed by the petitioner; from which judgment the defendant has appealed to this court.

In his statement of facts, the district judge says: 'It is established by the proof that the price of the plantation was two hundred and fifty thousand dollars, and the rate of commissions of brokers on sales of plantations was two per cent.' This is the ordinary mode of bringing before this court a writ of error on a statement of facts in Louisiana by the district judge. McGavock v. Woodlief, 20 How., 225.

There would seem to be no doubt on the merits of this case. The terms of the contract as to the sale were specific and unmistakable, and everything was done that could be done by the purchaser to carry out the contract; but the vendor, without any reason, refused to complete it.

The broad ground is assumed, that no contract of this character can be specifically enforced, unless it has been fully executed.

In the case of McGavock, above cited, the court say: 'The terms of the sale, as given by the vendor to the plaintiff, the broker, were simple and specific, &c., and Long, the purchaser, agreed to these terms, as averred in the petition, and not questioned in the case; and if he had offered, and was in a condition to consummate the agreement according to its terms, no doubt the commission would have been earned, and the recovery below right.' But a change was proposed by Long, which prevented the arrangement.

Civil Code, 2035, declares, 'The condition is considered as fulfilled, when the fulfilment of it has been prevented by the party bound to perform it.' In addition to this, the following authorities have been cited: Righter v. Alamon, 4 Rob., 45; Wells v. Smith, 3 La. Rep., 501; Levistones v. Landreaux, 6 Annual, 26; Lestrade v. Perrera, 6 Annual, 398.

It is not perceived why a contract to sell property, real or personal, on commission, should not be governed by the same rules as other sales. If a usage has been established in Louisiana, as seems to be the case, for the sales of plantations, such usage, being reasonable, should govern in the absence of a special agreement.

Nothing is more common in our large cities than to charge brokerage for procuring the loan of money. This varies as the money market rises or falls. One per cent., and sometimes two, is charged for this service. The same rule applies as to the sale of property. Where the contract is fair, it is not perceived why such compensation should not be paid, as agreed by the parties, or by an established usage.

Where the vendor is satisfied with the terms, made by himself, through the broker, to the purchaser, and no solid objection can be stated, in any form, to the contract, it would seem to be clear that the commission of the agent was due, and ought to be paid. It would be a novel principle if the vendor might capriciously defeat his own contract with his agent by refusing to pay him when he had done all that he was bound to do. The agent might well undertake to procure the purchaser; but this being done, his labor and expense could not avail him, as he could not coerce a willingness to pay the commission which the vendor had agreed to pay. Such a state of things could only arise from an express under standing that the vendor was to pay nothing, unless he should choose to make the sale.

The judgment of the Circuit Court is affirmed.

Mr. Justice CATRON and Mr. Justice GRIER dissented.

title: Kock v. Emmerling/Opinion of the Court


text: Talk:Kock v. Emmerling/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1469

 1418 SEVENTIETH C ONGRESS. SESS. II. CH. 416 . 1929 . pet itio ner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable. Setting date for trial and selection of jury SETTING DATE FOR TRIAL AND SELECTION OF JURY . Court to set date SEC. 11 . When all the persons who have been summoned or pub- up on appearance of persons summoned, lished against in said case, as hereinbefore provided, have either etc ' answered or are in default as aforesaid, and all persons under legal disability have answered by their guardians ad litem, or in the judgment of the court ample opportunity has been given for the same, the case shall be regarded as ready for trial, and, upon the application of any party to said suit, the court shall forthwith set an early date to be especially fixed by it, not less than ten nor more than twenty days from the date of such application, for the trial of the issues of law and fact raised in said case, and the ascertain- ment of the compensation or damages to be awarded for the taking of the lands to be condemned. The court shall thereupon order the jury commission to draw from the special box provided for by law the names of as many persons, not less than twenty, as the court may direct, and to certify said names to the clerk of the Supreme Court of the District of Columbia as a panel of prospective jurors. The persons so certified shall be thereupon summoned by the United States marshal for the District of Columbia to appear in said court on the day specially fixed for the trial of said cause. Before selecting or impaneling said jury, the court may, in its discretion, cause a second, third, or other further list of prospective jurors to be drawn, certified, and summoned in like manner. From the per- sons so certified and summoned, the court, after examination on oath and in open court as to their qualifications, shall select and impanel a jury of five capable and disinterested persons who shall have the qualifications of jurors as prescribed by law for the courts of the District of Columbia, and in addition thereto shall be free- holders of said district and shall not be in the service or employment of the United States or of the District of Columbia. Drawing of jury. Jur y to be impan- eled. Oath of juro rs. Qua lif ic ati on re- quire ment. View. Jury to view lands before hearing evidence. Trial. Procedure. Evidence by pa rty claiming interest may be submitted as to value, etc. OATH OF JUROR SEC. 12 . To the jurors so selected and impaneled the court shall administer an oath or affirmation that they are not interested in any manner in the lands to be condemned and that they are not to their knowledge related to any person interested therein, and that they will impartially and to the best of their judgment ascertain, appraise, and award just compensation for the lands to be condemned and taken in said proceeding. VIEW SEC. 13 . After being selected, impaneled, and sworn, and before hearing the evidence, the jury shall be taken by the marshal upon the lands to be acquired at a time to be fixed by the court in order to view the said lands ; and all parties in interest, their attorneys, and representatives shall have the right to be present at such view. TRIAL SEO. 14 . After such view and the jury shall have returned to the court, the trial of said cause shall be proceeded with before the court and jury. Any person who has appeared in the cause claiming any right, title, interest, or estate in the land to be taken, or compen- sation on account of the taking of the same, shall have the right to submit evidence concerning the value of such land, parcel by parcel, the nature and extent of his right, interest, or estate therein,

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1470

 SEVENTIETH C ONGRESS. SEss. II. CH. 416. 1929. and the compensation justly due for the taking of the same. No new structure or substantial alteration of a permanent nature, the purpose or natural effect of which is to enhance the value of the land to be taken, erected, or made thereon after the institution of the condem- nation proceedings shall be taken into consideration in assessing and awardi ng com pensat ion f or sai d land. If the land to be valued shall have been taken by virtue of a declaration of taking, as pro- vided in this Act, said land shall be valued for the purposes of compensation as of the date of such taking ; and if, by act of the owner or other party claiming to be entitled .to compensation, the value of the land for the use for which it is to be taken has been diminished, as by cutting trees, excavating, grading, or otherwise altering its physical condition, allowance, if petitioner so elects, shall be made in assessing compensation for such diminution in value. Every party, whether petitioner or respondent, may except to any ruling of the court admitting or excluding evidence, granting, reject- Ing, or modifying prayers for instruction, or other ruling made in the cause in like manner as in other civil trials. VERDICT SEC. 15 . At the close of the evidence the court shall charge the jury as in other trials at law and furnish them with a written form to be used in returning their verdict. The members of the jury may separate when not engaged in the consideration of their verdict. When the jury, or a majority thereof, shall have agreed upon their verdict they shall, through their foreman, so notify. the court, which sha ll thereupon pass an order setting a day for the retu rn of the verdict in open court. The verdict shall be in writing subscribed by the jurors concurring therein, and shall set forth, parcel by parcel, the compensation to be paid for the taking of the lands to be condemned. SETTING ASIDE VERDICT 1419 No alteration to en- hance value after pro- ceedings instituted, to be ta ken into consi der- ation. Proceeding if it shall have been taken. Exceptions to rulings. Verdict. To be returned in open court. Contents. Setting aside verdict. SEC. 16. The court shall have power to set aside or vacate the Power of court to t grant new trial, etc. verdict of the jury, or any award contai ned therein, a nd to gran a new trial upon the same grounds as in other trials at law and upo n the ground that said ver dict, or any a ward containe d therein is, in the judgment of the court, grossly excessive, or inadequate, or otherwise unreasonable or unjust. In case the verdict or any award contained therein is set aside or vacated, the court shall award a new trial with respect to the lands as to which said verdict or such award is set aside or vacated ; and the cour t shall fix a date for a new trial and order a new panel of prospective jurors to be drawn, certified, and summoned as hereinbefore provided ; and the cause shall be proceeded with as if no such verdict or award had been rendered. New panel to be drawn and case pro - ceeded with. PROCEEDINGS AFTER VERDICT Proceedings after ver. dict. SEC . 17. No motion for a new trial or to set aside or vacate the for new trial, r n ew tmil, etc. ti cm verdict, in whole or in part, or any award contained therein, shall be mad e after the e xpiration of twenty days, S undays and le gal holi- days excluded, from the rendition thereof ; and if no such motion be filed within such time, the verdict and the award or awards contained ther ein shall bec ome final and conclusive, a nd judgment shall be entered thereon. .54835* -29--PT 1-93

