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Milwaukee and Saint Paul Railway Company v. Kellogg/Opinion of the Court

This was an action to recover compensation for the destruction by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. From the bill of exceptions, it appears that the 'plaintiff alleged the fire was negligently communicated from the defendants' steamboat 'Jennie Brown' to an elevator built of pine lumber, and one hundred and twenty feet high, owned by the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's saw-mill and lumber piles, while an unusually strong wind was blowing from the elevator towards the mill and lumber. On the trial, it was admitted that the defendants owned t e steamboat and elevator; that the mill was five hundred and thirty-eight feet from the elevator, and that the nearest of plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties plaintiff and defendant respecting the ownership of the land where the mill stood and the lumber was piled, both claiming under a common source of title. The plaintiff had built the mill, and he was in the occupation of it, believing he had a right to be there.'

Such having been the admissions, the court refused to allow the parties to try the title to the land upon which the mill and lumber had been placed, proof of title being, in the opinion of the court, immaterial. To this ruling the defendants excepted, and it is the first error they have assigned. We are unable to perceive any reason why the proof offered was not, as the Circuit Court held it to be, perfectly immaterial to the issue between the parties. By the law of the State of Iowa, 'where an occupant of land has color of title thereto, and in good faith has made any valuable improvements thereon, and is afterwards, in a proper action, found not to be the rightful owner thereof,' he is entitled to payment or credit for the value of his improvements. Code of Iowa, sects. 1976-1981. The effect of this statute is to make such an occupant practically the owner of his improvements, even though he be not the owner of the land on which they have been made. If, therefore, the title to the land had been shown to be in the defendants, the proof would not have affected the right of the plaintiff to recover compensation for wilful or negligent destruction of the buildings and lumber. Nor could it have changed the degree of prudence and care which the defendants were bound to exercise in order to guard against injury to that property. The plaintiff is not to be regarded as a mere trespasser, wantonly thrusting himself or his property in the way of danger,-a trespasser to whom the defendants owed a less degre of caution than would have been due if he had been the undisputed owner of the fee-simple of the land on which the mill stood. We cannot admit that the defendants owed no duty to the plaintiff, even if he was occupying their land without their consent. An attempt was made during the argument to maintain that they had been found by the jury guilty only of an act of omission, and it was insisted that such an act would not give a right of action to the plaintiff if he was wrongfully in possession of their land. Neither the fact asserted nor the inference drawn from it can be conceded. The verdict of the jury was, 1st, That the elevator was burned from the steamer 'Jennie Brown;' 2d, that such burning was caused by not using ordinary care and prudence in landing at the elevator, under circumstances existing at that particular time; and, 3d, that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator. The only reasonable construction of the verdict is, that the fault of the defendants-in other words, their want of ordinary care and prudence-consisted in landing the steamer at the elevator in the circumstances then existing, when a gale of wind was blowing towards it, when the elevator was so combustible and so tall. If this is not the meaning of the verdict, no act of negligence, of want of care, or of fault has been found. And this is one of the faults charged in the declaration. It averred, that, while the wind was blowing a gale from the steamboat towards and in the direction of the elevator, the defendants carelessly and negligently allowed, permitted, and counselled (or, as stated in another count, 'directed') the steamboat to approach and lie alongside of or in close proximity to the said elevator. This is something more than nonfeasance: it is positive action, the result, consequence, or outworking, as the jury have found it, of the want of such care as should have been exercised.

It has been further argued in support of his assignment of error that the proffered proof of title should have been admitted, because it tended to show contributory negligence on the part of the plaintiff. But we cannot understand how it could have had any such tendency. Whether the mill stood on the defendants' land, or on other land equally distant from the steamer and elevator, and in the same direction, its exposure to the fire was exactly the same.

A second exception taken in the court below, and here insisted upon, is that the court refused to permit the defendants to prove by witnesses who were experts, experienced in the business of fire insurance, and accustomed by their profession to estimating and calculating the hazard and exposures to fire from one building to another, and to fixing rates of insurance, that, owing to the distance between the elevator and the mill, and the distance between the elevator and the lumber piles, the elevator would not be considered as an exposure to the mill or lumber, and would not be considered in fixing a rate thereon, or in measuring the hazard of mill or lumber.

This exception is quite unsustainable. The subject of proposed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters, experts are not permitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge. Thus, it has been held that an expert cannot be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off, Keller v. Railroad Company, 2 Abb. (N. Y.) App. Dec. 480; or whether it was prudent to blow a whistle at a particular time, Hill v. Railroad Company, 55 Me. 438. Nor can a person conversant with real estate be asked respecting the peculiar liability of unoccupied buildings to fire. Muloy v. Insurance Company, 2 Gray (Mass.), 541. In Durell v. Bederly, Chief Justice Gibbs said: 'The opinion of the underwriters on the materiality of facts, and the effect they would have had upon the premium, is not admissible in evidence.' Powell's Evid. (4th ed.) 103. And in Campbell v. Richards, 5 Barn. & Ad. 846, Lord Denman said: 'Witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties had acted in one way rather than in another.' See also Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1905, 1913, 1914, and Norman v. Higgins, 107 Mass. 494, in which it was ruled, that, in an action for kindling a fire on the defendant's land so negligently that it spread to the plaintiff's land and burned his timber, the opinion of a person experienced in clearing land by fire, that there was no probability that a fire set under the circumstances described by the witnesses would have spread to the plaintiff's land, was inadmissible.

The next exception is to the refusal of the court to instruct the jury as requested, that 'if they believed the sparks from the 'Jennie Brown' set fire to the elevator through the negligence of the defendants, and the distance of the elevator from the nearest lumber pile was three hundred and eighty-eight feet, and from the mill five hundred and twenty-eight feet, then the proximate cause of the burning of the mill and lumber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for a recovery.' This proposition the court declined to affirm, and in lieu thereof submitted to the jury to find whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which, under the circumstances, would naturally follow from the burning of the elevator; and whether it was the result of the continued effect of the sparks from the stea boat, without the aid of other causes not reasonably to be expected. All this is alleged to have been erroneous. The assignment presents the oft-embarrassing question, what is and what is not the proximate cause of an injury. The point propounded to the court assumed that it was a question of law in this case; and in its support the two cases of Ryan v. The New York Central Railroad Co., 35 N. Y. 210, and Kerr v. Pennsylvania Railroad Co., 62 Penn. St. 353, are relied upon. Those cases have been the subject of much criticism since they were decided; and it may, perhaps, be doubted whether they have always been quite understood. If they were intended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is a conclusion of law that the owner of the second has no recourse to the negligent wrong-doer, they have not been accepted as authority for such a doctrine, even in the States where the decisions were made. Webb v. The Rome, Watertown, & Ogdensburg Railroad Co., 49 N. Y. 420, and Pennsylvania Railroad Co. v. Hope, 80 Penn. St. 373. And certainly they are in conflict with numerous other decided cases. Kellogg v. The Chicago & North-western Railroad Co., 26 Wis. 224; Perley v. The Eastern Railroad Co., 98 Mass, 414; Higgins v. Dewey, 107 id. 494; Tent v. The Toledo, Peoria, & Warsaw Railroad Co., 49 Ill. 349.

The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw-mill and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it is obvious that the immediate and inseparable consequences of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defendants might well have anticipated or regarded the probable consequences of their negligence as much more far-reaching than would have been natural or probable in other circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered in accordance with common understanding. In a succession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an adjoining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for rules of social conduct. In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.

If we are not mistaken in these opinions, the Circuit Court was correct in refusing to affirm the defendants' proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued influence or effect of the sparks from the boat, without the aid or concurrence of other causes not reasonably to have been expected. The jury found, in substance, that the burning of the mill and lumber was caused by the negligent burning of the elevator, and that it was the unavoidable consequence of that burning. This, in effect, was finding that there was no intervening and independent cause between the negligent conduct of the defendants and the injury to the plaintiff. The judgment must, therefore, be affirmed.

Judgment affirmed.


text: Talk:Milwaukee and Saint Paul Railway Company v. Kellogg/Opinion of the Court

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text:
Stark v. Starr

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

This was a suit in equity, to restrain the defendant from enforcing a judgment recovered by him against the tenants of the complainant, for the possession of certain premises situated in the city of Portland, Oregon, and to compel the defendant to execute a release of his interest to the complainant.

