text:
O'Neal v. Kirkpatrick/Opinion of the Court

What affords some plausibility to the argument, on the part of the plaintiff, is the peculiarity of the words of the proviso. The words are, 'provided, no marsh or tide lands located within five miles of the city, &c., shall be sold or purchased by authority of this act.' This purchase, as appears from the certificate, was made in 1864, under the act of May 13th, 1861, and hence was not within any restriction, as none existed in that act. The point is a nice one, but, we are inclined to think, not substantial. It will be observed that the act of May 14th does not profess to confer any authority of itself to sell or to purchase the marsh and tide lands, but provides that any remaining unsold may be purchased under the provisions of the laws now in force that is, under the act of May 13th. It incorporates, by the reference, that act into its own provisions as the authority for future sales, and when the restriction is limited to sales or purchases made by authority of this act, it necessarily embraces sales and purchases under the act of May 13th, that being the act to which reference is made, and where the authority may be found. This construction, which conforms to the fair and reasonable import of the terms of the act, makes the two statutes sensible and consistent, and avoids the absurdity which must otherwise be imputed to the legislature of passing two acts, in two consecutive days, each containing an independent authority for the sale and purchase of these marsh and tide lands-one with the five miles restriction, and the other without it.

It may be said that the clause authorizing the sales of these lands in the act of May 14th, in terms, refers only to laws then in force, providing for the sales of swamp and overflowed lands, and hence that the reference is to the act of April 21st, 1858. But the answer is, that the act of May 13th provides for the sales of lands of this class, and then, by the 27th section, enacts that the provisions of the act should apply to salt-marsh or tide lands the same as to those of swamp and overflowed. This section incorporated these marsh and tide lands into the several provisions of the act of May 13th, putting them on the same footing as the other class, and hence the reference in the act of May 14th fairly embraced them. But, independently of this view, as the act of May 13th provided for the sales of swamp and overflowed lands, the reference, by its terms, is as applicable to that act as to the act of 1858.

The intent of the legislature to prohibit these sales within the five miles is apparent from another provision of the act of May 14th, for while it confirmed those that had been made under some misconstruction of previous laws, it excepted those made within the five miles, save only alcalde grants.

There is another act of the legislature quite as decisive against the title of the plaintiff as the one we have examined, and less involved, passed April 27th, 1863. This act provides for the sales of swamp and overflowed marsh and tide lands belonging to the State. It fixes the price and time of credit given to the purchaser, prescribes the oath to be taken by him on the application, and the duties of the county surveyor in making the location, also of the surveyor-general and register of the land office. The act provides, also, for certificates of purchase and the issuing of the patents; and section 30 declares: 'This act shall not apply to the marsh and tide lands upon the city front, and within five miles of the city and county of San Francisco,' &c. And section 31 provides that 'all acts and parts of acts in conflict with the provisions of this act are hereby repealed.'

This act adopts a general system for the sale of certain specified classes of the public lands, and, among others, marsh and tide lands, and, as we have seen, repeals in express terms all previous laws inconsistent or in conflict with it. And, of course, if any previous law existed authorizing a sale of these lands within five miles of the city of San Francisco, which the 30th section of this act prohibits, it must be regarded as repealed.

We need only add, the sale of the lot in question was made after the passage of this act. There being no authority to sell the land in question or issue the certificate, it follows that the plaintiff is without title, and the court below was right in giving judgment for the defendant.

JUDGMENT AFFIRMED.

Mr. Justice FIELD did not sit in the case, or take any part in its decision.


text: Talk:O'Neal v. Kirkpatrick/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: Deery v. Cray (72 U.S. 795)

title: Deery v. Cray (72 U.S. 795)


text: Talk:Deery v. Cray (72 U.S. 795)

title: Talk:Deery v. Cray (72 U.S. 795)


text:
Deery v. Cray (72 U.S. 795)/Opinion of the Court

THIS was an action of ejectment brought in the Circuit Court for the District of Maryland, by Eliza C. Deery, to recover an undivided third part of a tract of land, called Kent Fort Manor, on Kent Island, in Queen Anne's County, Maryland. The defendants were Cray, Bright, and others, occupying different parts of the tract.

Miss Deery, the plaintiff, was the danghter of Elizabeth Chew, who married William Deery, and afterwards, in second marriage, Eli Beatty. The Elizabeth Chew thus married was the daughter of Samuel Lloyd Chew the younger, who died about the year 1796, intestate, leaving the said Elizabeth Chew, and also three others, his children and heirs-at-law. The effort of the plaintiff was to trace title, from the original patentee of Kent Fort Manor to her grandfather, Samuel Lloyd Chew, from whom she claimed through her mother, who died the wife of Eli Beatty in 1838. Title was shown regularly enough down to a certain William Brent, of Virginia.

In the progress of the trial she took six bills of exception to rulings of the court on the admissibility of evidence.

It is only necessary to refer to the fourth and sixth exceptions, those being the only ones considered by this court, because, as the court said, the fourth referred to and embodied all that was contained in the three previous bills of exception on the same subject; and because the conclusions of the court on the question raised by that bill of exceptions rendered the matter involved in the fifth unimportant.

As regarded this fourth and this sixth exception the case was thus:

1. As to the fourth. Having read to the jury without objection evidence tending to show title and possession of the land in the above-mentioned William Brent, from the year 1767, the plaintiff offered to read a copy of a deed, certified from the proper recording office, purporting to be made by Elinor Brent, executrix, and Daniel Carroll Brent and William Brent, acting executors, of the last will and testament of the William Brent first mentioned, conveying the manor to Samuel Chew. This deed recited that William Brent, Sr., deceased, by his last will and testament, bearing date January 7, 1782, constituted the persons aforesaid executors of the said will, and authorized them to sell and convey in fee-simple the land and premises described in the said deed, and that William Brent, who united in the conveyance as executor, was also heir-at-law of the said William Brent, senior. The deed then undertook by apt language, to convey by virtue of the will, and William Brent also conveyed as heir-at-law, and they jointly and severally covenanted to warrant the title. The plaintiff offered no evidence of the existence of the will under which the executors professed to act, nor of the heirship of William Brent, one of the grantors, other than what was contained in the recitals of the deed; and for want of such proof the court rejected the deed. Proof had been made of fruitless search among title-papers and records for the will recited.

The plaintiff then offered a mass of testimony designed to show that the possession of the land had passed with the said deed, and had been held under it, and in consistency with it, for such a length of time as to raise a presumption of the truth of one or both of the recitals above mentioned.

To understand this testimony the better, it may be stated that the whole tract is divided first into two parts by a line, below which lies a part called 'the lowermost half part,' now claimed by the defendant Cray. The upper half is divided into three parts, one to the east called Long Point farm, another next westwardly called the Indian Point (or Green's Creek) farm, and a third, more westerly yet, about which there was no dispute. The three together make up the northern half.

The evidence thus offered in support of the deed was partly documentary and partly parol. Taking the former chronologically it presented:

1. The will of Samuel Chew, the grantee, in the deed dated November 24th, 1785, about six months after the date of that conveyance to him. He died the succeeding year. By this will he devised Kent Fort Manor to his wife, Elizabeth Chew, for life, and after her death to his son, Samuel Lloyd Chew.