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1471

 1420 Judgment. Judgment entered against United States for sum awarded as just compensation, when verdict becomes final . SEC. 18 . In the event that any verdict or any award contained therein shall become final by lapse of time or that any motion filed to set aside or vacate the same or to grant a new trial in respect thereof shall have been denied or overruled, the court shall enter judgment against the United States in favor of the parties entitled for the sum or sums awarded as just compensation, respectively, for the lands condemned for the use of the United States. Payment of jud g- ment. Force and effect of, as a money judgment SEC. 19. Any final judgment rendered against the United States a gains t Un ited stat es. under any provision of this Act shall have like force and effect as a money judgment rendered aga inst the Unite d States by t he Court of Claims in a suit in respect of which the United States has expressly consented to be sued ; and the amount of any such final judgment shall be paid out of any specific appropriation applicable to the case, if any such there be ; and when no such appropriation exists, said judgment shall be paid in t he same manner (except with respect to interest) as judgments rendered by the Court of Claims in cases under i ts gene ral jur isdict ion. Appeal. Allowed to District Court of Appeals. Title in United States not delayed thereby. j If final award exceed award appealed from, udgm ent agai nst United States for defi- ciency to be entered. Payment of compen- sation into court. To constitute pay- ment. Order declaring title in United States. Money doomed vested in persons own- ing the land. Determination of parties entitled . SEVENTIETH C ONGRESS. SEss. II. CH. 416. 1929 . JUDGMENT PAYMENT OF JUDGMENT APPEAL SEC. 20. Any party aggrieved by any final judgment in a proceed- ing under this Act may appeal therefrom to the Court of Appeals of the District of Columbia, and upon such appeal said court shall have power to review said judgment and affirm, reverse, or modify the same as on appeals in other actions at law. No such appeal, nor any bond or undertaking given therein, shall operate to prevent or delay the vesting of title to said lands in the United States, but upon the filing of a declaration of taking or (if no declaration of taking is filed) upon payment to the party entitled or deposit in the registry of the court, of the amount awarded by any judgment, title shall vest in the United States, saving to all parties their right to just compensation. In the event that the compensation finally awarded and adjudged for such lands shall exceed the amount awarded and adjudged by the judgment appealed from, said court shall enter judgment for the deficiency with interest as hereinbefore provided. PAY MENT OF CO MPENS ATION INTO COUR T SEC. 21. Payment into the registry of the court for the use of all parties entitled of the sum of money adjudged to be just compensa- tion for the lands to be condemned and taken, or for -any parcel thereof, or any interest therein, shall constitute payment of such compensation. Upon such payment, the petitioner shall be entitled to an order declaring that the title to the lands in respect of which such compensation is so paid is vested in the United States of America. The money so paid into the registry of the court shall be deemed to be vested in the persons owning or interested in said lands, according to their respective estates and interests, and said money shall take the place and stand in lieu of the lands condemned. The court, upon the application of the petitioner or of any party in interest, shall have power to determine and direct who is entitled to receive payment of the money so paid into the registry, and may, in its discretion, order a reference to the auditor of the court or a speci al master to ascertain the facts on whic h such determ ination and direction are to be made.

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Morrill v. Cone

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.

It was an ejectment brought by Morrill, a citizen of New Hampshire, to recover from John Cone and Carlos J. Cone the southwest quarter of section thirty-six, township eleven north, range one west, in the county of Warren, and State of Illinois.

Upon the trial, the plaintiff exhibited his title as follows, viz:

1. A patent for the land in question from the United States to Benjamin Abbott, dated April 9th, 1818.

2. A deed for said land from said Abbott to the plaintiff, dated January 9th, 1855.

3. The plaintiff also put in evidence, by way of precaution, a deed to himself from one Nathaniel Abbott, dated October 26th, 1838.

The defendants, in order to show that the title had passed out of the Abbotts to grantees, under whom they made defence, at a time prior to the inception of the plaintiff's title, read to the jury—1. A deed for said land from Benjamin Abbott to Nathaniel Abbott, dated May 9th, 1818.

2. A power of attorney from Nathaniel Abbott, John D. Abbott, and Joseph Low, to Abraham Beck, dated July 14th, 1820, authorizing him to sell and convey 'all those certain lots, pieces, or parcels of land named and described in the annexed list or schedule, situate, lying, and being in the tract appropriated by acts of Congress for military bounties, in the State of Illinoir, and which were severally granted to the persons whose names are annexed to each lot or parcel of land,' with this proviso written immediately after the attesting clause, 'provided, however, that the condition is understood to be such, that our said attorney is to take sufficient security on real estate for all the above lands which may be sold on a credit.'

The annexed schedule contained sixty-four quarter sections, and among them the land in suit. Acknowledged February 12th, 1821, and recorded July 30th, 1821.

As the decision of the case turned upon the execution of this power, and the admissibility of the evidence offered to prove its defective execution, it is proper to state the circumstances under which it was given; and, in doing so, to use the testimony of the witness who was produced, because the second branch of the opinion of this court is, that even if the evidence was admissible, it would not have destroyed the title of the defendants.

In 1820, Beck was acting as agent for the Abbotts and Joseph Low, (under whom the plaintiff, Morrill, claimed,) and who resided in New Hampshire.

On the 31st of May, 1820, Beck wrote that he had found a purchaser for eighty lots, (including the land in question,) at fifty-seven dollars per lot, making four thousand five hundred and sixty dollars, payable in nine, eighteen, and twenty-four months.

On the 12th of July, 1820, Low, who appeared to manage the business, wrote to Beck that he would accept the offer and send a power of attorney by the next mail.

On the 14th of July, 1820, the power was executed and transmitted to Beck. The concluding part of the instrument was as follows, viz:

'Have made, constitued, and appointed, and by these presents do make, constitute, and appoint, Abraham Beck, of the town of St. Louis, and State of Missouri, our true and lawful attorney, for us and in our names to sell and convey the whole of the said described lands, and make, execute, and deliver good and sufficient warranty deeds for each and every of the aforesaid lands, and to grant and convey the same absolutely in fee simple for such price or sum of money, and to such person or persons as he may think fit and convenient, with such clauses, over-acts, and agreements, as our said attorney shall think fit and expedient, hereby ratifying and confirming all such deeds and conveyances, bargains and sales, which shall at any time be made by our said attorney, touching or concerning the premises.

'In witness whereof, we have hereunto set our hands and seals, this fourteenth day of July, 1820; provided, however, that the condition is understood to be such that our said attorney is to take sufficient security on real estate for all the above lands which may be sold on a credit.

'JOSEPH LOW, [SEAL.]

'NATH'L ABBOTT, [SEAL.]

'JOHN D. ABBOTT, [SEAL.]'

On the 12th of September, 1820, Beck executed a deed to O'Hara, in the names of his employers, 'for and in consideration of the sum of three thousand five hundred and thirty-four dollars to them in hand paid, the receipt whereof is hereby acknowledged.'

On the same day, viz: September 12, 1820, O'Hara gave six promissory notes to Beck, payable at different times, and executed the following instrument:

'Whereas I have this day purchased of Abraham Beck, as attorney of Joseph Low and others, ninety-two quarter sections of Illinois military bounty lands, for which I have agreed to pay him at the rate of fifty-seven dollars each, amounting to five thousand two hundred and forty-four dollars, which is payable, one-third at nine months, one-third at eighteen morths, and one-third at twenty-four months, for which I have given my notes payable as above; and whereas I have given my notes payable as above; and whereas some defects exist in the power of attorney by which he has conveyed fifty-seven quarter sections, part of the above, I do covenant and agree with the said Abraham Beck, that, whenever he gets a power of attorney to convey said lots, and confirm his proceedings, and deliver the same to me, that I will execute and deliver to the said Abraham Beck, as attorney for the said persons mentioned, a mortgage upon good and sufficient real estate, sufficient to secure the payment of the above notes.

'ST. LOUIS, September 12, 1820.

'Recorded December 6, 1821.

'WILLIAM H. O'HARA.'

In September, 1820, O'Hara mortgaged the land to Cabann e, which was acknowledged on the 30th of October, and recorded on the 21st of February, 1821.