It appears from the record, that on the 22d of March, 1848, and for some time previous, one Francis W. Pettygrove held a claim to six hundred and forty acres of land in Oregon, which was taken up by him under the law of the provisional government, established by the settlers there in 1845, before the laws of the United States were extended over the country. On the land covered by this claim a large part of the city of Portland is built. On the day mentioned, Pettygrove conveyed his claim, with the exception of certain designated lots, to one Daniel H. Lownsdale, of Portland. By the conveyance, the grantor, for the consideration of $5,000, and divers other good causes and considerations, bargained, remised, and released to the grantee named all his 'right, title, interest, claim, and demand at law and in equity, present and in expectancy,' in and to the land claim the boundaries of which were given.

On the 30th of March, 1849, Lownsdale, for the consideration of $6,000, bargained, quitclaimed, and released his interest in the claim, with the exception of certain lots, to Stephen Coffin, designating the interest conveyed, and describing the claim in similar language. With the execution of this conveyance, Low sdale and Coffin entered into a contract by which Coffin agreed to make every exertion to obtain the title of the United States to the claim, divide the proceeds of any sales of lots or other property or privileges on the land claimed; to bear half the expenses of any improvements they might jointly conclude to make; to further the interest of the town site; to divide the profits and the losses; and that Coffin should execute to Lownsdale a good title to one-half of the claim upon the termination of the contract, which was dissolvable by mutual consent.

On the 13th of December, 1849, Lownsdale and Coffin, for the consideration of $26,666, payable by instalments, conveyed one undivided third part of the claim to William W. Chapman, of Portland. From that time the three parties owned the claim jointly, designating themselves as partners.

During this time, the defendant Stark asserted ownership to one undivided half of the claim, by purchase from one Love-joy, who, he contended, had held the claim in connection with Pettygrove.

In January, 1850, Lownsdale went to San Francisco, leaving with Chapman a power of attorney to transact and superintend his business in the Territory during his absence; to do any thing pertaining to his interests in Oregon which he, in his judgment, might think advisable, 'particularly in signing deeds to Portland lots.'

At San Francisco Lownsdale met Stark, and they made a settlement of their respective claims, by which the claim was divided by a line running through what is now called Stark Street; Stark taking the part north of the line, and Lownsdale the part south of it. This settlement was embodied in a deed of release and quitclaim, executed by them on the 1st of March, 1850. By the deed, Stark ratified and confirmed the conveyances of certain designated lots north of that line, made by Lownsdale or his attorney, previous to the first day of January, 1850, and also all grants and conveyances made subsequently to the first day of March, with a proviso that Stark should receive the proceeds of the subsequent conveyances.

During the absence of Lownsdale, Chapman and Coffin agreed to partition off three blocks among the three owners, assigning one to each owner in severalty, at an agreed valuation. In this way, block 78 was assigned to Lownsdale, block 79 to Coffin, and block 81 to Chapman. This partition, making assignment, was made by the following instrument:--

'This indenture, made and entered into this twentieth day of March, A.D. 1850, between Stephen Coffin, D. H. Lownsdale, and W. W. Chapman, proprietors of Portland, of the first part, and W. W. Chapman, of Portland, Washington County, Oregon, of the second part, witnesseth, that the party of the first part, for and in consideration of the sum of $2,000, the receipt whereof is hereby acknowledged, doth release, confirm, and quitclaim unto the said Chapman the following-described property in the said town of Portland, to wit, lots numbers one (1), two (2), three (3), four (4), in fractional block number eighty-one (81), being the warehouse fraction, and situate east of Water Street, to the water north of Oak Street and south of Pine Street, according to the plat of said town.

'In testimony whereof, the parties have hereunto set their hands and seals day and year aforesaid.

(Signed) 'S.C.OFFIN. [SEAL.]

'D. H. LOWNSDALE, [SEAL.]

'By his Attorney-in-fact, W. W. Chapman.

'W. W. CHAPMAN. [SEAL.]'

Chapman and Coffin first heard, early in April, 1850, of the settlement between Stark and Lownsdale. They at once refused to ratify it, unless the agreement or deed of settlement was modified so as to cover the disposition of property made by them during Lownsdale's absence up to the time they were informed of the settlement.

Stark had left Portland in September of the previous year. Before he left, he executed the following power of attorney, and delivered it to John H. Couch:--'Know all men by these presents, that I, Benjamin Stark, merchant, resident of Portland, in the T rritory of Oregon, do hereby make, constitute, and appoint John H. Couch, of Portland aforesaid (merchant, and my mercantile partner), my true and lawful attorney, for me, and in my stead, to do any and all acts, during my temporary absence from this Territory, which I might myself lawfully do were I personally present, hereby ratifying and confirming all and every act which my said attorney shall so perform, and, by these presents, recalling and annulling all authority conflicting with this letter of attorney, which I have previously given to any person or persons whatsoever.

'Witness my hand and seal, at Portland, this twenty-sixth day of September, A.D. 1849.

'BENJ. STARK. [SEAL.]

'Witness: WM. SETON OGDEN.'

With this power, Stark sent the following letter to his attorney:--

'JOHN H. COUCH, Esq.:

'SIR,-With this you have from me a power of attorney of the fullest character, under which, during my absence from the Territory, you can look out for all my interests, particularly with reference to my interest in the Portland town claim.

'As regards the claim, I wish you to notify Mr. Coffin, as soon as he returns, of the true position of things, and, if possible, have the difficulty concerning my undivided half settled. I have spoken to James W. Nesmith, Esq., and to Mr. Pritchard, Secretary of State, and they will both hold themselves in readiness to act as my counsel.

'Should you find, after the return of Mr. Coffin, that the matter can be brought no nearer to a settlement upon just and equitable principles, I wish you to submit to them (Nesmith and Pritchard) all my papers, a part of which you have herewith, and others which you can have from A. L. Lovejoy, Esq., upon application to him, and direct them to pursue such measures as they deem most judicious.

'Mr. Lovejoy can give some valuable hints to my counsel, as he was formerly my agent. It will be necessary for you to advise the public of your appointment as my attorney during my absence. The proper kind of notice to publish, Nesmith or Pritchard can prepare.

'Wishing you may have but little trouble with my affairs, yet trusting that you will battle to the utmost for my rights if necessary, I am yours, affectionately,

'BENJ. STARK.

'PORTLAND, 26th September, 1849.'

Assuming to act under the authority of this power and letter, Couch undertook to obtain from Chapman and Coffin a ratification of the agreement of settlement between Stark and Lownsdale. For that purpose he consented to the modification demanded by them. Accordingly the agreement was ratified by Chapman and Coffin by the following instrument signed by them indorsed upon the agreement:--

'We, Stephen Coffin and W. W. Chapman, partners with Daniel H. Lownsdale, in the town of Portland, hereby ratify and confirm a certain agreement between Benjamin Stark and D. H. Lownsdale, bearing date the first day of March, A.D. 1850, respecting an adjustment of title, hereby placing the disposition of property up to notice of said adjustment upon the same footing with the disposition of property before the first day of January last.

'In testimony whereof we have hereunto set our hands and seals this the thirteenth day of April, A.D. 1850.

'S.C.OFFIN. [L. S.]

'W. W. CHAPMAN. [L. S.]'

Under this instrument the following ratification by the attorney of Stark was executed:--

'PORTLAND, O. T., April 15, 1850.

'I ratify the above agreement as far as my interest is concerned in said property.

'JOHN H. COUCH,

'For BENJ. STARK.'

All other material facts are sufficiently stated in the opinion of the court.

The complainant obtained a decree for the release prayed, and the defendant appealed to this court.

Mr. Jeremiah S. Black for the appellant.

Mr. George H. Williams for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Stark v. Starr


text: Talk:Stark v. Starr

title: Talk:Stark v. Starr


text:
Stark v. Starr/Opinion of the Court

On the 7th of December, 1860, the Commissioner of the General Land-Office at Washington issued a patent of the United States to the corporate author ties of the city of Portland, Oregon, for lands within the limits of the city to the extent of three hundred and seven acres and forty-nine hundredths of an acre, in trust for the several use and benefit of the occupants thereof. This patent was issued upon an entry made by the city authorities, on the belief that the lands were brought under the operation of the Town-Site Act of May 23, 1844, by the Organic Act of 1848, establishing the territorial government of Oregon, and were not subject to disposition under the Donation Act of 1850. The patent embraced the premises in controversy in this suit, but reserved from its operation any valid claims that might exist in virtue of the several donations to Benjamin Stark and others.