2. A mortgage of Kent Fort Manor by Samuel Lloyd Chew to Charles Carroll of Carrollton, dated February 20th, 1789, shortly after the death of his father.

3. A deed from Philip Barton Key to Arthur Bryan, dated May 7th, 1798, conveying 'all that moiety or half-part of Kent Fort Manor, on Kent Island, in Queen Anne's County, being the lowermost half-part of said tract of land called Kent Fort Manor, and is the same land and half-part of which Mrs. Chew was heretofore seized.' This deed had a full covenant of warranty.

4. An agreement of counsel that the land thus conveyed to Arthur Bryan was partitioned among his heirs in 1802, by the Chancery Court of Maryland, and allotted to Susanna Tait, sister of said Arthur.

5. A deed from Samuel A. Chew, son of Samuel Lloyd Chew, dated March 6th, 1838, conveying to Thomas Murphy Long Point farm, a part of Kent Fort Manor.

6. A deed from said Samuel A. Chew to James Bright, Jr., dated January 4th, 1840, conveying Indian Point farm, another part of said manor.

These two farms, as already said, were on the north half of the manor, and form no part of the land conveyed by Key to Bryan.

All these documents were copies, properly certified to come from the recording offices where such deeds should rightfully be recorded.

The parol evidence showed that Samuel Chew, first of the name and grantee in the deed, died in 1786; that his son, Samuel Lloyd Chew, second of the name, died in 1796, leaving as his heirs Samuel A. Chew, third of the name, Bennett Chew, Henrietta Chew, and Elizabeth Chew. The plaintiff, as already said, was daughter of the last-named person, and in that right claimed the property in controversy. Elizabeth Chew, widow of the first Samuel Chew and his devisee for life of the property, died in 1807. It was further shown that one William Bryan, who in 1802 resided on Long Point farm and Indian Point farm, and who had resided there for several years previous, stated repeatedly that he held his possession under the Chews; that in 1825 Samuel A. Chew, third of the name and uncle to plaintiff, took possession of about five hundred acres of the north part of said manor, west of Long Point and Indian Point farms, which he held until his death, in 1843, and that the same was not held under that title; that Robert Tait, son and heir of Susanna Tait, was in 1825 in possession of the southern half of the manor, and sold it to Richard Cray, his son-in-law, and that possession was now held under that title.

All this being finally offered with the deed, they were rejected by the court, to which rejection an exception-the fourth one in the case-was taken.

2. As to the sixth exception. In the further progress of the trial some of the defendants offered in evidence a deed from the plaintiff's mother, then married to Beatty, to Samuel A. Chew, her uncle, purporting to convey all her interest in Kent Fort Manor. As the plaintiff claimed as heir-at-law of her mother, this deed, if admitted, was apparently destructive of her claim. Her counsel objected to the admission of the deed on the ground that it was defectively acknowledged.

By statutes in Maryland, femes covert can convey their lands by deed acknowledged before two justices of the county court, such acknowledgment being made by the woman 'out of the presence and hearing of her husband;' the clerk of the court certifying that they were the 'justices of the said court.' In the case of the deed from the plaintiff's mother, now offered, the acknowledgment in that part relating to the presence of the husband, ran thus:

'STATE OF MARYLAND, to wit:

'Be it remembered, that on this 26th of October, 1821, personally appeared before us, two justices of the peace of the State of Maryland for Washington County, the above-named Eli Beatty and Elizabeth his wife, and Henry C. Schnebly and Henrietta Maria his wife, party grantors in the foregoing instrument of writing, and severally acknowledged the same to be their and each of their act and deed, &c., and the said Elizabeth C. Beatty, wife of Eli Beatty, &c., being by us, two justices of the peace as aforesaid, respectively, privately examined apart from and out of the hearing of their and each of their husbands, whether they and each of them doth make their acknowledgment of the said instrument of writing willingly and freely, &c.'

The certificate of the clerk under the court's seal was:

'STATE OF MARYLAND, WASHINGTON COUNTY, ss:

'I hereby certify that, &c., whose names are signed to the above acknowledgment, were, at the time of signing thereof, and still are, justices of the peace for the county aforesaid, duly commissioned and qualified, and to all their acts as such full faith and credit is, and ought to be, given, as well in courts of justice as thereout.'

The objections made by the plaintiff to this certificate of acknowledgment were:1. That it did not show that the justices who took the acknowledgment had been sworn into office; nor

2. That they were justices of the county for which they took the acknowledgment; nor

3. That Mrs. Beatty had been examined 'out of the presence of her husband.'

But the court overruled the objections, and an exception,-the sixth in number on the record,-was taken.

The case was now here on the exceptions.

Mr. Brent, for the plaintiff in error, contended, 1. That the recitals in the deed from the executors of W. Brent being ancient recitals, were presumably true, and that the court had erred in rejecting the deed upon the mass of proof, documentary and parol, showing that it had been followed by long and harmonious possession on the part of the grantee, and those claiming under him, down to the year 1840.

2. That the objection taken in the case of the deed said to have been executed by Mrs. Beatty, especially the third objection, ought to have prevailed; decisions in Maryland relating to the acknowledgment of deeds by femes covert being very strong to the point that the formula of acknowledgment presented by the statutes should be literally followed, equivalent words not being enough.

Messrs. Wallis and Alexander contending, primarily, that William Brent, who was a party to the deed as executor, did not convey as heir-at-law, but in a different capacity, to wit, in the capacity of one taking under the will, and that when you set up the will you were estopped to set up heirship,-heirship being incompatible with the very title sought to be derived under the deed,-argued—

1. That if the deed were admitted, and all the proof given to sustain it were admitted, it did not raise the presumption that the recitals were true; that, independently of other matters (which the counsel urged), there was no evidence that Samuel Lloyd Chew ever had possession; that in 1789 his son mortgaged all his interest to Charles Carroll of Carrollton; and that no evidence being produced that this mortgage had been either paid or released, the plaintiff herself had shown that title had passed out of the ancestor under whom she claimed. At this point the chain was completely broken, and a hiatus made which no presumption supplies. That this was especially true of the lowermost half-part, where the title comes to Bryan, through Key alone, who shows no title derived from any of the Chews at all.

That both in Virginia and Maryland wills were matter of record, and that the failure to find a will anywhere proved that none ever existed.

2. That the acknowledgment in the deed from the plaintiff's mother was substantially a compliance with the statute in regard to the acknowledgment of femes covert, and if not, that the defect was cured by certain curative acts of the State; that at all events the deed had been rightly admitted.

3. That if the second deed was rightly received the plaintiff could not have recovered under any circumstances; and that so, not having been prejudiced by rejection of the first deed, and the evidence to support it, this court would not reverse, even if they considered that there had been error in that rejection; the plaintiff having no further case to litigate.