On the 23d of November, 1820, Beck wrote to Mr. Low as follows:

'I understood the intention of Mr. O'Hara, who is the purchaser, to be to give a mortgage on the lands. But it appears I misunderstood him. He offered to take the lands at the price and on the terms mentioned, and to give notes at nine, twelve, and twenty-four months, secured by mortgage. I understood, and so I wrote to you, that the mortgage could be on the lands; but he meant to give a mortgage on sufficient other property. This is a difference of no consequence, and I would have concluded the arrangement; but your power of attorney was a limited one, and under which a conveyance could not be good.

'I therefore made the best arrangement I could, which was to make a conveyance of the property, and give a personal guaranty that a proper power of attorney would be forwarded; upon which Mr. O'Hara gave his notes as agreed, and arranged the balance, and gave me a covenant to execute a mortgage upon sufficient real estate whenever a power of attorney, duly executed, should arrive. I therefore consider the shing completed.

'As to Mr. O'Hara's standing and responsibility, I refer you to Mr. Enoch Long, or to Major Long, both of whom well know him. I have drawn a power of attorney, and have shown [it] to Mr. O'Hara, who approves it. I enclose it to you to be executed.'

The power thus enclosed, omitted the proviso relative to the security on real estate, retaining the date of July 12, 1820.

On the 12th of February, 1821, this power was again executed and transmitted to Mr. Beck; but before its execution Low added the proviso, making it read as before.

On the 30th of July, 1821, the power was recorded.

In October, 1822, the mortgage which O'Hara had given to Cabann e was foreclosed, and the land sold. The defendants claimed under a deed from the commissioner appointed to make the sale and several mesne conveyances, the last of which was to the defendant, John Cone, in 1850.

The bill of exceptions recited the evidence to establish all these facts, together with the deposition of Low, and concluded as follows:

'This being all the evidence in the case, and the court being of opinion that the title of the defendant, John Cone, to the premises in controversy, deduced as aforesaid, was a good and valid title, superior and paramount to the title of the plaintiff, so instructed the jury, who found their verdict accordingly.'

Upon which exception, the plaintiff brought the case up to this court.

It was submitted on printed argument by Mr. Williams for the plaintiff in error, and Mr. Browning for the defendant.

The arguments of the counsel upon both sides were so much involved with the questions of fact, that it would be difficult to report any discussions of abstract principles of law. They are therefore omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Morrill v. Cone


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1472

 SE VE NT IE TH CONGRESS. SESS. II. Cu. 416. 1929 . 1421 DELIVERY OF POSSESSION SEC. 22 . In cases in which possession shall not have been awarded pursuant to a declaration of taking, when the adjudged compensation shall have been paid into the registry as directed in the judgment of the court and a certified copy of such judgment, with a certificate of the clerk of the court showing such paym ent, has been served upon the person in possession of said lands, such person shall, upon demand, deliver possession thereof to the petitioner. In case posses- sion is not delivered when so demanded, the petitioner may apply to the court without notice (unless the court shall require notice to be given) for a writ of assistance, and the court, upon proof of the service of the copy of the final order or judgment and certificate of the clerk showing payment as aforesaid, shall thereupon cause such writ to be issued, which shall be executed in the same manner as when issued in other cases for the delivery of possession of real property. AMENDMENTS GENERAL PROVISIONS SEC. 24 . In all proceedings under this Act, where the mode or manner of conducting the proceeding is not expr essly provided for by law, the court shall have power to make all necessary orders and give all necessary directions to carry into effect the object and intent of this Act and of the several Acts of Congress heretofore or here- after enacted conferring authority to acquire lands for the use of the United States. Delivery of posses- sion. Provisions for. Writ of assistance if possession not deliv- ered. Amendments. SEC. 2 3 . In all proceedings under this Act the court shall have allower o f court t o power at any stage of the proceeding to allow amendments in form or subs tance in any petition, citation, summons, process, answer, declaration of taking, order, verdict, or other proceeding, including amendment in the description of the land s sought to be condemned, whenever such amendment will not impair the substantial rights of any party in interest. . General provisions. Authority of court to make necessary orders, etc. PROVISIONS FOR SAVING PENDING PROCEEDINGS 'Provisions fo r sav in g pending proceedings. SEC. 25. The repeal, express ress or implied, of any existing law or pendi Ad not t« off ~ y g ng proceedings. o the alt eration or amendment thereof by virtue o f anything in this Act contained shall not affect (1) any act done or any right, includ- ing the right to appeal, accruing or accrued under the law so repealed, altered, or amended, or (2) any suit or proceed ing pending in the Su preme Court o f the D istric t of Co lumbia, or in the Court of Appeals of the District of Columbia, or the Supreme Court of the United States upon writ of error, appeal, certificate, writ of certio- rari, or upon application for writ of error, appeal, certificate, or writ of certiorari, at the time of the taking effect of this Act ; but all suits and proceedings shall be proceeded with and disposed of in the same manner and with the same effect as if this Act had not been passed, save and except only that in any condemnation suit or proceeding In condemnation suits, if commissioners for the condemnation of land for the use of the United States of appraisement have ending in the Supreme Court of the District of Columbia in which n«t been appointed, pending , trial, etc ., according to commissioners of appraisement shall not have been appointed by this Act. the court at the time of the taking effect of this Act, the trial of .said condemnation suit or proceeding shall proceed and be conducted from th at point forward in accordance with the provisions of this Act ; and all evidence as to the value of the property to be condemned and tak en shall be given before the court and j ury as in this Act pr escribed and the matter shall be proceed ed with and disp osed of in the same manner and with like effect as if the proceeding had been

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text: Talk:Morrill v. Cone

title: Talk:Morrill v. Cone


text: Dictionary of National Biography, 1885-1900/Aston, Walter


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1473

 1422 District of Columbia suits, etc. Proceedings for con- demnation of land for schoo lhouse s, etc ., to follow provisions of District Code. Post, p. 1437. March 1, 1929. [II. R. 15468.] [Public, No. 868 .] New Orl eans, L a. Authority for site, etc ., for subtreasury, etc ., at repealed. Vol. 36, p. 694, re- pealed. March 1, 1929. [S .1965.] CHAP. 418 .-An Act To authorize the appointment of a district judge for [Public, No. 869.] the northern district of Mississippi. Be it enacted by the Senate and House of Representatives of the united states courts. United States o f America in Congress assembled, That the President Mississippi northern judicial district. is hereby authorized to appoint, by and with the advice and consent Ap pointm ent of judge for, authorized. of the Senate, a judge of the District Court of the United States Vol. 36, p. 108 7 for the Northern District of Mississippi, who shall reside in such amended. district and whose compensation, duties, and powers shall be the same as now provided by law for other district judges. SEC. 2 . Upon the appointment of such judge, the present judge of the District Courts of the United States for the Northern and South- ern Districts of Mississippi shall be the judge of the District Court of the United States for the Southern District. of Mississippi. Such judge for the southern district of Mississippi shall reside in such district. Approved, March 1, 1929. Present ju dge for northern and southern dist ricts, to be judge for so uther n dis trict. SEVENTIETH CONGRESS. SESS. II. CHs. 416-419 . 1929 . originally begun and the petition filed and all prior proceedings had under and pursuant to the provisions of this Act and after the taking effec t of the same. PROCE EDINGS ON BEHALF OF THE D ISTRICT OF COLUMB IA NOT A FFECTED BY THIS ACT SEC. 26 . This Act shall not affect any suit or proceeding begun, now pending, or hereafter to be instituted under chapter 15 of the Code of Law for the District of Columbia, by or on behalf of the Commissioners of the District of Columbia for the condemnation of land for sites of schoolhouses, fire or police stations, or for a right of way for sewers, or for any other municipal use ; but as to all such suits and proceedings, and the right of said commissioners to institute the same, said chapter shall be and remain in full force and effect as if this Act had not been made. Approved, March 1, 1929. CHAP. 417 .-An Act To repeal the provisions of law authorizing the Secre- tary of the Treasury to acquire a site and building for the United States sub- treasury and other governmental offices at New Orleans, Louisiana. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That section 11 of the Act entitled "An Act to increase the limit of cost of certain public buildings ; to authorize the enlargement, extension, remodel- ing, or improvement of certain public buildings ; to authorize the erection and completion of public buildings ; to authorize the pur- chase of sites for public buildings, and for other purposes," approved June 25, 1910, is hereby repealed. Approved, March 1, 1929. March 1, 1929. [S. 2206.] [Public, No. 870.] Be it enacted by the Senate and House of Representatives of the Judicial Code. United States o f America in Congress assembled, Tha t sec tion 260 amended. ' p 115 T of the Judicial Code as amended by section 6 of the Act of Feb- U. S. Code, p.9os. ruary 25, 1919, chapter 29, be, and the same hereby is, amended so as to read as follows CHAP. 419 .-An Act To amend section 260 of the Judicial Code, as amended.