On the following day, Dec. 8, 1860, the Commissioner of the General Land-Office also issued a patent to Stark for land situated within the limits of Portland, claimed by him under the Donation Act, subject, however, to such rights as might exist in virtue of the entry by the city. This patent also covered the premises in controversy.

For several years before these patents were issued, the complainant, with his brother, had been in the occupation, use, and enjoyment of the premises, and had erected upon them expensive and permanent improvements. During this time they asserted, that, by virtue of a certain agreement made by Stark with parties through whom they had obtained their interest, they had acquired a right to have the legal title transferred to them, whenever that was obtained from the United States. After Stark had secured his patent, they applied to him for a release; but he refused to give them one, and threatened them with legal proceedings to recover possession of the premises. They thereupon brought a suit in equity in the State court to compel a release of his interest. In their bill, which was filed in January, 1864, they set forth their long and peaceable possession; that they had made large and valuable improvements; that the defendant asserted title to the premises under his patent, and threatened suits for their recovery; and stated the conveyances under which they claimed, and the agreement upon which they founded their right to a release of his interest; and they prayed a decree compelling such release.

Subsequently, the bill was amended by the addition of clauses setting forth the patent of the United States issued to the corporate authorities of the city, in trust for the several use and benefit of the occupants, and alleging that the complainants, as beneficiaries, claimed an interest in the premises under that instrument.

The State court appeared to consider these two grounds for equitable relief-one founded upon the agreement of Stark with the parties through whom the complainants claimed, and the other founded upon the city patent-as inconsistent with each other, and compelled the complainants to elect upon which they would proceed. They objected to the order, but, under its compulsion, elected to proceed upon the city patent. The bill was accordingly amended so as to present their claim for relief solely as beneficiaries under that instrument. The point in contention, then, was, which of the two patents carried the title to the premises. If the patent to the city authorities was valid, Stark took nothing by his patent. If, however, his patent was valid, the city had acquired no interest in the premises.

The State Circuit Court and the State Supreme Court held that the patent to Stark was void as against the complainants, and enjoined him from taking legal proceedings to eject them from the premises. The case having been brought to this court, the decree of the Supreme Court was reversed, and the cause remanded with directions to dismiss the suit. Upon our mandate the suit was accordingly dismissed in September, 1868. In deciding the case, we held that the act of 1848, organizing the Territory of Oregon, did not extend over the country the Town-Site Act of 1844, and that the patent to the city authorities, being made upon an entry under that act, passed no title to the land covered by the donation claim of Stark. His right to a patent had been previously perfected, and his claim had been surveyed before the passage of the act of 1854, by which the Town-Site Act was first extended with qualifications to the Territory. Stark v. Starrs, 6 Wall. 402.

After the suit was thus dismissed, Stark commenced actions of ejectment against the tenants of the complainant for possession of the premises. These were consolidated into one action, in which Stark recovered judgment, with damages, for use and occupation. The complainant thereupon commenced the present suit in equity, alleging that he has a good and equitable title to the premises as against Stark, and praying an injunction against any legal proceedings for their possession, and a decree that he be required to release such title as he may have acquired by his donation claim and patent. In the bill the complainant sets up substantially the same matter, though with greater fullness and detail, which was originally averred in the first suit brought by himself and his brother, and omitted in the amended bill in that suit upon the election required by the court; and also claims that the defendant is estopped by his acts from asserting title to the premises.

The first question presented for our determination is, whether the complainant is concluded upon that matter in the present suit, by reason of the proceedings and decree in the first suit. While that suit was pending, the complainant acquired the interest of his brother.

It is undoubtedly a settled principle that a party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible. But this principle does not require distinct causes of action,-that is to say, distinct matters,-each of which would authorize by itself independent relief, to be presented in a single suit, though they exist at the same time and might be considered together. The agreement between Stark and the parties through whom the complainants claimed constituted a cause for relief, distinct from and independent of that arising from the interest asserted by them as beneficiaries under the patent to the city authorities. There was, therefore, no rule of law which compelled the presentation of the two causes of relief in the same suit. They required different allegations in the bill, and different evidence on the hearing. The court might have considered one cause insufficient, and sustained the bill on the other. It might have ruled against the agreement, and, sustaining the city patent, enjoined the defendant from asserting any interest in the premises; or it might have denied the validity of the patent, and decreed a release upon the agreement. The provisions of the decree would have conformed to the cause sustained; its directions in the one case would have differed from its directions in the other. It was competent, therefore, and within the discretion of the court, to compel the presentation of the two causes, calling as they did for different relief in separate suits. A decision upon one could not possibly be a bar to proceedings upon the other, from their intrinsically distinct nature. Having required the complainants to proceed in that suit only upon one cause or ground for relief, the court left the other cause open for any future suit which they might choose to bring.

To appreciate and give proper effect to the agreement made by Stark with parties through whom the complainant derives his interest, and upon which he founds his claim to equitable relief in this suit, reference must be had to the condition on which land in Oregon was held at that time. The entire land in the Territory belonged to the United States. No provision had been made for the sale or other disposition of any portions of it to private parties. The pre-emption law had not been extended over the country, nor until the passage of the act of September 27, 1850, usually designated as the Donation Act, was there any known mode for obtaining the legal title. And yet the inhabitants dealt in the land as though possessed of the fee. They not only occupied, cultivated, and improved such portions as their necessities required, but they bought and sold it as land is bought and sold where the title has passed out of the government. This dealing in the land without having the title arose necessarily from the settlement of the country before the laws of the United States were extended over it. Indeed, a large number of emigrants from the United States had settled in the country whilst its sovereignty was in dispute with Great Britain. It was not until the 15th of June, 1846, that its sovereignty was determined by the treaty; and previous to this time, in 1845, the emigrants had formed for themselves a provisional government, under which laws were passed, protection to persons and property secured, and justice administered, with all the order and regularity of long-established communities. The inhabitants engaged in the pursuits, industries, and enterprises which might be expected from an active, intelligent, and moral people. For the preservation of order and security, they were obliged to make some regulations for the possession and occupation of land among themselves. They accordingly established a land system, providing in what manner and to what extent land should be taken up and possessed. Under it each person over a specified age, upon complying with certain conditions, was allowed to hold six hundred and forty acres. He was required to designate the extent of his claim, either by natural or artificial boundaries; make, within prescribed periods, improvements thereon; and have the claim recorded in the office of the territorial recorder, in a book kept for that purpose. All claims thus taken up and recorded were respected by the people; and the claimants were protected, not only by the law of the provisional government, but by the general public sentiment of the country, in their possession and enjoyment. They were at liberty to use the claims for any legitimate purpose as absolute owners, either for cultivation and residences, or as sites for villages or towns. They did not deny, in any of their dealings, the proprietorship of the United States; but they acted upon a confident expectation that their possessions and improvements would be respected by the government, and that ultimately they should acquire the title. This expectation was founded upon the uniform action of the government in its dealings with the public domain, occupied by settlers in advance of legislation for its sale. It was, therefore, understood by the people that, whenever the legal title was thus obtained, it should inure to the benefit of the grantees of the claimant who secured the patent of the United States. This understanding constituted, in reality, the unwritten conventional law of the State, which affected all transactions in land until the passage of the Donation Act. That act shows that Congress, in its passage, was cognizant of this fact; for it impliedly recognizes the validity of previous contracts for the transfer of land made by a claimant, to whom, upon proof of his settlement and its continuation for four years, a patent should be afterwards issued. This matter was considered by this court in Lamb v. Davenport, reported in the 18th of Wallace. It was there objected that a contract for the sale of lands thus held, made before the passage of the Donation Act, was void, because the proviso to the fourth section declares that all future contracts of sale by any person entitled to the benefit of the act, before he received a patent, should be void; but the court said, speaking through Mr. Justice Miller: 'The act was on its face intended to cover settlements already made, and the careful limitation of this proviso to future contracts of sale that is, sales made after the passage of the act-raises a strong implication of the validity of such contracts made before the passage of the statute. It was well known that many actual settlers held under such contracts, and while Congress intended to protect the donee from future improvident sales, it left contracts already made undisturbed.' And the court held that the purchaser by such a contract acquired, as against his vendor, an equitable right to the land, which would be enforced when the legal title was obtained.