Mr. Justice MILLER delivered the opinion of the court, and having stated the facts of the offer of the copy of the deed from the executors of W. Brent, and of the offer of the mass of testimony designed to show that possession had so passed with the deed, and had been held under and in consistency with it for such a length of time as to raise a presumption of the truth of one or both the recitals in it-went on as follows:

Before we proceed to examine the sufficiency of this evidence for the purpose for which it was offered, we shall notice a criticism of defendants' counsel in regard to the matter in the recitals, of which proof can be received. It is said that by the recital of the existence of a will which authorizes the executors of William Brent, Sr., to convey the land, William Brent, Jr., and Samuel Chew, the grantee, and all persons claiming under them, are estopped from denying the existence of such a will, and from claiming any benefit from the fact that William Brent, Jr., was heir-at-law, and conveyed as such heir, as well as executor. The proposition does not seem to us to be well founded. It may be very true that William Brent and the other grantors in that deed were estopped as against Samuel Chew to deny the truth of anything recited in the deed. And if any controversy growing out of that transaction had ever arisen, in which Samuel Chew, or any person claiming under him, was adversary to William Brent, or any person claiming in his right, the person claiming under the latter would have been estopped from denying the existence of such a will as that described in the deed, or that said Brent was heir to William Brent, Sr. But suppose that William Brent, some years after the execution of this deed, had brought an action of ejectment against a person who derived no right under the deed, but who claimed adversely to the title of both Brent and Chew, would William Brent, in that case, have been estopped from claiming as heir of his father by the recital of the will in his deed to Chew? Clearly not; for the simple reason that no person can rely upon estoppel growing out of a transaction to which he was not a party nor a privy, and which in no manner touches his rights. There is no mutuality, which is a requisite of all estoppels. That is precisely the case before us. The plaintiff claims under Brent and his deed. Defendants claim nothing under that deed, and deny all connection with the title it purports to give. They are strangers to it, and have no right to set up its recitals as estoppels.

There is another reason why there can be no such estoppel. It was the manifest intent of all the parties to the deed that it should convey such title as might be conveyed under the will, and if that should be invalid, convey such title as William Brent had as heir-at-law. These purposes did not necessarily defeat each other. There might have been a will, and it might have been doubtful whether it had been executed with the formalities necessary to transmit title to land in Maryland, or to authorize the executors to do so. In such case the purchaser had a right to take, also, for his security, a conveyance from the heir-at-law. If he could do this by a separate instrument, there is no reason why he could not do it in the same instrument which professed to convey by authority of the will. The very nature of the case, therefore, precludes the idea of estoppel; for, to say that a party claiming under that deed is estopped to assert that William Brent inherited the land as heir-at-law, is to deprive him of a right conferred by the deed, and which was one of the essential conditions of its acceptance.

If, then, the testimony offered by plaintiff was sufficient to raise the presumption that William Brent was heir-at-law of the party who died seized, or that such a will existed as that recited in the deed, then that instrument should have been read to the jury.

The evidence offered in support of the deed may be divided into that which is documentary and that which is parol.

It is not necessary that we should go into a minute examination of the effect of this testimony. We are satisfied that it affords a reasonable and fair presumption that every part of Kent Fort Manor has been held under the deed from William Brent and his co-executors to Samuel Chew, from its date in 1785 till the present time. In reference to the north half of the manor, there can be no reasonable doubt of this proposition, for no one is in possession of any part of it who does not hold under Samuel Chew, grandson of the grantee, and son of Samuel Lloyd Chew, to whom the manor was devised by that grantee. It is maintained, however, that in reference to the southern half of the manor, which is proved to have been held under the deed from Philip Barton Key to Arthur Bryan, from the date of that deed in 1798 to the present time, there is a hiatus which can be filled by no presumption. If, however, we recall the statement in Key's deed to Bryan, that the land which he is conveying 'is the same land and half-part of Kent Fort Manor of which Mrs. Chew was heretofore seized,' we can have no difficulty in presuming that in some way Key had become the owner of Mrs. Chew's title. The lapse of time and the reference to her seizin would be sufficient to authorize a jury to presume a conveyance by Mrs. Chew to Key, or to some one from whom he derived title. This consideration is strengthened by the fact that Key covenants to warrant the title to the land against all persons whomsoever. It is unreasonable to believe that in the very deed in which he makes this covenant he would admit Mrs. Chew's former seizin and point to her title, unless he had in some way become invested with that title, especially as she was still living and could have asserted her right against Key's grantee, if she had not in some manner parted with it.

Is it requiring too much to presume from these facts that one or both the recitals in the rejected deed, and on which its power to convey this land depends, are true? Not a single circumstance is to be found inconsistent with the fact that William Brent, one of the grantees in that deed, was son and heir to William Brent, Sr. Nor is there anything except the failure to find it, inconsistent with the existence of such a will as is recited in that deed. When we consider that William Brent, Sr., died in Virginia; that all the grantees in the deed resided there; that the system of recording and proving wills had not then become so general and so well understood as it has since, and that for eighty years no occasion has arisen for the production of that will, the failure to find it by parties who have no other relations with the Brents than this one transaction of their ancestors, does not argue so forcibly against its existence at that time, as to overthrow the presumption arising from long possession of this manor, held under the supposition of the existence of such will.

That recitals of this kind in an ancient deed may be proved as against persons who are not parties to the deed, and who claim no right under it, is too well settled to admit now of controversy. Such is the doctrine of this court in Carver v. Jackson, and in Crane v. Astor and Morris. The only question is, whether the facts justify such a presumption, and we must say that, if they can do so in any case, we do not see how the inference can be resisted in the case before us.

It follows that the Circuit Court erred in refusing to admit the deed offered by plaintiff as set out in the fourth bill of exceptions.

2. In the further progress of the trial some of the defendants offered in evidence a deed from the plaintiff's mother to Samuel A. Chew, her uncle, purporting to convey all her interest in Kent Fort Manor. As plaintiff's efforts, as far as developed, had been to establish a title as heir-at-law of her mother, of course this deed, if admitted, was fatal prima facie to her claim. Her counsel objected to the admission of the deed, and his objection being overruled, he took his sixth bill of exceptions, which we now proceed to examine.

All the objections made to this deed relate to the certificate of acknowledgment. The first two are unimportant. They are that it does not appear that the justices of the peace who took the acknowledgment were sworn into office, or that they took the acknowledgment in the county of which they were justices. We think that it is a presumption of law from the facts stated in the certificate of the justices, and of the clerk of the county court, that both these requirements were complied with.

But it is also strenuously urged that the deed is void because the certificate does not show a compliance with the law of Maryland then in force concerning the privy examination of married women. The act of 1807, which was in force at that time, required this examination to be conducted out of the presence and hearing of the husband, and the point is made that it does not appear from the certificate that Mrs. Beatty, the mother of plaintiff, was examined out of the presence of her husband, with whom she joined in the conveyance. The certificate recites 'that the said Elizabeth C. Beatty, wife of Eli Beatty, and Henrietta Schnebly, wife of Henry Schnebly, being by us, justices of the peace as aforesaid, respectively, privately examined apart from, and out of the hearing of their, and each of their husbands, did,' &c. Now, although the words 'out of the presence' are not used here, we are of opinion that the words which are used show necessarily and conclusively that the examination was had out of the presence of the husband.