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text:
Morrill v. Cone/Opinion of the Court

This suit was brought for the recovery of a parcel of land lying in the tract appropriated for military bounties in Illinois, and granted by the United States in 1818 to Benjamin Abbott, a private in their army in the war of 1812, as bounty. The title of the plaintiff consisted of a certified copy of the patent to Abbott, and a quit-claim deed of Abbott to him, dated in 1855. He also produced a deed from Nathaniel Abbott to him, dated in 1838. The defendants exhibited the original patent to Abbott; his deed to Nathaniel Abbott, dated in 1818, for the same land; a deed from Nathaniel Abbott, John Low, and John D. Abbott, dated 12th September, 1820, to William O'Hara, and executed by Abraham Beck as attorney, and connected themselves with this deed by a number of mesne conveyances, the last of which was to the defendants, and was executed in April, 1850. They entered upon the land under this deed, and paid taxes until the commencement of this suit. These conveyances were recorded in the proper office. The questions presented by the bill of exceptions sealed for the plaintiff on the trial arise on the conveyance to William O'Hara, by Nathaniel Abbott, John Low, and John D. Abbott.

This deed purports to have been made upon a pecuniary consideration, the amount and receipt of which is acknowledged. The letter of attorney to Beck is dated the 14th July, 1820, and was recorded the 30th July, 1821. It authorizes the attorney to sell and convey some sixty-four parcels of land, including the one in dispute, in the military tract described in a schedule annexed, for such price and to such persons as he might think fit, and to make, execute, and deliver good and sufficient warranty deeds to them. To the ordinary testimonium clause a proviso was added, 'that the condition is understood to be such, that our said attorney is to take sufficient security on real estate for all the lands which may be sold on a credit.' The donors of this power of attorney reside in New Hampshire; the attorney in Missouri.

The plaintiff read a deposition of John Low, one of the donors of the power, from which we collect that Beck, the attorney, was verbally authorized to find a purchaser for the lands described in the schedule, and other parcels in the military tract in Illinois, and agreed with O'Hara upon the price and term of credit. That this agreement was communicated by letter to the witness, who sanctioned it, and sent a power of attorney to Beck to complete the sale and to execute the titles, but to reserve a mortgage on the lands sold to secure the payment of the purchase money.

O'Hara objected to giving a mortgage upon the lands purchased by him, but offered to give security upon other real property. Thereupon the attorney prepared a deed for all the lands embraced in the contract to O'Hara, and took his notes for the purchase money, and gave to him his guaranty that his constituents would confirm the sale, and received from him a covenant that whenever Beck should receive a power of attorney to convey said lands and confirm his proceedings, and deliver the same to him, O'Hara, he would deliver to Beck for his constituents a sufficient mortgage upon real property to secure the price. The power of attorney produced by the defendants was prepared by Beck without the condition, and sent to Low, to be executed by him and the others, to enable him to fulfil the agreement. This was done by them after adding the condition, on the 12th February, 1821. The witness says that there was no schedule attached to it. He answers from information and belief that Beck did not collect from O'Hara any money, or receive from him any further security. The district judge, upon this testimony, instructed the jury that the defendants had the superior title, and their verdict was accordingly rendered for them.

The authority conferred upon the mandatary by the letter of attorney is special and limited, and his acts under it are valid only as they come within its scope and operation. He was bound to conform to the conditions it contains, and in its execution to adopt the modes it indicates.

He was authorized to sell the lands for cash, or on a credit with security on real property, to execute a deed describing the consideration, acknowledging its payment, and to receive the money or securities the purchaser might render. Peck v. Harriott, 6 S. and R., 149; 9 Leigh R., 387. But he was not authorized to exchange the lands for other property, or to accept the notes of the vendee as cash, or to accept personal security, or any form of security except that specified in the condition. Non est in facultate mandatarii addere vel demere ordini sibi dato. These propositions are not disputed as applicable to cases arising between parties to the original contract, in which the limitations on the authority and the circumstances of departure from it in the execution are understood. But it is contended that bona fide purchasers are entitled to repose credit in the recitals and declarations of the attorney as expressed in his deed, that disclose the mode in which the authority has been exercised, and will be protected against their falsity. That the principal is estopped to deny their truth. This argument rests for its support upon the hypothesis that the delinquency of the mandatary is a breach of an equitable trust, a trust cognizable in a court of chancery only, a court that will not administer relief against a bona fide purchaser having the legal title. It assumes that the deed made by the attorney invests the grantee with the legal title, notwithstanding the non-compliance with the condition. If this were true, the inference would follow. Danbury v. Lockburn, 1 Meri., 626. But the assumption is not tenable. The attorney was not invested with the legal estate. He was the minister, the servant, of his constituent, and his authority to convey the legal estate did not arise except upon a valid sale in accordance with the requirements of the power.

Doe v. Martin, 4 T. R., 39; Minot v. Prescott, 14 Mass. R., 495. The deed executed by the attorney is apparently within the scope of his power, and the admission of payment of the consideration is competent testimony of the fact. American Fur Co. v. United States, 2 Peters R., 358. But it is competent to his principal to show that the transaction was in appearance only, and not in fact within the authority bestowed.

And the question arises, was there any testimony to be submitted to the jury to repel the presumption that there was a bona fide execution of the trust reposed in the attorney? One of the donors of the power, but who does not appear to be interested in the land otherwise than by the recital in that instrument, admits his knowledge of the terms of the sale made to O'Hara; that this power was remitted to Beck to validate the contract, as far as it had been executed, and to enable him to complete it according to the engagement that had been entered into.

The power of attorney and the deed had been on the public records for thirty-four years before this suit was commenced, and for five years these defendants had been in the actual possession of the property. It had been repeatedly sold during this long period. To the inquiry made of the witness, whether the purchase money had been paid to the grantors, or whether the security on real property had been taken, he answers: 'This affiant is informed and believes that most of the lands were sold to William O'Hara without security, or the payment of anything in hand upon the promissory notes of the said O'Hara, which, as this affiant is informed and believes, were in the hands of Beck at the time of his death, and copies of which, * *  * as he is informed and believes, *  *  * are annexed.' It is the opinion of the court that this testimony was not admissible; and although it was read to the jury, it did not contain anything to warrant a conclusion unfavorable to the title of the defendants.

Judgment affirmed.

title: Morrill v. Cone/Opinion of the Court


text: Talk:Morrill v. Cone/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1474