In the present case, it appears that prior to March 22, 1848, one Francis W. Pettygrove held a claim to six hundred and forty acres, taken up under the law of the provisional government, upon which a great part of the present city of Portland is built. On that day he conveyed his claim, with the exception of certain lots, and all his interest therein, 'present and in expectancy,' to Daniel H. Lownsdale. In March, 1849, Lownsdale conveyed his interest in the claim, with a similar exception of certain lots, to Stephen Coffin, taking back a contract, to the effect, substantially, that Coffin would hold the property equally for his benefit, and execute to him a good title to one-half of the claim, with the improvements, upon the termination of the contract. In December following, Lownsdale and Coffin conveyed one undivided third interest in the claim to Chapman. The three were, in fact, equal owners of the claim, and styled themselves partners in the property, although the conveyances showed that the documentary title to it was in the names of Chapman and Coffin alone. These parties, while retaining the general possession and ownership of the claim. laid off upon it numerous blocks and lots, and sold a large number of the lots to different parties, publicly avowing at the time their intention to obtain, if possible, a title to the land from the United States, and thus to perfect the title of the purchasers.

In January, 1850, Lownsdale went to San Francisco, leaving a power of attorney with Chapman, to do any thing pertaining to his interest which Chapman might think advisable, particularly in signing deeds to lots in the city of Portland. Whilst in San Francisco, he met the defendant Stark, who claimed onehalf interest in the Portland land claim by purchase from one Lovejoy, who, he asserted, held the claim originally with Pettygrove. A settlement was accordingly made between them. It was agreed that Lownsdale should release, with certain exceptions, all claim to land north of a designated line, now known as Stark Street; and that Stark should release, with certain exceptions, all claim to land south of the line, and confirm certain sales and conveyances made within the tract released to him. This agreement was carried out by a deed of mutual release and quitclaim executed by them on the 1st of March, 1850. The deed confirmed the conveyances of certain lots made by Lownsdale or his attorney previous to Jan. 1, 1850, north of the line, and all subsequent conveyances to March 1, 1850; but with a proviso that Stark should receive the proceeds of the subsequent conveyances. The instrument also provided, that in case any person, with certain exceptions, holding or claiming under Lownsdale, referring to Chapman and Coffin, should refuse to ratify and confirm the deed within six months, Stark might at his option have it cancelled.

Whilst Lownsdale was absent at San Francisco, three blocks were partitioned by Chapman and Coffin among the three owners, one block being taken by each at an agreed valuation. One of them, designated number 78, was assigned to Low sdale, one, designated number 79, was assigned to Coffin, and one, number 81, was assigned to Chapman. This latter block lies north of the dividing line, within the tract falling to Stark, and embraces the premises in controversy. The assignment of this block is contained in a deed purporting to be a conveyance by Chapman, Coffin, and Lownsdale,-the latter by Chapman, his attorney. As a conveyance of any interest to Chapman from Lownsdale, it is waste paper. An attorney cannot convey to himself by a power from his principal. But at that time Coffin, as already stated, held in his name the interest of Lownsdale. The instrument was therefore effectual as a release to Chapman of the entire interest of both. No one but Lownsdale could object to the transaction; and he never complained of it, but, on the contrary, approved of it. In the settlement between the joint owners or partners, Chapman was charged with the estimated value of the block.

When Chapman and Coffin learned of the agreement between Lownsdale and Stark, they refused to ratify it, unless it were modified so as to cover the transfers made by them during Lownsdale's absence, referring particularly to the disposition made of the three blocks. During the previous year, Stark, on leaving Portland, had given a power of attorney to his partner, to do any and all acts during his absence which he could do if present. Accompanying this power was a letter, in which the land claim was mentioned, and a desire expressed that his interest in that claim should be particularly attended to, and the difficulty concerning his undivided half settled. This attorney now undertook to remove the objection urged by Chapman and Coffin, and for that purpose, after some negotiation, he consented to the modification desired. The agreement was accordingly ratified by Chapman and Coffin, modified so as to place the disposition of property made by them previous to the time they received notice of the settlement upon the same footing with the disposition of property before the first of the previous January; and as thus modified the agreement was also ratified by the attorney. Afterwards, during the same year, and in January, 1851, Chapman sold the premises in controversy. A portion of them was purchased from him by the complainant and his brother. The rest of the premises was afterwards purchased by them from intermediate parties. They were all acquired before the patent of the United States was issued to Stark. The different purchasers went at once into possession; and they or their grantees have ever since, either by themselves or tenants, been in the occupation of the property, and have made extensive and valuable improvements. The property is situated in the business part of Portland, and has always been occupied for business purposes.

The ratification made by the attorney of Stark, it is said, applies in terms only to the attorney's interest; but the answer is, that the attorney had no interest at the time, and acted only for Stark. If, as a ratification by Stark, it is insufficient in form, because of the manner in which the attorney has expressed his agency in appending his signature to the instrument, a court of equity will look beyond the form of the execution, and, having ascertained the intention of the attorney in signing the instrument, will, if possible, give it the effect intended. The ratification, such as it was, undoubtedly led to the purchase of the property by the complainant and his brother and others. When Stark subsequently returned to Portland, in June, 1850, he was informed of the action of his attorney, and made no objection to it, although he understood that it was intended as a ratification on his part of the disposition of the block in question by Chapman and Coffin.

But more persuasive evidence of his approval of the modification is furnished by his action with respect to the property. As already stated, the documentary title to the entire claim was in Chapman and Coffin. Without their approval, the settlement between Stark nd Lownsdale would have failed of any result. Upon the ratification by the attorney, Chapman and Coffin abandoned all interest in any other property than block 81 north of the agreed line; and Stark at the same time abandoned his interest in the tract south of that line, and appropriated in severalty all the other property released on the north. In other words, instead of calling for a cancellation of the deed upon the refusal of Chapman and Coffin to ratify it, as he was at liberty to do, he adopted it as approved by them; for, except as thus approved, it was without any efficacy. He held nothing in severalty, except by their consent; and upon his claim to hold the property released in this way he subsequently obtained his patent from the government, and sold to different parties portions of the land. Under these circumstances, he cannot be permitted to go back upon the act of his attorney.

So far, therefore, as the transfer of block 81 to Chapman is concerned, the deed must be held to apply to it as fully as it applies to the conveyances specially designated and confirmed by that instrument. It operated as a confirmation of the transfer, and gave to Chapman an equitable right to call for a release of the legal title, when that was obtained. That right passed to the complainant claiming under him.

During the several years intervening between this transaction and the issue of the patent, Stark frequently conversed with the Starrs and the other purchasers respecting the property, assured them, in repeated instances, that he would convey to them the legal title when he obtained the patent from the government, and advised them to erect buildings and improve the property. Under his eye, and with full notice, and by his encouragement, the Starrs, and others from whom the Starrs purchased, made the improvements. If in the light of these facts, and all the attending circumstances, the defendant could now successfully impugn the ratification made by his attorney, deny the promises made by himself, and deprive the complainant of the property and improvements, it would be a reproach to the administration of justice. Upon every principle of law and morals, he should be for ever enjoined from the commission of such injustice, and be compelled to quiet the title of the complainant by a release of all claim to the premises.

Decree affirmed.

NOTE.-In Stark v. Starr and Same v. Bacon, appeals from the Circuit Court of the United States for the District of Oregon, which were argued at the same time and by the same counsel as was the preceding case, MR. JUSTICE FIELD, in delivering the opinion of the court, remarked: 'These cases involve some of the questions discussed and decided in the above case; and, upon the authority of that decision, the decrees in both are affirmed.'

title: Stark v. Starr/Opinion of the Court


text: Talk:Stark v. Starr/Opinion of the Court


text:
Clark v. Hancock

MOTION to dismiss a writ of error to the Supreme Court of the State of California.

Mr. P. Phillips for the defendant in error, in support of the motion.

Mr. Thomas J. Durant and Mr. C. W. Hornor, contra.