In the first place, it was had privately. As the object of the statute was not to provide for strict privacy from all persons, but only privacy from the husband, it is to be supposed that it was in this sense the justices used the word. It is also stated that she was examined apart from her husband. This expression is still stronger, and can mean nothing less than that the husband was not present when she was examined; and, to make it still clearer that this examination, private and apart from her husband, was out of his presence, it is further certified that it was out of his hearing.

Some decisions of the Supreme Court of Maryland have been cited to show that the rule there is a strict one as to the agreement between the certificate and the statute, but none which overturns the doctrine recognized by that court, as it has been by all others, that equivalent words, or words which convey the same meaning, may be used instead of those to be found in the statute. We are satisfied that within this principle the certificate in this case is a compliance with the act of 1807, and that there was no error in admitting the deed to be read to the jury.

It is claimed that, if we shall find this deed to be valid, we must affirm the judgment, although we may find error in the previous rulings of the court, upon the ground that this conveyance shows that plaintiff has no title to the land, and that therefore such error is without prejudice to her rights. We concede that it is a sound principle that no judgment should be reversed in a court of error when the error complainted of works no injury to the party against whom the ruling was made But whenever the application of this rule is sought, it must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the party's rights. In the case before us this is not so clear. The plaintiff, by reason of the error of the court, had never been permitted to introduce the first step in the proof of her case. She had no interest in offering to show anything which might avoid the force of the deed read by defendants. If she could have proved it a forgery it would have done her no good in this suit, because she had failed, under the erroneous ruling of the court, to make out a prima facie case for herself. We cannot assume here that she might not have successfully avoided the effect of that deed, if the court had given her a standing in the case which would have made it avail her to do so.

The judgment of the Circuit Court must therefore be REVERSED, and the case remanded, with directions to award

A NEW TRIAL.


text: Talk:Deery v. Cray (72 U.S. 795)/Opinion of the Court


text:
Lee v. Dodge

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

The appellants were the heirs-at-law of G. W. Lee, and, on the strength of the title which they had inherited from him, and obtained in the Circuit Court just named, a judgment in ejectment against Dodge and others for a part of lot 4, block 53, of the city of Chicago. The defendants in that action set up a conveyance from Lee to Lois Cogswell, and showed by sundry mesne conveyances, they were in possession of the lot under that deed. It was, however, proved on the trial, that the deed to Lois Cogswell was left by Lee at his death among his papers, signed and acknowledged, but with a blank space where the name of the grantee should be; and that this was filled up with the name of Lois Cogswell, and delivery of the instrument made without authority, after G. W. Lee's death, by B. T. Lee, his administrator. As both parties claimed title under Lee, the plaintiffs of course had a verdict and judgment, and thereupon the defendants in that suit filed a bill in the same court for an injunction, and for a conveyance of the legal title. The case was thus:

On the 4th May, 1836, Lee, who resided in the West, and was about to start on a tour from New York to Illinois, entered into a written agreement with Jonathan Cogswell, Lois Cogswell (sister to Jonathan), and F. S. Kinney, Esq. (a member of the bar), by which he agreed to invest in real estate ten thousand dollars furnished by the other three parties to the contract, in the proportion of $5000 by Jonathan Cogswell, $3000 by Lois Cogswell, and $2000 by Kinney. Lee agreed to pay to each of his partners one-half the sum advanced, with interest, within three years, and to give his personal attention to the business. The profits and losses were to be shared, one-half by him and the other half by the others. He was at liberty to make purchases to the amount of $40,000 partly on credit. The titles were in the first place to be taken in Lee's name, and he was afterwards to make such conveyances as the state of the venture required.

Lee invested the ten thousand dollars as agreed, getting among other purchases six canal lots in Chicago, which were bought largely on credit. He also purchased for himself about the same time and in the same manner, lot 4, block 53, which was also a canal lot. He seems to have been engaged in various speculations about that time, and shortly after became much indebted and embarrassed. Not being able to pay his partners the half the money they had invested, when the three years elapsed, he confessed to J. Cogswell, for their joint benefit, a judgment for the $5000 and interest, Towards the close of 1841 he availed himself of a privilege allowed by the statute of Illinois, and consolidated his payments on the canal lots; that is to say, he concentrated all the payments which he had made on six lots, upon two and part of another, and thereby paid in full and obtained clear title for these, and relinquished his claim to the others. In doing this he made his own lot 4, block 53, one of those on which payments were consolidated, and thus became debtor to the partnership for about $1500, a little more than one-third the cost of that lot.

On the 26th March, 1842, his health having been for some months broken down, he addressed a letter to Kinney, inclosing one to the Cogswells, dated the 20th of the same month from Mishwaukie, Illinois.

In the letter to Cogswell, he makes a full statement of the transactions concerning the canal lots; says that he is not able to hold any part of the property, and would like to have some arrangement made by which he could give up his interest in all of it, and be released of his debt to them; and adds that he lives at such a distance from the property that other agents can attend to it at less expense than he can.

In his letter to Kinney he says:

'I inclose a letter upon the subject of the canal lots, and you will see how it stands; but how to manage it without our being together I know not. As I am not able to own the property, and really, in the depressed feeling I am in, am not fit to take care or look after it, I would like them to take all and give up my note, I paying property enough to make them secure. For instance, the property to be all theirs, which is at one-third less than cost now. It will include $2172 of my own property. I will give, besides, the west fractional half of section 19, which ought to go with the east half, now owned by the company, $400. I will also (if they actually ask-it ought not to be required)-give all my school section lots in Chicago, worth $1500 cash now. I feel so much depressed and so unfit to take care of these matters that I will, if the whole matter can be settled, give up this property and have it off my mind, if the whole is asked.'This letter Kinney filed and preserved, as he did other letters of Lee; including letters between the date of the proposition and Lee's death. Lee himself, after lingering in disease and embarrassment for some months, died in November, 1842.

What was done by Cogswell or by Kinney in the way of action upon these two letters of Lee was a chief point in issue. The defendants in the bill, who were in possession of the lot and who claimed it under the deed of the administrator, set up that the letter contained a proposition, and that this proposition had been accepted; that so there had been a contract; that the deed from the administrator had been in pursuance of that contract, and that no conveyance ought to be decreed. The complainants, Lee's heirs-at-law, on the other hand, denied that there was any contract; asserting that the letter of the 26th March was not a definite offer, but only a statement of what he, Lee, would be willing to do if the parties could meet personally and so 'manage' things; and asserting, moreover, that even such a plan as was suggested had never been responded to or accepted.

The evidence on this last point, as it appeared on the one side and on the other, was thus:

In favor of the idea that it had been accepted. Kinney testified that soon after receiving Lee's two letters, he had different conversations with Jonathan Cogswell and his sister, in which they agreed to accept Lee's offer; and that some six or eight weeks after the letter of Lee was written-he thought in the month of May-he wrote him a letter accepting, on behalf of himself and the Cogswells, the offer of Lee, without exacting the school section lots in Chicago; and he further stated that he thought that he received a letter from Lee acknowledging the receipt of this letter of acceptance. He also stated that he had promised Lee to go to Illinois that summer on this business.