 SEVENTIETH CONGRESS. SEss. II. Cus. 419, 420 . 1929 . 1423 "SEC . 260 . When any judge of any court of the United States Retired judges . Resigning after spec appointed to hold his office during good behavior, resigns his office ified years of service, to after havin g held a co mmissi on or commis sions as ju dge of any have pay continued . such court or courts at least ten years, continuously or otherwise, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his resignation for the office that he held at the time of his resignation . But, instead of resigning, any judge other than a Reti ring from acti ve service, a successor to justice of the Supreme Court, who is qualified to resign under the be appointed . foregoing provisions, may retire, upon the salary of which he is then in receipt, from regular active service on the bench, and the Voluntary service President shall thereupon be authorized to appoint a successor ; but him be assigned to a judge so ret iring may nev ertheless be called upon by the senior circuit judge of that circu it and be by him authorized to perform such judicial duties in suc h circuit as such retired j udge may be willing to undertake, or he may be called upon by the Chief Justice and be by him authorized to perform such judicial duties in any other circuit as such retired judge may be willing to undertake or he may be called upon either by the presiding judge or senior judge of any other such court and be by him authorized to perform such judicial duties in such court as such retired judge may be willing to undertake. "In the event any circuit judge, or district judge, having so held a Add it ion al ju dge may be appointed when commission or commissions at least ten years, continuously or other- incapacitated judgeen- wise, and having attained the age of seventy years as aforesaid, en- titled to retire does not shall nevertheless remain in office, and not resign or retire as afore- said, the President, if he finds any such judge is unable to discharge efficie ntly al l the d uties of his office by rea son of mental or phy sical disability of permanent character, may, when necessary for the efficient dispatch of business, appoint, by and with the advice and consent of the Senate, an a dditional cir cuit judge of the circuit or district judge of the district to which such disabled judge belongs . Retiring or ineapaei- And the judge so retiring voluntarily, or whose mental or physical ~ t;u lo ata=0 mani ng condition caused the President to appoint an additional judge, shall j udges. b e held and treated as if junior in commission to the remaining judges of said court, who shall, in the order of the seniority of their respective commissions, exercise such powers and perform such Senior judge to ap ƒ duties as by law may be incident to seniority. In districts where point court officials in there may be more than one district judge, if the judges or a major- case of disagreement. ity of them can not agree upon the appointment of officials of the court, to be appointed by such judges, then the senior judge shall have the power to make such appointments. " Upon the death resignation, or retirement of any circuit or If additional judge be y appointed, vacancy by district judge, so entitled to resign, following the appointment of death, etc., of retired, any additional judge as provided in this section, the vacancy caused not to be filled . by such death, resignation, or retirement of the said judge so entitled to resign shall not be filled ." Approved, March 1, 1929. March 1, 1929. CHAP. 420.-An Act To amend section 4 of the Act of June 15, 1917 (For-	[S.5181 .]	tieth Statutes, page 224 ; section 241, title 22, United States Code). [Public, No. 871 .] Be it e nacted by the senate and Ho use of Repres entatives of the United States o f America in Congress assembled, That section 4 of National defen se, etc. Title VI of the Act of June 15, 1917, chapter 30, entitled "An Act ed Vol . 40p. 224, amend- to punish acts of interference with the foreign relations, the neu- U.S. Code, p. 659. tra lity, and the foreign comm erce of the Un ited States, to punish espionage, and better to enforce the criminal laws of the United • Seizure of arms, etc., States, and for other purposes" (section 241, title 22, United States for export . Code), be, and it is hereby, amended to read as follows :

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1475

 1424 SEVENTIETH CONGRESS. SEss. II. Ciis. 420, 421 . 1929 . Libel proceedings for "SEC, 4. Whenever the person making any seizure under this title condemnation and sale of seized property. (sections 238 to 245, inclusive, of chapter 5, title 22, United States Code) applies for and obtains a warrant for the detention of the property, and (a) upon the hearing and determination of the petition of the owner or claimant restoration is denied, or (b) the owner or cla imant fails t o file a peti tion for resto ration within thirty days after the sei zure, the Uni ted States att orney for the district wherein it was seized, upon direction of the Attorney Jur isdiction of court . Genera l, shal l inst itute l ibel pr oceedi ngs in the Uni ted St ates di strict court or the district court of the Canal Zone or the court of first instance of the Philippine Islands having jurisdiction over the place wherein the seizure was made, against the property for condemna- ti o n ; and i f, after tria l and hearing of the issues involved, the Proceeds of sale. property is condemned, it shall be disposed of by sale, and the proceeds the reof, less th e legal costs and charges, paid into the Proviso. Treasury : Provided, That the court shall order any arms and Delivery to war De- pertinent ofcondemned munit ions o f war so co ndemne d deli vered to th e War Depart ment arm s, etc' of the United States ." Approved, March 1, 1929 . March 1, 1929 . [H. R. 12351.] [Public, No .872.] United States courts. Vol . 39, p . 122, amend- ed. U.S . Code, p. 878. California judicial dis tricts. S outhe rn d istri ct . Northern division . Central division . Southern division . Terms. Northern district . Northern division . Southern division . Terms, CHAP. 421 .-An Act Amending section 72 of the Judicial Code, as amended (United States Code, title 28, section 145) by changing the boundaries of the divisions of the southern district of California and terms of court for each division . Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That section 72 of the Judicial Code, as amended (United States Code, title 28, section 145), be, and the same is hereby, amended to read as follows : "SEC. 72 . The State of California is divided into two districts, to be known as the northern and southern districts of California. The southern district shall include the territory embraced on the 1st day of July, 1910, in the counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, and Tulare, which shall constitute the, northern division of said district ; also the territory embraced on the date last mentioned in the counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura, which shall constitute the central division of said district ; also, the territory embraced on the date last mentioned in the counties of San Diego and Imperi al, whi ch sha ll cons titute the so uthern divisio n of s aid dis trict. Terms of the district court for the northern division shall be held at Fresno on the first Monday in April and the second Monday in October ; and for the central division, at Los Angeles on the first Monday in February and the second Monday in September ; and for the southern division, at San Diego on the second Monday in July and the sec ond Mon day in Janu ary. The northern district shall include the territory embraced on the 1st day of July, 1910, in the counties of Del Norte, Siskiyou, Modoc, Humboldt, Trinity, Shasta, Lassen, Tehama, Plumas, Mendocino, Lake, Colusa, Glenn, Butte, Sierra, Sutt er, Yuba, Nev ada, Sonoma, Napa, Yolo, Pl acer, Solano, Sacramento, El Dorado, San Joaquin, Amador, Calaveras, Stanislaus, Tuolumne, Alpine, and Mono, which shall constitute the northern division of said district ; also the territory embraced on the date last mentioned in the counties of San Francisco, Marin, Contra Costa, Alameda, San Mateo, Santa Clara, Santa Cruz, Monterey, and San Benito, which shall constitute the southern division of said district. Terms of the district court for the northern division of the northern district shall be held at Sacramento on the second Monday in April and the first Monday in October, and at Eureka on the third Monday in July ; and for the southern division of the northern district, at San

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1476

 SEVENTIETH CONGRESS. SESS. II. CHs. 421-424 . 1929 . 1425 Francisco on the first Monday in March, the second Monday in July, and the first Monday in November. The clerk of the district court for the nor the rn d ist rict sha ll main tain an off ice at Sacr ame nto, in cha rge of himself or a deputy, which shall be kept open at all times for the transaction of the business of the court ." Approved, March 1, 1929 . Of fice at S acram ento . March 3, 1929 . CHAP. 422.-An Act To provide for the construction of a children's tuber- 	[H . R. 13752.] culosis sanatorium . [Public, No . 873 .] Be it enacted b y the Senate and House of Representatives of the United States o America in Congress assembled That the Commis- District of Columbia. f Children's tubercu- sioners of the District of Columbia are authorized to acquire, by losis sanatorium . Acquisi tion of site, purchase, condemnation, or ot her wi se, a site, and to cause to be and con stru ction of, con struc ted th ereon, in a ccord ance with p lans and s pecif icatio ns authorized . approved by such commissioners, suitable buildings and structures for use as a childre n's tube rculosis sanator ium, incl uding ne cessary appro aches and roadways, heating and ventilati ng apparat us, furniture, equipment, and accessories. SEC. 2. There is authorized to be appropriated the sum of $500,000, or so much thereof as may be necessary, to carry out the provisions of this Act, to be appropriated in like manner as other appropria- tions for the District of Columbia. Approved, March 1, 1929 . Sum au thorized for . March 1, 1929. CHAP. 423 .-An Act To amend the Act entitled "An Act for the relief of 	[H. R . 13857 .] contractors and subcontractors for the post offices and other buildings and work under the supervision of the Treasury Department, and for other purposes," approved August 25, 1919, as amended. Be it en ac ted by the Senate and House of Representatives of the ' United St ates of America in Congress assembled, Th at the Act District of eoluobia. entitled "An Act for the relief of contractors and subcontractors for house . the post offices and other buildings and work under the supervision of the Treasury Department, and for other purposes," approved August eVol- 41,p.281,amend. 25, 1919, as amended, is amended by adding the following new d bi coptance of date of sentence : " That the date April 6, 1917, shall not apply to the afore- said bid for the United States courthouse in the District of Columbia, said bid, in accordance with the circular letter from the office of the superintendent, United States Capitol Building and Grounds, dated March 17, 1917, having b een delivered on the mo rn ing of April 7, 1917 ." App rov ed, Mar ch 1, 1929. CHAP. 424.-An Act To authorize appropriations for construction at military post s, and for ot her pur poses. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That there is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, not to exceed $50,000, to be expended for the construction and installation of barracks and the necessary utili- ties and appurtenances thereto at Ford Wadsworth, New York. SEC. 2. That there is hereby authorized to be appropriated not to exceed $1 20,000 to be expended by the Secretary of War for the co nstruction or purcha se of thre e heavy se a-going Air Corps retrievers for use in Oahu, Philippine Islands, and Albrook Field, Canal Zone. App rov ed, March 1, 1929. [Publ ic, No. 8 74 .] March 1, 1929. [H. R. 13931.] [Public, No. 875 .] Army F ort Wadsworth, N. Y. Sum authorized for barracks at. Air Corps. S um au thor ized for th ree heavy sea goin g retrievers, Hawaii, Philippines, and Canal zone.