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

title: Clark v. Hancock


text: Talk:Clark v. Hancock

title: Talk:Clark v. Hancock


text:
Clark v. Hancock/Opinion of the Court

The final judgment in this case was rendered Oct. 3, 1876, and the writ of error issued Nov. 16, returnable to the October Term, 1877. The defendants in error, having filed a copy of the record and docketed the cause, now move to dismiss, for want of jurisdiction.

It is not claimed by the plaintiff in error that there is any Federal question disclosed by the record, but it is insisted that a motion to dismiss cannot be entertained until the return-day of the writ. Such was the old practice; but in Ex parte Russell, 13 Wall. 671, and Thomas v. Wooldridge, 23 id. 288, the rule was changed. It seemed to us then that such a change would 'be likely to prevent great delays and expense, and further the ends of justice.' Subsequent experience confirms that opinion. In the present crowded state of our docket it becomes us to be specially careful that our jurisdiction is not invoked for delay merely; and, when the record is presented in such a form that we can, without too great inconvenience, inform ourselves of the questions to be decided, we shall be inclined to receive applications of this kind. In the present case, we have a printed record, and it is evident we have no jurisdiction.

Motion granted.

title: Clark v. Hancock/Opinion of the Court


text: Talk:Clark v. Hancock/Opinion of the Court


text:
The Margaret

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. William P. Lynde for the appellant.

Mr. Alfred L. Cary, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: The Margaret


text: Talk:The Margaret

title: Talk:The Margaret


text:
The Margaret/Opinion of the Court

This is a cause in admiralty. The libel alleges that the tug 'Margaret,' in towing the brig 'Mechanic' into the port of Racine, Wis., conducted the process so carelessly and unskilfully that the brig and cargo were sunk. This proceeding was instituted to recover damages for the loss sustained by the libellants. A decree was rendered in their favor, from which an appeal was taken to this court.

The entrance into the harbor is at the mouth of Root River. It has been improved by two piers. One of them is on the north, and the other on the south side. They are parallel to each other, and extend into the lake in a direction nearly due east, the north one running out about three hundred and thirty feet farther than the south one. The distance from the inside of the outer end of the south pier directly across to the inside of the north pier is two hundred and thirty-eight feet. At the entrance of the harbor, and for some distance farther west than the east end of the south pier, the channel ran close along the south side of the north pier. It was about seventy-five feet wide. South of the channel, between it and the south pier, and opposite to the end of that pier, there was a bar, with shoal water upon it. Just inside of the north pier the depth of water in the channel was fifteen and a half feet. From there to a point a long distance within the piers it varied; but the depth was nowhere less than thirteen and a half feet. The depth upon the bar before mentioned was nine and a half feet. The brig at the time of the disaster drew ten feet.

The wind at the port was north-easterly, and was a light breeze. At the mouth of the harbor ground-swells came in from the lake. They were met by the undertow in the river. This increased the commotion of the waters. The highest swells broke over the end of the south pier, which was five feet above the ordinary water-level. This height of the swells was due to the shallowness of the water there. The harbor-master says, in his testimony: 'As near as I could judge, the swells came up on the south pier. On the north pier they were not near so high. The south pier is where the shoal water is.' Speaking of the channel hard by the north pier, he says: 'I should think there was about half the swell there that there was on the south side of the harbor.' Another witness says: 'I should say there was not over twenty inches rise and fall on the mean level.'

Such was the state of things to be encountered by the two vessels in entering the harbor, when the casualty set forth in the libel occurred.

On the 27th of November, 1869, the brig left the port of Suamico with a cargo of lumber for the port of Racine. She arrived off the latter port about noon on the 30th of that month, and at once signalled for the tug to come out and tow her in. The tug obeyed the signal. When she reached the brig, the latter was lying about a mile and a half north-east from the mouth of the harbor. The tug approached the brig on her starboard side. The captain of the brig inquired of the captain of the tug whether there was 'much swell on.' The latter answered, 'No.' The captain of the brig said his vessel drew ten feet of water. At the same time the linesman on the tug called for a line, and it was handed to him over the starboard bow. With ref rence to the wind where the vessels then were, the captain of the brig says: 'There was a kind of a dead swell; there was no sea; there was very little wind.' On these points there is no controversy between the parties.

The line was attached to the starboard side of the brig. Subsequently, another line was fastened to the port side, and both lines were so shortened as to bring the tug and the tow into close proximity. There is an irreconcilable conflict in the testimony as to the time when the second line was applied, and when the lines were shortened. The witnesses for the respondents insist that both occurred before the towing began. Those for the libellants maintain that the second line was applied later, and that the tug stopped, and the lines were shortened when the tug was between two and three hundred feet from the north pier. It is not easy to reconcile these discrepancies; and we do not deem it very material to do so, by reason of facts occurring subsequently, and which are in nearer relation to the disaster.

The tug laid her course in a south-westerly direction towards the end of the north pier. Upon reaching it she made a short turn to the starboard around it and entered the harbor. The brig followed. She had entirely lost her steerage-way, and ceased to obey her helm. The tug had lost all control over her. She sagged off towards the south pier, and grounded on a bar, which she struck repeatedly with the rise and fall of the water. The tug stopped and then resumed her traction. The port line broke. Presently the starboard line broke also. The brig was thrown by the force of the swell upon the end of the pier. A hole was stove in her quarter. She was otherwise seriously damaged, and sunk. It is not denied that, in the crisis, the tug did all that could be done to relieve her from the perils of her situation. The effort was unavailing.

No serious attempt was made here to inclupate the brig. The tug was the dominant mind and will in the adventure. It was the duty of the brig to follow her guidance, to keep as far as possible in her wake, and to conform to her directions. The exercise of reasonable skill and care within this sphere was incumbent on the tow. It does not appear that there was a failure in any of these particulars.

If the port line was too weak, the tug should have called attention to it. Silence was a fault. The learned circuit judge found as a fact that the breaking of the line was not the cause, but the consequence, of the grounding; and in this we concur with him.

The tug was not a common carrier, and the law of that relation has no application here. She was not an insurer. The highest possible degree of skill and care were not required of her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in every thing relating to the work until it was accomplished. The want of either in such cases is a gross fault, and the offender is liable to the extent of the full measure of the consequences. Brown v. Clegg, 63 Penn. St. 41; The Quickstep, 9 Wall. 665; Wooden v. Austin, 51 Barb. 9; Wells v. Steam Navigation, 8 N. Y. 375; Steamer New Philadelphia, 1 Black, 62; The Cayuga, 16 Wall. 177; James Gray v. John Frazier, 21 How. 184.

The port of Racine was the home port of the tug. She was bound to know the channel, how to reach it, and whether, in the state of the wind and water, it was safe and proper to make the attempt to come in with her tow. If it were not, she should have advised waiting for a more favorable condition of things. She gave no note of warning. If what occurred was inevitable, she should have forecasted it, and refused to proceed. The spring-head of the disaster was the sudden turn of the tug around the end of the pier, combined with the shortness of the tow-lines. These involved the stopping of the tug and the loss of the steerage-way of the brig. The drifting of the latter, her impinging upon the pier, and her fracture and sinking, nec ssarily followed.

Conceding that the mode of entering the harbor by the tug was the best under the circumstances, and the disaster thereafter inevitable, then the effort showed a clear want of judgment. As before remarked, she should have known this, and governed herself accordingly. Her conduct, in this view, was more than an error. It was a fault; and upon this ground she should be condemned.

But there is another view of the case, more satisfactory to our minds and more clearly conclusive against the tug.

She took charge of the brig a mile and a half from the harbor. She had the whole surface of the lake for sea-room. There was nothing in the way. The wind was light and the sea was calm. She could have made any curvature necessary to put herself and the tow upon a right line to the harbor. Her course could then have been laid accordingly. She could have entered just where she did enter. She could have safely passed the swells she would have encountered. Her experience as she did enter proves this to have been so. She would have avoided the shoal-water and bar south of the channel where the swells were the highest. A single line would have answered for the tow. It might have been of any length deemed proper. The tow would have had ample steerage-way, and have obeyed her helm. She could have been kept in the wake of the tug, and would have safely passed the ground-swell, as did the tug. There being ample depth of water in the channel, and being larger and heavier than the tug, she would have encountered even less of difficulty and danger. The tug need not have stopped a moment. There would have been no tension and breaking of the lines by the grounding and jerkings of the brig. The traction would have gone on in unbroken continuity until the tow was so far within the harbor as to have been out of peril. The expert testimony proves that this could and should have been done. We find no sufficient answer to this view either in the record or in the able and elaborate argument submitted by the counsel for the appellants.