Certain facts were relied on as confirming this testimony; as -

i. That Lee had left at his death a deed (found among his papers after that event) signed and acknowledged, but with a blank space where the name of the grantee should be, and that this deed was with another deed; a deed of the partnership lots.

ii. That there was found among Lee's papers a letter from Cogswell, dated October 18th, 1842; a long letter, detailing the pecuniary troubles of the writer, and expressing his desire to realize from the lands in which he had invested with Lee. He speaks of the lands which were conveyed to his sister, mentions the canal lots, and says if the deed has not been recorded that the name of the grantee should be changed, and they should be conveyed to him, and then directs that the deeds be recorded. But there was no specific mention of lot 4, now in controversy.

iii. Letters of Kinney also were found among Lee's papers, urging the conveyance, and recording of deeds for real estate.

The blank, as to the grantee's name, in the deed from Lee for the lot 4, was, as already mentioned, filled up by Lee's administrator, one B. T. Lee. Kinney, it appeared, went, in June, 1843, to Chicago, and had a full settlement with B. T. Lee, administrator of G. W. Lee, of an individual claim which he had against Lee's estate, and also of that of the partnership. In that settlement he received the deed already mentioned, of the lot in controversy, found among Lee's papers, and by his advice and with his knowledge the blanks in the deed were filled with the name of Lois Cogswell, and delivery made by B. T. Lee. These arrangements, Kinney testified, were made with the purpose of carrying out 'the contract,' and that B. T. Lee, the administrator, understood things in that way.

On the other hand, the testimony of Mr. Kinney was given twenty years after the date of the alleged transaction.

No letter of acceptance was produced from any source, nor any alleged copy of one.

A letter thus, from Kinney to Lee, dated July, 1842, was found among Lee's papers:'DEAR FRIEND LEE:

'The last letter I had the pleasure of receiving from you related to the lands in Chicago, &c. Dr. and Miss Cogswell had it for a time, and perhaps the former took it with him, as I am not able to find it at present. ''I will, therefore, defer saying anything in reply until I find the letter. It is, in fact, a difficult matter to say what is best to be done under the circumstances. . . . Your management of the matter was one great inducement to enter into it, and we might almost as well throw the whole away as attempt to manage it ourselves at this distance''. My main object, however, in addressing you at this time is in regard to taxes, which I wish you to attend to, and see paid, on all the property we are jointly interested in.'

That the deed for the partnership property-found after Lee's death among his papers with the deed having the grantee's name in blank, for this canal lot 4, block 53, in controversy-was fully executed and only needed delivery.

As to B. T. Lee, the administrator's, understanding that a contract existed when Kinney went to Chicago, in June, 1843, and had a full settlement with him there, B. T. Lee himself testified that he had never at that time heard of a contract, and that none was spoken of during the settlement. Two full memoranda of agreement, showing the terms of settlement, relating the one to a personal claim of Kinney's against the estate, the other to the joint claim of Cogswell and himself, made no reference to any existing contract.

Mr. Justice MILLER (stating the case) delivered the opinion of the court.

title: Lee v. Dodge


text: Talk:Lee v. Dodge

title: Talk:Lee v. Dodge


text:
Lee v. Dodge/Opinion of the Court

The conveyance of the legal title which is asked for by the bill filed in this suit is claimed on the ground of a contract, alleged to have been made in his lifetime by G. W. Lee; and the only question in the case is as to the truth of this allegation, which is fully denied by the defendants in the court below, who are appellants here.

It is claimed by complainants that the contract was made by letters; Lee proposing the terms in a letter written by him from Kishwaukee, Illinois, which were accepted by a letter written by Kinney, at New York, where he resided. The letter, or rather the two letters, supposed to contain the offer of Lee are produced, and are admitted to be in his handwriting; but the letter of acceptance, if there was one, is not produced, nor any copy of it; and the fact that such a letter was ever written depends upon the testimony of Kinney and certain circumstances supposed to corroborate his statement.

The counsel for the appellants denies that what is written in this letter was intended as an offer which Lee expected the other party to act on definitely; but rather as a suggestion of what he was willing to do if they could get together. The opening expression of the letter certainly does point strongly to a personal interview as essential in the writer's view to a final arrangement. Still the terms offered are so definite, the property which he was to convey, and the consideration which he was to receive, namely, the note in which he had confessed judgment, were all so fully set forth, that we think if an unconditional acceptance in writing can be made out, it constitutes a contract, which should be specifically enforced in a court of chancery.

We have already stated that the proof of this acceptance rests mainly on the testimony of Kinney, who states that he is very confident that some six or eight weeks after the letter of Lee was written-he thinks in the month of May-he wrote him a letter accepting, in behalf of himself and the Cogswells, the offer of Lee, without exacting the school-section lots in Chicago. He further states that he thinks he received a letter from Lee acknowledging the receipt of this letter of acceptance.

Let us look now, for a moment, at certain matters which are urged upon us, strongly confirming this statement of Kinney.

1. The fact which we have already mentioned, that a deed for this lot was left, signed and acknowledged, with a blank space for the name of the grantee, by G. W. Lee among his papers at his death, with another deed of the partnership lots which was fully executed and only needed delivery, is one of them.

It is to be remarked, however, as to the deed for the partnership lots, that Lee had previously conveyed the partnership property whenever requested by the other partners, and letters are in the record from them urging him to do this as to the canal lots. From his embarrassed condition, it was also his moral duty to make this conveyance to save the property, to those who were entitled to it, from the grasp of his individual creditors. This sufficiently explains the existence of that deed. But the fact that the deed for his own lot had no grantee in it, implies that his purpose with regard to it was not the same as with reference to the other. He might have kept such a deed in readiness, if Kinney should come out West, as he had written he would, and should then be willing to accept his proposition and satisfy the judgment against him. Or he may have been expecting a favorable answer from Kinney, and wished to be ready if he received it. At all events, conceding his willingness to make the contract, we do not think that any very strong presumption arises that his proposition had been accepted-which is the point to be established from this paper in the form of a deed, but without a delivery, and with no directions left on either of these points.

2. A letter from Jonathan Cogswell to Lee, found among Lee's papers, dated October 18th, 1842, is much relied on as showing that the contract had been concluded.

The counsel for the appellees assumes that what is there written is written of the lot in controversy. But as we have already seen that the lots which were undoubtedly partnership property were to be conveyed for safety to some other member of the company by Lee, and as there are letters from them urging him to do this, all that Cogswell says in that letter is fully applicable to the partnership lots. At least, it might just as well have been written, and is as easily understood, if no thought had ever been entertained of conveying the lot which belonged exclusively to Lee.

3. Other letters of Kinney urging the conveyance and recording of deeds for real estate are produced, as showing the understanding that Lee was to convey this lot, but the answer is as in the case of the letter of Cogswell, that they do not mention this lot, and all that is said in them is fully explicable on the hypothesis that they refer exclusively to partnership lots.