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text:
Cucullu v. Emmerling

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.

In 1857, Emmerling, a resident of New Orleans, an alien subject of the Grand Duke of Hesse Darmstadt, filed his petition in the Circuit Court, alleging that Cucullu had employed him as a broker to sell an estate. The cause was submitted to the court below, which found the following facts, viz:The plaintiff, Louis Emmerling, a resident of the city of New Orleans, and an alien subject of the Grand Duke of Hesse Darmstadt, brings this suit against the defendant, a citizen of Louisiana, to recover the sum of twenty-seven hundred dollars, which he alleges is due him as the amount of his commissions on a sale effected by him as a broker.

The court finds that the defendant, Cucullu, offered his plantation and slaves for sale, for the sum of one hundred and thirty-five thousand dollars, on the following terms, viz: the purchaser to pay in cash the sum of thirty-five thousand dollars, and assume the payment of a note of twenty thousand dollars, payable on the 1st and 4th of February, 1858, and for the residue of the price the purchaser to pay $13,333.33 1/3 on the 10th and 13th of December, 1858; $13,333.33 1/3 on the 10th and 13th of December, 1859; $13,333.33 1/3 on the 10th and 13th of December, 1860; $13,333.33 1/3 on the 10th and 13th of December, 1861; $13,333.33 1/3 on the 10th and 13th of December, 1862; $13,333.33 1/3 on the 10th and 13th of December, 1863-the six last-mentioned sums to bear interest at the rate of five per cent. per annum until maturity, and interest at the rate of eight per cent. after maturity until paid.

The court finds that the plaintiff, Emmerling, in his capacity as broker, offered to find a purchaser for the plantation and slaves; and that he opened a negotiation with A. W. Walker, who finally purchased the same on the terms above mentioned; that the written contract of sale attached to the petition is in the handwriting of the plaintiff, and signed by the defendant and Walker.

The court further finds, that while there was no direct or positive proof that the defendant, Cucullu, promised to pay the plaintiff his commissions for negotiating the sale, yet that he did recognise the services of the said plaintiff, and his own liability to pay for those services, in a conversation which he had with the said plaintiff in the presence of A. W. Walker, the purchaser of the property.

The court further finds that it was through the intervention of the plaintiff, as broker, that the sale of the property was effected. The facts upon which the foregoing conclusions of the court are founded were mainly furnished in the testimony of said A. W. Walker. The witness, Guyol, the notary public before whom the title to the property was passed, also proved that the defendant, Cucullu, inquired of him the amount of the commissions charged by the broker, and that he (Guyol) answered, that the amount was two per cent. on the price of the property. The usual rate at which broker's commissions for like services are charged is two per cent., as appears from the testimony of several brokers who were examined on the trial. It is therefore ordered and adjudged, that the plaintiff recover from the defendant the sum of twenty-seven hundred dollars, the amount of his commissions as broker; and it is further ordered that the defendant pay the costs of this suit.

THEODORE H. McCALEB, U.S. Judge.

After an unsuccessful motion for a new trial, the defendant sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Taylor for the plaintiff in error, and Mr. Benjamin for the defendant.

Mr. Taylor made the following points:

1. There was no direct or positive proof that the plaintiff in the court below-Louis Emmerling-was employed by Cucullu to negotiate a sale of his plantation, or that he had promised to pay him commissions for negotiating the sale. The conclusion that he did so is drawn, it is stated, from Cucullu's 'recognition' of the services of the plaintiff, and of his own liability to pay for those services, in a conversation which he had with the plaintiff in the presence of A. W. Walker, the purchaser of the property; and the facts upon which this conclusion is based were testified to by a single witness, viz: Mr. A. W. Walker himself.

2. The agreement or contract under which Emmerling pretends to claim the payment by Cucullu of $2,700, as his commissions, cannot be proved in the State of Louisiana by one witness; and the judgment of the court below must be reversed for want of sufficient evidence to sustain it, as disclosed by the statement of facts in the case.

Cormier v. Le Blanc, 8 N. S., 458; 3 L. R., 214.

Gasquit v. Kokeenot, 5 L. R., 268.

Lallande v. McMaster, 16 L. R., 532.

Gillespie v. Day, 19 L. R., 263.

Brent v. Slack, 10 R. R., 371.

Mr. Benjamin said:

Louis Emmerling recovered a judgment in the Circuit Court against J. S.C.ucullu for twenty-seven hundred dollars, for brokerage on the sale of a plantation. The statement of facts shows that the commissions were earned by Emmerling, and the writ of error seems to have been prosecuted solely to vex and delay the defendant in error, who prays the court to allow him damages under the twenty-third rule.

Mr. Justice GRIER delivered the opinion of the court.

title: Cucullu v. Emmerling


text: 1911 Encyclopædia Britannica/Blockhouse

title: 1911 Encyclopædia Britannica/Blockhouse


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1477

 1426 SEVENTIETH CONGRESS. SEss. II. Cii. 425. 1929 . March 1,1929. CHAP. 425 .-An Act To amend the Act of May 17, 1928, entitled "An Act	[H . R . 14148.]_ to a dd certain lands to the Missou la Nationa l Forest, Montana ." [Public, No. 876 .] Be it enacted by the Senate and House of Representatives of the Mi sso ula Nat ion al United States of America in Congress assembled, That the Act of Forest, Mont. Ante, p. 599, amend- Congress approved May 17, 1928, entitled "An Act to add certain ed. lan ds to the Mis soula Nationa l Forest, Mont ana," be, and the same is hereby, amended by striking out the word "and"inline81of section 1 of said Act, and inserting in lieu thereof the word " to," sa that said Act shall read as follows Public lands added Be it enacted by the Senate and House o f Representatives of the to. United States of America in Congress assembled, That, subject to any valid existi ng claim or e ntry, all land s of the Unit ed States within the areas hereinafter described be, and the same are hereby, added to and made parts of the Missoula National Forest to be herea fter administ ered under the laws and reg ulations rela ting to t he na ti ona l fo res ts ; and the prov isions of the Act approved March Vol. 42, p. 465. 20, 1922 (Forty-second Statutes, page 465), as amended, are hereby extended and made applicable to all other lands within said described areas : Description. East half section 19, township 11 north, range 7 west ; sections 2 and 12, township 11 north, range 8 west ; west half section 1, sections 2 to 11, inclusive, west half section 12, township 12 north, range 7 -west ; sections 1 to 17, inclusive, lots 5, 8, 9, 10, 11, 12, 13, 16, and 17, sec tion 1 8, lots 3, 4, 5, 8, 9, sout hwest q uarter northe ast qua rter s ec- tion 20, sections 21 to 28, inclusive, lots 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12, section 33, sections 34, 35, and 36, township 12 north, range 8 west ; lots 1, 2, 3, and 7, section 1, north half section 2, section 6, township 12 north, range 9 west ; west half section 4, sections 5 and 6, township 13 north, range 6 west ; all township 13 north, range 7 west ; sections 1 to 5, inclusive, and 7 to 36, inclusive, township 13 north, range 8 west ; west half northeast quarter, northwest quarter, lots 3 and 4, section 6, east half, southwest quarter section 8, south half section 10, north half northeast quarter, southwest quarter northeast quarter, northwest quarter, north half southwest quarter, southeast quarter southeast quarter section 12, sections 13 to 36, in- clusive, township 13 north, range 9 west ; sections 1 to 5, inclusive, east half section 8 ; sections 9 to 16, inclusive, north half northeast quarter, southeast quarter southeast quarter section 17, east half northeast quarter, northeast quarter southeast quarter section 20, sections 21 to 27, inclusive, east half and north half northwest quar- ter section 28, section 33 north half, north half south half, section 34, section 35, and section 36, township 13 north, range 10 west ; lots 4, 5, 6, and 7, section 6, west half section 18, township 14 north, range 5 west ; sections 1 to 3, inclusive, north half, southeast quarter sec- tion 4, south half northeast quarter, lots 2, 3, and 4, southeast quar- ter section 7, south half section 8, southeast quarter northeast quarter, southeast quarter, south half southwest quarter section 9, sections 10 to 13, inclusive, north half southwest quarter, north half southeast quarter, southeast quarter southeast quarter section 14, sections 15 to 21, inclusive, north half southwest quarter, north half southeast quarter, southwest quarter southeast quarter section 22, east half northeast qua rter, north h alf northwest quarter, sout h- west quarter northwest quarter, southeast quarter southwest quarter, southeast quarter section 23~ sections 24, 25, and 26, north half and southwest quarter section 2l, sections 28 to 33, inclusive, east half northeast quarter, northwest quarter, north half southwest quarter, lot 1, northeast quarter southeast quarter, lot 4, section 34, all section 35, township 14 north, range 6 west ; west half northeast quarter, northwest quarter, east half southwest quarter, south half southeast quarter, northwest quarter southeast quarter section 2, south half