Upon this ground, also, we find the tug in fault.

Decree affirmed.

title: The Margaret/Opinion of the Court


text: Talk:The Margaret/Opinion of the Court

title: Talk:The Margaret/Opinion of the Court


text:
Supervisors v. Kennicott (94 U.S. 498)

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

Argued by Mr. A. L. Knapp for the appellants. The court declined to hear further argument.

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

title: Supervisors v. Kennicott (94 U.S. 498)


text: Talk:Supervisors v. Kennicott (94 U.S. 498)


text:
Supervisors v. Kennicott (94 U.S. 498)/Opinion of the Court

When this case was here on a former appeal, we decided that the mortgage in controversy was valid in favor of bona fide holders of the bonds it was given to secure, and that the complainants were entitled to a decree for the amount of the bonds held by them. Kennicott v. Supervisors, 16 Wall. 468, 471. These questions are, therefore, no longer open; for it is settled in this court, that whatever has been decided here upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up for consideration only the proceedings of the Circuit Court, after the mandate of this court. Himely v. Rose, 5 Cranch, 314; Martin v. Hunter's Lessee, 1 Wheat. 355; Browden v. McArther, 12 id. 53; Sibbard v. United States, 12 Pet. 492; Corning v. Troy Iron and Nail Co., 15 How. 466; Sizer v. Manry, 16 id. 103; Roberts v. Cooper, 20 id. 481; Tyler v. Maguire, 17 Wall. 283.

It is true that, after reversing the decree of the Circuit Court upon the former appeal, it was further ordered that the cause be remanded 'with directions to award a new trial;' but the mandate as sent down 'commanded that such execution and further proceedings be had in conformity to the opinion and decree of this court, as according to right, &c., ought to be had.' Technically, there can be no 'new trial' in a suit in equity; and as our mandates are to be interpreted according to the subject-matter of the proceeding here, and, if possible, so as not to cause inj stice, Story v. Livingston, 13 Pet. 359, it is proper to inquire what must have been intended by the use of that term in the decree, since it cannot have its ordinary meaning. For that purpose, we held, in West v. Brashaer, 14 Pet. 51, that resort might be had to the opinion delivered at the time of the decree. Availing ourselves of this rule, it is easy to see that there could have been no intention to open the case for further hearing upon the issues presented and decided here. There is not an expression of any kind in the opinion indicating any such determination. On the contrary, it is distinctly declared that the mortgage was valid, and that the complainants were entitled to their judgment. Under these circumstances, it is apparent that the words 'new trial' were used to convey the idea of such further action as should be found necessary to carry into effect what had been already decided. No error has been assigned upon the proceedings in the Circuit Court under the mandate construed in this way, and the decree of the Circuit Court is, therefore,

Affirmed.


text: Talk:Supervisors v. Kennicott (94 U.S. 498)/Opinion of the Court


text:
Eyster v. Centennial Board of Finance

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith and Mr. William M. Springer for the appellant.

Mr. William Henry Rawle and Mr. Robert N. Willson, contra.

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

title: Eyster v. Centennial Board of Finance


text: Talk:Eyster v. Centennial Board of Finance


text:
Eyster v. Centennial Board of Finance/Opinion of the Court

This case presents the single question whether, in the distribution of the moneys remaining in the treasury of the Centennial Board of Finance at the close of the affairs of that corporation, as provided for in sect. 10 of the act of June 1, 1872, the appropriation of $1,500,000 made by Congress in the act of Feb. 16, 1876, must be paid into the treasury of the United States before any division of assets is made among the stockholders in satisfaction and discharge of the capital stock.

It is very apparent that the object of Congress, in all its legislation with reference to the Centennial Exhibition, was to enable the people of the United States to commemorate 'the completion of the first century of their national existence' by an exhibition 'in which the people of the whole country should participate,' and which should have the sanction of the government. In that sense, the object was national; but it is equally clear, that, until the act of 1876, it was expected that the entire expense would be borne by the people without assistance from Congress. Certainly, no pecuniary liability whatever was assumed by Congress. That is declared in the most positive terms.

The acts of 1871 and 1872 did nothing more than provide the necessary organizations through which the people might operate under the auspices of the government. That of 1871 authorized the appointment of the board of commissioners, which was afterwards, by the act of 1872, incorporated as the 'United States Centennial Commission.' The duty of this board was to prepare and superintend the execution of a plan for holding the exhibition. That of 1872 was specially intended to provide a way by which the people could procure the necessary funds. It was so expressly declared in the preamble; and for that purpose the Centennial Board of Finance was incorporated, with apt provisions for subscription to and sale of its capital stock, and for the control and management of its affairs. The proceeds of the stock, together with the receipts from all other sources, were to be used by this corporation for the erection of buildings with their appurtenances, and for all other expenditures required in carrying out the objects of the act of 1871. Then, by sect. 10, it was provided, 'that, as soon as practicable after the said exhibition shall have been closed, it shall be the duty of said corporation to convert its property into cash, and, after the payment of its liabilities, to divide i § remaining assets among its stockholders, pro rata, in full satisfaction and discharge of its capital stock.'

Afterward came the act of 1876, which made the appropriation now under consideration, 'to complete the. . . buildings and other preparations,' and directed its payment to the president and treasurer of the Centennial Board of Finance for that purpose, but which contained a proviso, 'that in the distribution of any moneys that may remain in the treasury of the Centennial Board of Finance after the payment of its debts, as provided for by the tenth section of the act of Congress approved June 1, 1872, incorporating the Centennial Board of Finance, the appropriation hereinbefore made shall be paid in full into the treasury of the United States before any dividend or percentage of profits shall be paid to the holders of said stock;' and 'that the government of the United States shall not, under any circumstances, be liable for any debt or obligation of the United States Centennial Commission or the Centennial Board of Finance, or any payment in addition to the foregoing sum.'

The whole controversy arises upon this proviso. On the one hand, it is contended that it requires the repayment to the United States of the full amount of their appropriation before any distribution can be made to the stockholders; and, on the other, that the stockholders must be reimbursed for their stock subscriptions before any payment is made to the United States. It becomes necessary, therefore, to ascertain the intention of Congress in this particular, and for that purpose the acts of 1871, 1872, and 1876, being in pari materia, are to be examined and construed together.

There is no doubt but that the act of 1876 appropriated public moneys for the completion of the centennial buildings and other preparations. Neither is there any doubt that, under certain circumstances, the Centennial Board of Finance was required to pay back to the treasury of the United States the full amount of the appropriation. The corporation assumed such an obligation by taking the money upon the conditions imposed. If this did not create a debt, technically so called, it certainly did create a liability. The act of 1872 provided for a division of the assets of the corporation among the stockholders, only after the payment of all liabilities; and, unless the contract entered into otherwise directs, it would seem so be clear, that, so far as that act is concerned, the United States must be paid in full before the stockholders can claim any distribution among themselves.

In the act of 1876, the language is somewhat different. By that the United States are to be paid out of the moneys that remain in the treasury of the company, after the payment of the debts. If this were all, the intention would be manifest. The liability of a corporation to its stockholders on account of their stock is not a debt. The shares of a stockholder represent his proportion of the property of a corporation; and, upon the winding up of its affairs, the assets remaining after all liabilities are discharged are for division among the stockholders, according to their respective interests. The payment to stockholders upon such a division is for a dividend of the property divided, not for a debt owing by the corporation. The United States, then, even under this act, are entitled to a preference over the stockholders, unless the words 'before any dividend or percentage of profits shall be paid to the holders of such stock' change the condition of the parties. This will depend much upon the signification of the term 'profits' as here used.

In construing statutes, some effect should, if possible, be given to every word employed to express the legislative will. Nothing should be rejected, if it can be avoided; and nothing can be added, except by implication from what is expressed. As in the act of 1872 stockholders are not to be paid any thing until all liabilities are discharged, and in that of 1876 the United States are to be reimbursed before any profits can be divided, and no provision is made for the redemption of capital stock, except upon a division of the profits, it is apparent that, if such a redemption is to be made before the liability of the United States is satisfied, something must be supplied in the statute, by implication, that has been apparently omitted. The presumption is, however, that every thing has been expressed which was intended; and, if an effect can properly be given to the word 'profits' that will harmonize the two statutes, without a resort to implication, it should be done.