We do not perceive, then, that these circumstances add much support to the testimony of Kinney. Of this, it is to be remarked, that it is delivered twenty years after the date of the supposed letter of acceptance, that he does not pretend to be precise as to the date of it, within several weeks, and still less is he positive as to its language. He speaks, as we are satisfied, with candor, but with a want of certainty which is commendable, in reference to matters occurring so long ago of which he has no memorandum in writing. He says that some little time after receiving Lee's letters he had conversations, at different times, with Jonathan and Lois Cogswell, in which they agreed to accept Lee's offer, and he feels pretty sure he wrote to that effect to Lee. If we recall the fact, that Lee says he did not see how the matter could be arranged without a personal interview, and connect this with Kinney's statement that he had promised Lee to come out to Illinois that summer on that business, we can see how easily Kinney, having agreed with the Cogswells as to the terms of settlement, and having resolved to go out to Illinois and close it up, may, in recalling the transaction after twenty years, have been so impressed with his conviction that it was all satisfactorily arranged before Lee's death, as to feel confident that he had communicated to Lee the resolution, which had only been arrived at in the minds of himself and the Cogswells.

Many circumstances, not easily reconciled with the existence of such a letter, confirm this view of the matter. No such letter of acceptance was found among the papers of G. W. Lee. The force of this fact is rendered much stronger by the circumstance that among his papers several letters were found, from Kinney and Cogswell, bearing dates between the date of his proposition and that of his death.

Kinney was a lawyer, and knew the necessity of preserving some evidence of his acceptance of the proposition, if it was one on which he ever expected to rely, yet he produces no copy of this letter of acceptance. Nor does he produce the letter from Lee acknowledging the receipt of that letter, although he found carefully filed away the letters in which Lee makes the proposition. These letters contain a full statement of the canal-lots transaction; thus showing that when importance was attached to letters they were preserved. Several other letters of Lee to Kinney are produced, but none recognizing the existence of this contract.

Kinney swears that the arrangements made when he went to Chicago, in June, 1843, and has a settlement with B. T. Lee, the administrator, were made with a view of carrying out the contract, which we are considering, and that B. T. Lee so understood it. B. T. Lee swears that he had never then heard of such a contract, and that no mention was made of it during his negotiation with Kinney. It is fortunate, in this conflict of recollections, that Kinney produces two memorandums of agreement made at the time, embracing the terms of settlements made by him with B. T. Lee, and signed by them, one having reference to his individual claim against Lee's estate, and the other to the claim of himself and the Cogswells. These are full; and a careful examination of them discloses nothing which, by the remotest implication, can be held to refer to an agreement made by Lee in his lifetime. Yet, as Kinney must, as a lawyer, have known that B. T. Lee was largely exceeding his powers as an administrator, nothing would have been more natural than a reference to a contract, which would have supplied this defect of power, if any such contract had been known to exist. Not only is there no allusion to a former agreement, but the one made at this time varies materially from the one set up in this suit; and this variance is to the prejudice of the parties interested in Lee's estate. The superior value of these writings as evidence, over the recollections of Mr. Kinney, after twenty years from the time of the transaction, is apparent to every legal mind.

There is another piece of written testimony to which the same remark is applicable, and which we think is of itself almost conclusive that Kinney is mistaken in his recollection as to a written acceptance of Lee's proposition. It is the letter written by him to Lee, dated July 1st, 1842. [His Honor here quoted the letter on p. 813, beginning 'Dear Friend Lee.'] It is to be remembered that Kinney swears that he thinks it was in May, or early in June of that year, that he wrote to Lee accepting his proposition. And if it was accepted at all, it is reasonable to suppose that it was done within three months from the time offer was made.

The letter referred to in this letter of Kinney, as received from Lee, was undoubtedly the one containing Lee's proposition. The language of Kinney's letter is wholly inconsistent with the idea that Lee's proposition had been accepted. On the contrary, it states an objection to it in the loss of his services, equivalent to throwing away the whole sum invested. Yet this letter was written three months after they has probably received that proposition, and one month after the time when Kinney says it was accepted.

Under all the circumstances, in proof before us, we are compelled to conclude that Kinney labored under a mistake when he testified that the proposition of Lee had been accepted in writing. This fact is a vital one in the case of complainants, and having failed to establish it, they must fail in their suit.

Decree reversed with costs, and the case remanded with directions to enter a decree

DISMISSING THE BILL.

title: Lee v. Dodge/Opinion of the Court


text: Talk:Lee v. Dodge/Opinion of the Court

title: Talk:Lee v. Dodge/Opinion of the Court


text:
Withenbury v. United States

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

Several libels were filed in that court for the condemnation, as prize of war, of large quantities of cotton and other property captured on the interior navigable waters of the United States, or on land adjacent thereto. On motion, these libels were consolidated, and various claims were interposed in the consolidated suit for portions of the property libelled. Among these claims was that of Withenbury & Doyle. They denied the validity of the capture, and insisted on their own title to nine hundred and thirty-five bales of the cotton.

Upon hearing of the cause as to this claim, an order was made dismissing the claim, with costs, for which execution was ordered.

From this decree the appeal now pending was taken, and a motion for dismissal was now made, upon the ground that the decree was not final, and therefore was not within the jurisdiction of this court.

A motion of a similar sort was made and argued at the same time in another and similar appeal, Le More v. United States.

Messrs. Ashton, Assistant Attorney-General, and Cushing, in support of the motion:

No disposition has yet been made of the libel, or of the cotton or its proceeds. The suit still remains pending in the District Court for the Southern District of Illinois. In Humiston v. Stainthorp, this court, on a question of what is a final decree, assumed as of course the doctrine of The Palmyra, a case in admiralty, and where Marshell, C. J., says:

title: Withenbury v. United States


text: Talk:Withenbury v. United States

title: Talk:Withenbury v. United States


text:
Withenbury v. United States/Opinion of the Court

'The appeal is not well taken. The decree of the Circuit Court was not final in the sense of the act of Congress. The damages remain undisposed of, and an appeal may still lie upon that part of the decree awarding damages. The whole cause is not, therefore, finally determined in the Circuit Court, and we are of opinion that the cause cannot be divided so as to bring up successively distinct parts of it.'

The inconvenience of admitting, in contradiction to the decision of the court in the case of The Palmyra, that a cause in admiralty can be divided so as to bring up successively distinct parts of it, is illustrated in the present case by the fact that not only have Withenbury & Doyle taken an appeal on their claim, leaving the cotton and the libel against it in the court below, undisposed of, but that other parties, namely, Le More, claiming a part of the same cotton on the same libel, but adversely to Withenbury & Doyle, have also taken an appeal, and entered it there. Thus we have two adversary sets of claimants, each splitting off from the main case, and from one another, and coming here with their appeals, while the main case still remains in the inferior court. Can appeals be thus evolved indefinitely from the body of one case? We think not; but that on rejecting all the claims against this parcel of cotton, the court below should have proceeded to determine the question of prize, and after that to decide what to do with the proceeds of the cotton, and then to enter a final decree. Upon such a decree any or all parties might have appealed in due form.

This is a definite sentence in admiralty; which is a final decree. It dismisses the claimant from the case. He has no further voice in its conduct. It is final as to him and his property. The evil impending cannot be repaired by an appeal from a long-deferred definite or final decree of the whole case, or the disposition of all the claims filed in it. Execution of this sentence must go forth in the absence of an appeal. The claimants then have no other remedy than this appeal.