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text: Talk:Cucullu v. Emmerling

title: Talk:Cucullu v. Emmerling


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1478

 SE VENT IETH CONGRESS. SESS. II. CH. 425 . 1929 . 1427 southwest quarter section 3, south half northeast quarter, south half section 4, lots 5, 6, 7, and 8, section 7, northeast quarter, southwest quarter, north half southeast quarter, southwest quarter southeast quarter section 8, sections 9 and 10, northeast quarter northeast quarter, west half northwest quarter, southwest quarter, west half southeast quarter, southeast quarter southeast quarter section 11, north half northwest quarter, southwest quarter northwest quarter, east half southwest quarter, southeast quarter section 12, sections 13 to 36, inclusive, township 14 north, range 7 west ; lots 1, 2, west half sec tion 4, section 24, sout h half s outhwest quarter section 32 town - ship 14 north, range 8 west ; sections 5 to 8, inclusive, west half sec- tio n 17, se ction 18, west h alf nort heast qu arter, n orthwest quarter , southeast quarter, section 20, northeast quarter section 29, township 14 north, range 9 west ; section 2, southwest quarter northeast quar- ter, lot 4, south half northwest quarter, southeast quarter section 4, section 10, north half, north half south half, all section 12, east half, east half west half and southwest quarter southwest quarter section 24, south half south half section 26, southwest quarter northeast quarter and south half section 30, north half and southwest quarter sec tion 32, east ha lf north east qua rter, so uthwest quarter northeas t quarter, southeast quarter northwest quarter, and south half sec- tion 34, township 14 north, range 10 west ; southwest quarter north- east quarter, west half, west half southeast quarter section 18, north half, north half southwest quarter section 30, township 15 north, range 5 w e s t ; lot 2, west half, we st half southeas t quarter, south east quarter southeast quarter section 2, sections 3 to 6, inclusive, north- east quarter, lots 1 and 2, east half southeast quarter section 7, sec- tions 8 to 11, inclusi ve, west half no rtheast quarter, west half, sout h- east quarter section 12, sections 13 to 17, inclusive, east half east half section 18, east half, lots 2, 3, and 4, section 19, sections Am endment 20 to 28, inclusive, north half, north half south half section 29, northeast quarter, northeast quarter southeast quarter section 30, sections 33, 34, and 35, township 15 north, range 6 west ; lots 1, 2, 7, and 8, section 2, lots 1 to 14, inclusive, east half southwest quarter section 6, township 15 north, range 7 west ; southwest quarter, west half southeast quarter section 2, sections 3 to 10, inclusive, south- w est quarter northwest quarter and southwest quarter section 12, sections 14 to 22, inclusive, sections 26 to 34, inclusive, township 15 north, range 8 west ; all township 15 north, range 9 west ; sections 1 to 5, inclusive, northeast quarter, north half southeast quarter, southeast quarter southeast quarter sec ti on 6, northeast qu ar ter northeast quarter, south half northeast quarter, northeast quarter southwest quarter, lo ts 5, 6, and 7, northwest quarter southeast quarter, section 7, lot 4, north half, east half southwest quarter, southeast quarter, section 8, sections 9 to 15, inclusive, east half, southwest quarter section 17, sections 20 to 28, inclusive, north half, northeast quarter southwest quarter, southeast quarter lots, 3 and 5, se ction 29, east h alf nort heast qu arter, s outheast quarter southea st qu arter se ction 32 , sectio ns 33 to 36, inc lusive, township 15 nort h, r ange 1 0 wes t ; east half, east sout hwest quarter an d lot 3, section 2, we st half section 4, west half nor theast q uarter, northwes t quarte r, northwest quarter southwest qua rt er, northwest quarter southeast quarter section 12, township 15 north, range 11 west, all Montana base and meridian. SEc. 2. The Secretary of the Interior is hereby authorized to con- Stock-raising entries y ~ on la nds herei herein, prior sider and allow applications affecting any lands described in this t oApri 11,1 926,a llow ed. Act which were filed prior to April 1, 1926, under the Stock Raising vol. 30,1, .,362 . Homestead Act of December 29, 1916 (Thirty-ninth Statutes, pa ge 869 4). Approved, March 1, 1929.

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text:
Cucullu v. Emmerling/Opinion of the Court

The declaration charges that the plaintiff below was employed by Cucullu, as a broker, to sell a plantation; that he effected a sale on terms satisfactory to Cucullu; that the sale was consummated, by delivery of the property and receipt of the purchase money; and that for these services the plaintiff was entitled to a brokerage of two per cent., which Cucullu refused to pay.

The facts of the case are stated by the court below in the nature of a special verdict, finding the allegations of the declaration to be supported by the evidence.

It has been objected here, that such a contract cannot be proved by one witness, according to the law of Louisiana. That objection should have been made to the court below, if it is worth anything. But the case stated, made by the judge to whom the cause was submitted, finds facts, and not evidence of facts; consequently, this court cannot inquire, unless upon some bill of exceptions properly taken, whether the evidence was sufficient to justify the finding of the court. It would be granting a new trial, because the verdict is not supported by the evidence, without any bill of exceptions to the admission of testimony or to the charge of the court.

The judgment of the court below is therefore affirmed.


text: Talk:Cucullu v. Emmerling/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1479

 1428 SEVENTIETH CONGRESS. SEss. II. Cix. 426 . 1929 . March 1, 1929. CHAP. 426 .-An Act Validating certain conveyances heretofore made by [H. R. 14457.] Central Pacific Railway Company, a corporation, and its lessee, Southern Pacific [Public, No. 877 .1 Company, a cor poration, involving certain portions of right of way, in and in the vicinity of the city of Lodi, and near the station of Acampo, all in the county of San Joaquin, State of California, acquired by Central Pacific Railway Company under the Act of Congress approved J uly 1, 1862 (volume 12, United States Statutes at Large, page 489), as amended by the Act of Congress approved July 2, 1864 (volume 13, United States Statutes at Large, page 356). Be it enacted by, the Senate and House of Representatives of the Centra l Pacif ic Rai l- United States o f America in Congress assembled, That the convey- way land grant. Conveyancesfrom,in ances hereinafter particularly described and heretofore executed by SCalif., legalized. Cou nty, Central Pacific Railway Company, a corporation, and its lessee, Southern Pacific Company, a corporation, involving certain lands or interests therein, in and in the vicinity of the city of Lodi, and near the stati on of Acampo, all in the co unty of San J oaquin, State of California, and forming a part of the right of way of said Central Pacific Railway Company, granted by the Government of the United Vol.12,p.489 . States of America by an Act of Congress approved July 1, 18 62, entitled "An Act to aid in the construction of a railroad and tele- graph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes" (volume 12, United States Statutes at Large, page Vol . 13, P. 856. 489), and by said Act as amended by Ac t of Congress approved July 2, 1864, entitled "An A ct to amend a n Act entitle d `An Act to a id in the construction of a railroad and telegraph line from the Mis- souri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes,' approved July 1, 1862 " (volume 13, United States Statutes at Large, page 356), are hereby legalized, validated, and confirmed with the same force and effect as if the land involved therein had been held at the time of such conveyances by the corporations making the same under absolute fee simple title. List of conveyances. The conveyances, recorded in office of county recorder of San Joaquin County, California ;; in book of official records, which are hereby legalized, validated, and confirmed, are as follows : 1. September 6, 1928 ; Mary A. Larson ; volume 247, page 211. 2 . September 6, 1928 ; Pacific Fruit Exchange, a corporation ; volume 247, page 213. 3 . September 6, 1928 ; San Joaquin County Table Grape Growers' Asso ciat ion, a c orpo rati on ; volum e 247, page 21 4. 4. October 3, 1928 ; San Joaquin County Almond Growers' Asso- ciation, a corporation ; volume 247, page 260. 5 . October 3, 1928 ; National Fruit Products Company, a corpora- tion ; volume 247, page 261. 6 . October 3, 1928 ; Beckman, Welch and Thompson Company, a corporation ; volume 248, page 480. 7 . September 6, 1928 ; C. C. Bidwell ; volume 249, page 371. 8 . September 6, 1928 ; Bert Rinfret ; volume 249, page 373. 9. August 28, 1928 ; Joseph P. Gilbeau, also known as J. P. Gil- beau ; volume 249, page 374. 10. September 6, 1928 ; Annie T. Kels ; volume 249, page 376. 11. August 28, 1928 ; Theodore H. Beckman ; volume 249, page 377. 12 . September 6, 1928 ; J. Henry Pope ; volume 249, page 379. 13 . September 6, 1928 ; Frank H. Buck Company, a corporation ; volume 249, page 380. 14. September 6,1928 ; Silas W. Hopkins ; volume 250, page 302. 15 . September 6, 1928 ; Emma Corbin ; volume 250, page 303. 16 . September 6, 1928 ; Vineyard Farming Company, a corpora- tion ; volume 250, page 304. 1 7 . Sep tem ber 6, 19 28 ; county of San Joaquin, a political s ub- division of the State of California ; volume 250, page 306.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1480