The capital stock of this corporation was not employed in, but to prepare for, the business of the contemplated exhibition; and the receipts of the exhibition, over and above its current expenses, are the profits of the business. These were the only profits anticipated. They are, in fact, the net receipts, which, according to the common understanding, ordinarily represent the profits of a business. The public, when referring to the profits of the business of a merchant, rarely ever take into account the depreciation of the buildings in which the business is carried on, notwithstanding they may have been erected out of the capital invested. Popularly speaking, the net receipts of a business are its profits. So here, as the business to be carried on was that of an exhibition, and its profits were to be derived only from its receipts, to the popular mind the net receipts would represent the net profits.

Giving that signification to the word in this case, we encounter no difficulties. The statutes are complete, and there is nothing to supply. Every thing is in harmony, and no strained construction is required. All accounts are easily adjusted, without resort to unusual proceedings.

When a corporation is to be wound up, there is not, ordinarily, a necessity for an account of profits. After the liabilities are paid, the remaining assets belong to the stockholders, and all that need be done is to make the proper division. For that purpose, it is quite immaterial whether what remains is profit or capital. In either case, it belongs to the stockholders, and is to be distributed among them pro rata. Such a division produces a dividend,-that is to say, a part or share of the thing divided. If the division is of profits, then the dividend is of profits; if of capital, then of capital. The dividends declared by a corporation in business usually are, and, except under special circumstances, always should be, from profits. Hence, the word frequently carries with it the idea of a division of profits; but that is not necessarily its only meaning. Its special signification, in any particular case, is always dependant upon the character of the thing divided.

By the act of 1872, the assets were to be reduced to cash, liabilities paid, and the remainder divided among stockholders. The words 'in satisfaction and discharge of its capital stock' add nothing to, and take nothing from, what precedes; and the whole of that part of sect. 10, taken together, provides for nothing more than what would have been done without it. If there had not been a word upon the subject, the law would have disposed of the property in precisely the same way, and the stockholders could have compelled a settlement upon that basis.

The act of 1876 requires the payment of debts, and then the reimbursement of the United States before a distribution of profits to stockholders. Not a word is said about restoring capital: in fact, there is no mention of capital at all. The act of 1872 is not repealed. On the contrary, it is left in full force in every particular, save that the new liability incurred to the United States is made payable after those contemplated by the act of 1872 are satisfied in full. In this, the United States made a concession to creditors, but not to the stockholders. Neither was any thing taken from stockholders: they retain all the rights which the act of 1872 gave them. If there had been no appropriation by Congress, the corporation would have been driven o the necessity of raising the required means, by borrowing or a further sale of stock. If by borrowing, the debt so created would have to be paid with the others, before there could be any dividend to stockholders. If by sale of stock, the new stockholders would come in pro rata with the old upon the final division of the assets.

Congress might have advanced the money by loan as well as upon the conditions it did impose. It might also have subscribed to the stock. If a loan had been made, and there had been no waiver of the legal rights of the government as a creditor, this debt would have preference over all others in the order of payment. If stock had been taken, the government would have participated in the final distribution like any other stockholder. It seemed best, however, not to adopt either of these plans, and another was devised, by which creditors were given a preference, and the United States remitted for their indemnity to the fund which might remain after all the debts were paid. To this the corporation assented, and the stockholders cannot now complain. Creditors were protected, and stockholders not injured.

We think, therefore, that Congress did not intend, by the act of 1876, to change the order of distribution as provided by that of 1872, except by giving a preference to other liabilities over that to the United States, and that the word 'profits' was used in 1876 to represent the net receipts of the business of the exhibition to be had in the buildings erected and upon the grounds prepared for its accommodation by means of the capital of the Centennial Board of Finance. In this way 'profits,' in the act of 1876, and 'remaining assets,' in that of 1872, have substantially the same meaning; and the two statutes are relieved from all discrepancies, without doing violence to the language of either.

If the impaired capital is made good out of the profits, it will be for the purposes of distribution only. Indirectly, therefore, a division of the capital unimpaired would operate as a dividend of profits, because, before the stockholders could be paid in full the receipts of the business must be applied to supply the deficiency arising from depreciation. Such a dividend is prohibited.

The decree of the Circuit Court must be reversed, and the cause remanded, with instructions to enter a decree directing the payment of the sum of $1,500.000 into the treasury of the United States by the Centennial Board of Finance before any division of the remaining assets of that corporation is made among the stockholders, and it is.

''So. ordered''.

MR. JUSTICE STRONG dissented.


text: Talk:Eyster v. Centennial Board of Finance/Opinion of the Court


text:
Allore v. Jewell

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. Alfred Russell for the appellant.

Mr. A. B. Maynard, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Allore v. Jewell


text: Talk:Allore v. Jewell

title: Talk:Allore v. Jewell


text:
Allore v. Jewell/Opinion of the Court

This is a suit brought by the heir-at-law of Marie Genevieve Thibault, late of Detroit, Mich., to cancel a conveyance of land alleged to have been obtained from her a few weeks before her death, when, from her condition, she was incapable of understanding the nature and effect of the transaction.

The deceased died at Detroit on the 4th of February, 1864, intestate, leaving the complainant her sole surviving heir-at-law. For many years previous to her death, and until the execution of the conveyance to the defendant, she was seised in fee of the land in controversy, situated in that city, which she occupied as a homestead. In November, 1863, the defendant obtained from her a conveyance of this property. A copy of the conveyance is set forth in the bill. It containscovenants of seisin and warranty by the grantor, and immediately following them an agreement by the defendant to pay her $250 upon the delivery of the instrument; an annuity of $500; all her physician's bills during her ife; the taxes on the property for that year, and all subsequent taxes during her life; also, that she should have the use and occupation of the house until the spring of 1864, or that he would pay the rent of such other house as she might occupy until then. The property was then worth, according to the testimony in the case, between $6,000 and $8,000. The deceased was at that time between sixty and seventy years of age, and was confined to her house by sickness, from which she never recovered. She lived alone, in a state of great degradation, and was without regular attendance in her sickness. There were no persons present with her at the execution of the conveyance, except the defendant, his agent, and his attorney. The $250 stipulated were paid, but no other payment was ever made to her; she died a few weeks afterwards.

As grounds for cancelling this conveyance, the complainant alleges that the deceased, during the last few years of her life, was afflicted with lunacy or chronic insanity, and was so infirm as to be incapable of transacting any business of importance; that her last sickness aggravated her insanity, greatly weakened her mental faculties, and still more disqualified her for business; that the defendant and his agent knew of her infirmity, and that there was no reasonable prospect of her recovery from her sickness, or of her long surviving, when the conveyance was taken; that she did not understand the nature of the instrument; and that it was obtained for an insignificant consideration, and in a clandestine manner, without her having any independent advice.

These allegations the defendant controverts, and avers that the conveyance was taken upon a proposition of the deceased; that at the date of its execution she was in the full possession of her mental faculties, appreciated the value of the property, and was capable of contracting with reference to it, and of selling or otherwise dealing with it; that since her death he has occupied the premises, and made permanent improvements to the value of $7,000; and that the complainant never gave him notice of any claim to the property until the commencement of this suit.

The court below dismissed the bill, whereupon the complainant appealed here. The question presented for determination is, whether the deceased, at the time she executed the conveyance in question, possessed sufficient intelligence to understand fully the nature and effect of the transaction; and, if so, whether the conveyance was executed under such circumstances as that it ought to be upheld, or as would justify the interference of equity for its cancellation.

Numerous witnesses were examined in the case, and a large amount of testimony was taken. This testimony has been carefully analyzed by the defendant's counsel; and it must be admitted that the facts detailed by any one witness with reference to the condition of the deceased previous to her last illness, considered separately and apart from the statements of the others, do not show incapacity to transact business on her part, nor establish insanity, either continued or temporary. And yet, when all the facts stated by the different witnesses are taken together, one is led irresistibly by their combined effect to the conclusion, that, if the deceased was not afficted with insanity for some years before her death, her mind wandered so near the line which divides sanity from insanity as to render any important business transaction with her of doubtful propristy, and to justify a careful scrutiny into its fairness.