The CHIEF JUSTICE delivered the opinion of the court.

It appears from the record that the decree disposed of the whole matter in controversy upon the claim of Withenbury & Doyle. It was final as to them and their rights, and it was final also so far as the claimants and their rights are concerned as to the United States. It left nothing to be litigated between these parties. It awarded execution in favor of the libellants against the claimants.

We think that such a decree in a prize cause must be regarded as final within the meaning of the Judiciary Acts, and that we have jurisdiction of the appeal from it.

The appeals in The Bermuda case, and in the case of the Alexander cotton, were of the same character with that now before us. In neither of these cases had all matters arising upon the libel and the claims been finally disposed of. In the first the appeal was by claimants of part of the property libelled, whose claims has been dismissed and the property claimed by them condemned. In the other the appeal was by the United States from a decree of restitution in favor of a claimant of part of the property libelled, in the same consolidated cause from a decree in which, against another claimant, the appeal which we are now asked to dismiss was taken.

It is true, that in the cases just referred to no question of jurisdiction was made at the bar, but it existed necessarily in each cause, and was practically determined in favor of the jurisdiction, and, as we still think, rightly determined.

The motion to dismiss is therefore denied.

The motion to dismiss the appeal in Le More v. United States depends on like facts and the same principles with that just decided, and must also be denied.

Mr. Justice CILFFORD dissented.


text: Talk:Withenbury v. United States/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Love, James (1722-1774)


text:
Seymour v. Freer (72 U.S. 822)

APPEAL from the Circuit Court for Northern Illinois.

This was a motion to dismiss an appeal because the bond for the prosecution of the appeal was not filed within ten days after the decree.

It appeared that the decree in the Circuit Court was drawn and placed in the lands of the clerk on the 15th of November, 1866, upon an understanding by the counsel, sanctioned by the court, that it was to be entered, when approved by the court, as of that day. It was retained for several days by the judge, who required a stipulation from counsel in respect to the receiver appointed by the decree, and was then returned to the clerk, and entered on the 20th as of the 15th. The bond was filed on the 28th.

The CHIEF JUSTICE delivered the opinion of the court.

title: Seymour v. Freer (72 U.S. 822)


text: Dictionary of National Biography, 1885-1900/Love, James Frederick


text: Talk:Seymour v. Freer (72 U.S. 822)

title: Talk:Seymour v. Freer (72 U.S. 822)


text: Dictionary of National Biography, 1885-1900/Love, John (1695-1750)


text: Dictionary of National Biography, 1885-1900/Love, John (1757-1825)


text:
Seymour v. Freer (72 U.S. 822)/Opinion of the Court

We think that for the purposes of appeal this decree must be regarded as having been passed on the 20th, and that the bond was filed in time.

But it this were otherwise, and through mistake or accident no bond, or a defective bond, had been filed, this court would not dismiss the appeal, except on failure to comply with an order to give the proper security within such reasonable time as it might prescribe. What is essential to an appeal is allowance, citation to the appellees, or equivalent notice or waiver, and the bringing up of the record at the next term of this court. Security for prosecution should be taken by the judge on signing the citation; but if this duty be omitted or defectively performed, a remedy can be applied here on motion.

In the present case a bond, admitted to be sufficient for costs of prosecution, whether given in time to make appeal operate as a supersedeas or not, was filed in the court below before removal to this court.

The motion to dismiss the appeal must therefore be

DENIED.


text: Dictionary of National Biography, 1885-1900/Love, Nicholas


text: Talk:Seymour v. Freer (72 U.S. 822)/Opinion of the Court


text:
Garrison v. Cass County

MOTION to dismiss an appeal from Supreme Court of the Territory of Nebraska.

The CHIEF JUSTICE delivered the opinion of the court.

title: Garrison v. Cass County


text: Talk:Garrison v. Cass County

title: Talk:Garrison v. Cass County


text:
Garrison v. Cass County/Opinion of the Court

The decree in this case was rendered on the 13th June, 1861. No appeal was prayed or allowed until the June Term, 1865. At that term, on motion of the defendants below, an appeal was allowed nunc pro turn, as of 13th June, 1861.

There is nothing in the record which warranted the making of this order; nor, if it could have been lawfully made, would it avail the defendant, for there was no citation to the appellees, and the record was not brought up at the next term of this court.

At most, it can only be regarded as an allowance of an appeal at the June Term, 1865, and no citation appears to have been issued since to the appellees, nor was there any equivalent notice, nor has there been any waiver.

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Garrison v. Cass County/Opinion of the Court


text:
Alviso v. United States (72 U.S. 824)

On motion to dismiss an appeal from the District Court for Northern California, the CHIEF JUSTICE stated the case and gave the opinion of the court.

title: Alviso v. United States (72 U.S. 824)


text: Talk:Alviso v. United States (72 U.S. 824)


text:
Alviso v. United States (72 U.S. 824)/Opinion of the Court

The final decree in the District Court was rendered on the 8th September, 1863, and an appeal was allowed, on motion of the claimant, on the 18th November, 1863. Upon this appeal no action was taken by the appellants. On the 23d February, 1864, an appeal was again allowed, and the record was brought to this court and filed November 11, 1864.

This was in time, but no citation was issued to the adverse party, and there is nothing to show any waiver; and a citation, with due return, or waiver by general appearance or otherwise, is indispensable to jurisdiction an appeal.

DISMISSED.


text: Talk:Alviso v. United States (72 U.S. 824)/Opinion of the Court


text:
Higueras v. United States

APPEAL from the District Court for Northern California.

Mr. Bradley, for the appellants; Mr. Willes, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Higueras v. United States


text: Talk:Higueras v. United States

title: Talk:Higueras v. United States


text:
Higueras v. United States/Opinion of the Court

This is an appeal from a decree of the District Court of the United States for the Northern District of Colifornia, confirming the survey of a private land claim. Appeals in such cases are authorized by the fifth section of the act of the fourteenth of June, 1860, if applied for within six months after the date of the decree, and it is under that special provision that the present controversy is now before the court.

I. 1. Original claimant acquired a possessory right to the tract of land situate in Santa Clara County, California, and called Tularcitos, on the fourth of October, 1821, by virtue of a decree of concession of that date made to him by the governor of the Territory. Directions of the decree of concession were that the applicant for the tract should be put in possession of the same by the commissioner of San Jose, in whose jurisdiction the land was situated. Measurements were to be made and monuments fixed on the four sides of the tract, and the officer designated to perform the duty was to make return of his doings to the government. Pursuant to those directions the commissioner attended to the duty assigned to him and made his return, in which he states that he went upon the tract and gave possession to the donee, designating the number of varas allowed on each of the four sides of the concession.

Claim to a portion of the tract it seems was subsequently made by an adjoining proprietor, and on the seventeenth day of October, 1835, the original claimant presented to the governor of the Territory a second petition, in which he requested that the boundaries of the concession to him might be enlarged, and that his title to the former concession might be confirmed. He based the claim in the second application chiefly upon two grounds: 1. That he had been in the occupation of the tract for more than twelve years. 2. That a part of the tract embraced in the decree of concession had been granted to another person.