 SEVENTIETH CONGRESS. SEss. II. C$. 426 . 1929 . 1429 18. October 3, 1928 ; The Lodi Canning Company, a corporation ; List-Continued. volume 250, page 354. 19 . October 3, 1928 ; John C. Bewley ; volume 250, page 356 . 20. September 6, 1928 ; Lawrence Holding Company, a corpora- tion ; volume 255, page 216 . 21. September 6, 1928 ; Theodore H. Beckman ; volume 25 5, page 218 . 22. September 6, 1928 ; Pacific Gas and Electric Company, a cor- poration ; volume 256, page 173 . 23. September 6, 1928 ; Union Ice Company, a corporation ; volume 256, page 174 . 24. September 6, 1928 ; Adolphus Eddlemon ; volume 25 6, page 175 . 25. September 6, 1928 ; Nellie R. Henderson and Georgia H. Gar- ner ; volume 256, page 177 . 26. September 6, 1928 ; Sarah J. Graham ; volume 256, page 178. 27. September 6, 1928 ; C. R. Van Bushkirk ; volume 256, page 179 . 28. September 6, 1928 ; George Le Feber ; volume 25 6, page 181. 29. September 6, 1928 ; City of Lodi, a municipal corporation of the State of California ; volume 256, page 182 . 30. September 6, 1928 ; George Kaiser and Mattie M. Stein ; vol- ume 25 6, page 184. 31. September 12, 1928 ; California Trust Company, a corporation ; volume 256, page 192 . 32. October 3, 1928 ; Henry C. Beckman, also known as H. C. Beckman ; volume 256, page 248. 33. October 6, 1928 ; Lee Jones ; volume 256, page 262. 34. September 6, 1928 ; George W. Ashley ; volume 257, page 241. 35. September 6, 1928 ; John N. Ballantyne and John C. Bewley ; volume 257, page 243 . 36. September 6, 1 9 2 8 ; Lodi Fruit Gro wers Associat ion, a corpo- ration ; volume 257, page 244 . 37. August 28, 1928 ; A. V. Friedberger, Leo Friedberger, Maurice Friedb erger, Ray F riedb erger, and W illiam Frie dberge r ; volume 25 7, page 246. 38. September 6, 1928 ; Security Building and Loan Association, a corporation ; volume 257, page 247. 39. September 6, 1928 ; Herschel T. Mason ; volume 257, page 249. 40. October 3, 1928 ; Earl Fruit Company, a corporation ; volume 25 7, page 320. 41. October 3, 1928 ; The Citizens' National Bank of Lodi, a corporation ; volume 262, page 16. 42. October 6, 1928 ; Lodi Storage and Milling Company, a cor- poration ; volume 262, page 32. Pr ovid ed, That such l egaliz ation, validat ion, a nd conf irmatio n shal l Track s' width not not in any instance diminish said right of way to a width less than di min ished. fifty feet on either side of the center of the main track or tracks of said Central Pacific Railway Company as now established and maintained : And provided further, nothing That nothing herein contained Adver se possession, cnotconfirmedb on- is intended or shall be construed to legalize, validate, or confirm veyance from rai lway company, not legalized any rights, titles, or interests based upon or arising out of adverse hereby. possession, prescription, or abandonment, and not confirmed by con- veyance heretofore made by Central Pacific Railway Company and its lessee, Southern Pacific Company : And provided further, That sernvederal deposits re- there shall be reserved to the United States all oil, coal, or other minerals in the land, and the right to prospect for, mine, and remove the same under such rules and regulations as the Secretary of the Interior may prescribe. App roved, March 1, 19 29.

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 1430 SEVENTIETH CONGRESS. SEss. II. CHs . 427-430. 1929 . March 1, 1929. CHAP. 427.-An Act To extend the times- for commencing and completing [11. R. 15201.1 the construction of a bridge across the Ohio River at or near Maysville, Kentucky, [Public, No. 878 .] and Aberdeen, Ohio. Be it enacted by the Senate and House of Representatives of the Ohio River. United States o f America in Congress assembled, That the time for bridging, extended ille,, commencing and completing the construction of a bridge across the Ky., and Aberdeen, Ohio River at or near Maysville, Kentucky, and Aberdeen, Ohio, CAnte, p. 304. authorized to be built by the Maysville Bridge Company, its suc- cessors and assigns, by the Act of Congress approved March 12, 1928, are hereby extended one and three years, respectively, from March 12, 1929. Amen dment. SEC. 2 . The right to alter, amend, or repeal this Act is hereby express ly res erved. Approved, March 1, 1929. March 1, 1929. [H. R. 15382.1 CHAP. 4 2 8 .-A n Act T o legalize a tre stle, log dump, and boom in Hend er- [Public, No. 879 .] son Inlet near Chapman Bay, about seven miles northeast of Olympia, Wash- ingt on. Be it enacted by the Senate and House of Representatives of the Henderson Inlet, United Wash. States of America in Congress assembled, That the trestle, . Trestle, etc., in, by log dump, and boom built by the Weyerhaeuser Timber Company in Weyerhaeuser C o m - pa ny, le galized. Henderson Inlet, State of Washington, on the westerly side near the Locatio n, etc. mouth of Chapman Bay and the mouth of Woodards Bay, which is about seven miles northeast of the city of Olympia, in the State of Washington, be, and the same are hereby, legalized to the same extent and with like effect as to all existing or future laws and regulations of the United States as if the permit required by the existing laws of the United States in such cases made and provided had been regularly obtained prior to the erection of said trestle, log Precise. dump, and boom : Provided, That any changes in said. trestle, log Necessary changes to be made. dump, and boom which the Secretary of War may deem necessary and order in the interest of navigation shall be promptly made by the owner thereof. Amen dment. SEC. 2. That the right to alter, amend, or repeal this Act is hereby expres sly re served. Approved, March 1, 1929. March 1	. [H. R.15577.] CHAP. 429.-An Act to authorize the Secretary of the Navy to dispose of [Public, No. 880 .] material to the sea scout department of the Boy Scouts of America. Navy. Be it enacted by the Senate and House of Representatives of the Boy Scouts of Amer- United States o f America in Congress assembled, That the Secretary 1 Disposal of obsolete of the Navy is hereby authorized, in his discretion, to dispose of material authorized to. without charge, except for transportation and delivery, to the sea scouts department of the Boy Scouts of America, such obsolete material as may not be needed for the Navy, and such other material as may be spared at prices representing its fair value to the Navy. Approved, March 1, 1929. March 1, 1929. [H. R. 15721.] CHAP. 430.-An Act To authorize the Secretary of the Interior to exchange [Public, No. 881 .] certain lands within the State of Mont ana, a nd for ot her pu rpo ses. Be it enacted by the Senate and House of Representatives of the Public lands. United States of America in Congress assembled, That the Secretary Montana. Acceptance of lands of the Interior be, and he is hereby, authorized, in his discretion, to u unreserved 1 nds e, for accept on behalf of the United States title to any lands now owned and held by the State of Montana within the exterior boundaries of

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