Thus, some of the witnesses speak of the deceased as having low and filthy habits; of her being so imperfectly clad as at times to expose immodestly portions of her person; of her eating with her fingers, and having vermin on her body. Some of them testify to her believing in dreams, and her imagining she could see ghosts and spirits around her room, and her claiming to talk with them; to her being incoherent in her conversation, passing suddenly and without cause from one subject to an ther; to her using vulgar and profane language; to her making immodest gestures; to her talking strangely, and making singular motions and gestures in her neighbors' houses and in the streets. Other witnesses testify to further peculiarities of life, manner, and conduct; but none of the peculiarities mentioned, considered singly, show a want of capacity to transact business. Instances will readily occur to every one where some of them have been exhibited by persons possessing good judgment in the management and disposition of property. But when all the peculiarities mentioned, of life, conduct, and language, are found in the same person, they create a strong impression that his mind is not entirely sound; and all transactions relating to his property will be narrowly scanned by a court of equity, whenever brought under its cognizance.

The condition of the deceased was not improved during her last sickness. The testimony of her attending physician leads to the conclusion that her mental infirmities were aggravated by it. He states that he had studied her disease, and for many years had considered her partially insane, and that in his opinion she was not competent in November, 1863, during her last sickness, to understand a document like the instrument executed. The physician also testifies that during this month he informed one Dolsen, who had inquired of the condition and health of the deceased, and had stated that efforts had been made to purchase her property, that in his opinion she could not survive her sickness, and that she was not in a condition to make any sale of the property 'in a right way.'

This Dolsen had at one time owned and managed a tannery adjoining the home of the deceased, which he sold to the defendant. After the sale, he carried on the business as the defendant's agent. Through him the transaction for the purchase of the property was conducted. The deceased understood English imperfectly, and Dolsen undertook to explain to her, in French, the contents of the paper she executed. Some attempt is made to show that he acted as her agent; but this is evidently an afterthought. He was in the employment of the defendant, had charge of his business, and had often talked with him about securing the property; and in his interest he acted throughout. If the deceased was not in a condition to dispose of the property, she was not in a condition to appoint an agent for that purpose.

The defendant himslef states that he had seen the deceased for years, and knew that she was eccentric, queer, and penurious. It is hardly credible that, during those years, carrying on business within a few yards of her house, he had not heard that her mind was unsettled; or, at least, had not inferred that such was the fact, from what he saw of her conduct. Be that as it may, Dolsen's knowledge was his knowledge; and, when he covenanted to pay the annuity, some inquiry must have been had as to the probable duration of the payments. Such covenants are not often made without inquiries of that nature; and to Dolsen he must have looked for information, for he states that he conversed with no one else about the purchase. With him and with his attorney he went to the house of the deceased, and there witnessed the miserable condition in which she lived, and he states that he wondered how anybody could live in such a place, and that he told Dolsen to get her a bed and some clothing. Dolsen had previously informed him that she would not sell the property; yet he took a conveyance from her at a consideration which, under the circumstances, with a certainty almost of her speedy decease, was an insignificant one compared with the value of the property.

In view of the circumstances stated, we are not satisfied that the deceased was, at the time she executed the conveyance, eapable of comprehending fully the nature and effect of the transaction. She was in a state of physical prostration; and from that cause, and her previous infirmities, aggravated by her sickness, her intellect was greatly enfeebled; and, if not disq alified, she was unfitted to attend to business of such importance as the disposition of her entire property, and the securing of an annuity for life. Certain it is, that, in negotiating for the disposition of the property, she stood, in her sickness and infirmities, on no terms of equality with the defendant, who, with his attorney and agent, met her alone in her hovel to obtain the conveyance.

It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely incapable of executing a valid deed. It is sufficient to show that, from her sickness and infirmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred. In the case of Harding v. Wheaton, reported in the 2d of Mason, a conveyance executed by one to his son-in-law, for a nominal consideration, and upon a verbal arrangement that it should be considered as a trust for the maintenance of the grantor, and after his death for the benefit of his heirs, was, after his death, set aside, except as security for actual advances and charges, upon application of his heirs, on the ground that it was obtained from him when his mind was enfeebled by age and other causes. 'Extreme weakness,' said Mr. Justice Story, in deciding the case, 'will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity; and though a contract, in the ordinary course of things, reasonably made with such a person, might be admitted to stand, yet if it should appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness or its value, fully and fairly, it cannot be that the law is so much at variance with common sense as to uphold it.' The case subsequently came before this court; and, in deciding it, Mr. Chief Justice Marshall, speaking of this, and, it would seem, of other deeds executed by the deceased, said: 'If these deeds were obtained by the exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to derive any advantage from them. It is the peculiar province of a court of conscience to set them aside. That a court of equity will interpose in such a case is among its best-settled principles. Harding v. Handy, 11 Wheat. 125.

The same doctrine is announced in adjudged cases, almost without number; and it may be stated as settled law, that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside. And the present case comes directly within this principle.

In the recent case of Kempson v. Ashbee, 10 Ch. Cas. 15, decided in the Court of Appeal in Chancery in England, two bonds executed by a young woman, living at the time with her mother and step-father,-one, at the age of twenty-one, as surety for her step-father's debt, and the other, at the age of twenty-nine, to secure the amount of a judgment recovered on the first bond,-were set aside as against her, on the ground that she had acted in the transaction without independent advice; one of the justices observing that the court had endeavored to prevent persons subject to influence from being induced to enter into transactions without advice of that kind. The principle upon which the court acts in such cases, of protecting the weak and dependent, may always be invoked on behalf of persons in the situation of the deceased spinster in this case, of doubtful sanity, living entirely by erself, without friends to take care of her, and confined to her house by sickness. As well on this ground as on the ground of weakness of mind and gross inadequacy of consideration, we think the case a proper one for the interference of equity, and that a cancellation of the deed should be decreed.

The objection of the lapse of time-six years-before bringing the suit cannot avail the defendant. If during this time, from the death of witnesses or other causes, a full presentation of the facts of the case had become impossible, there might be force in the objection. But as there has been no change in this respect to the injury of the defendant, it does not lie in his mouth, after having, in the manner stated, obtained the property of the deceased, to complain that her heir did not sooner bring suit against him to compel its surrender. There is no statutory bar in the case. The improvements made have not cost more than the amount which a reasonable rent of the property would have produced, and the complainant, as we understand, does not object to allow the defendant credit for them. And as to the small amount paid on the execution of the conveyance, it is sufficient to observe, that the complainant received from the administrator of the deceased's estate only $113.42; and there is no evidence that he ever knew that this sum constituted any portion of the money obtained from the defendant. A decree must, therefore, be entered for a cancellation of the deed of the deceased and a surrender of the property to the complainant, but without any accounting for back rents, the improvements being taken as an equivalent for them.

Decree reversed, and cause remanded with directions to enter a decree as thus stated.

MR. JUSTICE STRONG, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE BRADLEY, dissenting.

title: Allore v. Jewell/Opinion of the Court


text: Talk:Allore v. Jewell/Opinion of the Court


text:
Allore v. Jewell/Dissent Strong

MR. JUSTICE STRONG, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE BRADLEY, dissenting.

I cannot concur in the judgment given in this case. Were there no other reason for my dissent, it would be enough that the complainant has been guilty of inexcusable laches. He knew every thing of which he now complains, in February, 1864, when the grantor of the defendant died, and when his rights as her heir vested; and yet he waited until six years and nine months thereafter before he brought this suit, and before he made any complaint of the sale she had made. Meanwhile, he accepted the money the defendant had paid on account of the purchase, and he stood silently by, aserting no claim, while the defendant was making valuable improvements upon the lot, at a cost of $6,000 or $7,000, a sum about equal to the value of the property at the time of the purchase. To permit him now to assert that the sale was invalid, because the vendor was of weak mind, is to allow him to reap a profit from his own unconscionable silence and delay. I cannot think a court of equity should lend itself to such a wrong.

title: Allore v. Jewell/Dissent Strong


text: Talk:Allore v. Jewell/Dissent Strong

title: Talk:Allore v. Jewell/Dissent Strong