2. Second decree of concession granted the augmentation, as requested, and directed that the same should be considered as annexed to the former concession. Annexed to the petition was a diseno describing the entire tract, which appears to have been made in strict conformity to the colonization laws. Remark should be made that the first concession did not profess to grant anything more than a possessory right, and the second espediente is without the formal title, but there can be no doubt that the several documents are sufficient to give to the donee an inchoate right to the tract, within the meaning of the treaty of cession and the act of Congress subsequently passed to carry the provisions of the treaty into effect.

Such also were the views of the land commissioners appointed under that act of Congress, as appears by their decree confirming the claim.

Description of the tract as given in the decree of confirmation is that it is situated in Santa Clara County and is the same land formerly occupied by Jose Higuera, now deceased, and is known by the name of Los Tularcitos. Boundaries given in the decree are as follows: Beginning at the back side of the principal house on said rancho, standing at the foot of the hill, and running thence northwardly to a lone tree on the top of the sierra (which tree is known as a landmark), thence east along the sierra to the line of the land known as the rancho of Jose Maria Alviso, thence southerly along the west line of said Alviso's rancho till it intersects the Arroyo de la Penetencia, thence up said arroyo to an estuary, and from that point to the place of beginning.

3. Appeal was duly taken from that decree by the United States, but the appeal, on the motion of the district attorney, was subsequently dismissed, and on his motion also it was ordered, adjudged, and decreed that the claimants have leave to proceed under the decree as a final decree in their favor. No appeal was subsequently taken, and the decree, therefore, became and is the final decree in the case. Final decrees in such cases, if regularly made and duly entered in the record, are conclusive between the United States and the claimants, unless an appeal is seasonably taken from the decree according to law.

4. Confirmation alone, however, did not, under that act, confer upon the claimant a right to a patent, but it was made the duty of the surveyor-general to cause all private land claims finally confirmed to be accurately surveyed, and to furnish plats of the same; and the provision was that a patent should issue to the claimant upon his presenting to the General Land Office an authentic certificate of such confirmation and a plat or survey of the land, duly certified and approved by the surveyor-general.

Such was the legal effect of a final confirmation of a private land claim under the act of Congress first passed to carry the treaty of cession into effect, and such also was the legal course of proceeding under that act to procure a patent.

5. But authority was conferred upon the District Courts for the Northern and Southern Districts of California, under the second section of the subsequent act, to which reference has been made, upon the application of any party interested, to make an order requiring any survey of a private land claim, within their respective districts, to be returned into such court for examination and adjudication; and if, upon the hearing of the allegations and proofs, the court should be of opinion that the survey and location were erroneous, the court, in that event, was authorized to set it aside and annul the same, or to correct and modify it. Proofs are to be taken and the parties have a right to be heard, and thereupon the court is required 'to render judgment thereon.'

Survey of the tract in this case was made by the surveyor-general, and on the seventh day of June, 1859, the court, on motion of the claimants, made an order directing the plat of the survey to be returned into court. Whereupon the claimants filed three exceptions to the survey, which in substance and effect are as follows: 1. That the survey was not made in accordance with the decree of confirmation. 2. That according to the decree of confirmation and the evidence in the case, the northern and southern lines of the survey should be extended easterly to the sierra or main range of mountains, so as to include the tract of country known as the Valley of the Calaveras. 3. That the northern line, extending from the estuary to the Calera Creek, should be a straight line instead of an angle, as represented on the plat. Testimony was taken, but before the hearing the claimants filed an additional exception, describing the tract of country mentioned in the second exception, and claiming that the lines of the survey should be extended as therein specified, so as to embrace that whole tract. Additional testimony was then taken and the parties were heard, and after the hearing the several exceptions were overruled, and a decree entered that the 'survey be, and the same is hereby confirmed.' Claimants asked for a rehearing, which was granted, but the court refused to modify the decree, and ordered that it stand as the final decree in the cause. Present appeal is from that decree, and the questions for decision are those presented in the exceptions to the survey and location, as the same were filed by the claimants.

II. 1. Appellants insist, as a primary proposition, that the boundaries of the tract, as given in the decree, are so indefinite and incongruous that the decree cannot be carried into effect, and consequently that they have a right in this proceeding to prove the extent of the tract as formerly occupied by the original claimant, so that the court may determine the true location and correct the errors in the decree of confirmation. But no such authority is to be found in the act conferring jurisdiction over the surveys of private land claims, nor in any other act of Congress upon that subject. Survey is required of all private land claims finally confirmed. Such claims are required to be accurately surveyed, which is equivalent to a requirement that the survey, where the decree of confirmation is by metes and bounds, shall conform to the decree.

Private land claims, such as are recognized in that act, are those which arise by virtue of a right or title derived from the Spanish or Mexican government. Every person claiming such lands in California was required to present his claim to the land commissioners for adjudication, and the provision was that all land the claims to which should be finally decided to be invalid, and all lands the claims to which should not have been presented to the commissioners within two years from the date of the act, should be decreed, held, and considered as part of the public domain.

2. Confirmed claims only were required under that act to be surveyed, and it is only the surveys of such claims that the District Court, under the second section of the subsequent act, is authorized to order into court for examination and adjudication. Confirmation must precede the survey which is made subject to such an order, and if the decree of confirmation is so indefinite and incongruous that it cannot be executed, then it is void and of no effect, and the claim to the land stands upon the same footing in legal contemplation as a claim which was never presented to the commissioners for adjudication. Nothing can be plainer than the proposition that a decree of confirmation under that act, which is in itself void, cannot be the proper foundation of a legal survey and location of the claim; and if not then, it is equally clear that the survey of the claim, although made by the surveyor-general, and ordered into the District Court, cannot confer any jurisdiction upon the court to determine the boundaries of the claim. Assume, therefore, that the proposition under consideration is correct, and it necessarily follows that the claimants have no legal right whatever to any portion of the tract.

3. Jurisdiction over the 'right or title' of the claimant is conferred upon the commissioners, under the act entitled 'An act to ascertain and settle private land claims,' but the jurisdiction over the surveys of the same, after the plat is certified and approved by the surveyor-general, is conferred upon the District Court under the subsequent act, and the two things are wholly distinct and cannot be blended, nor can the one be substituted for the other.

4. But the court does not, by any means, intend to be understood as acceding to the proposition that the decree of confirmation in this case is either void or voidable. On the contrary, it is clear, we think, that the decree, when properly understood, is not only free from any question as to its validity, but is also of a character to secure to the claimants all their right and title in the premises.

5. Concessions or grants of land by Mexican governors were of three kinds, and in some respects the rules applicable to their construction are widely different. They were concessions or grants by specific boundaries, where, of course, the donee is entitled to the entire tract or concession, or grants by quantity, as of one or more leagues of land situate at some designated place, or within a larger tract described by what are called out-boundaries, where the donee is entitled to the quantity specified and no more, or grants or concessions of a certain place or rancho by some particular name, either with or without specific boundaries, where the donee is entitled to the tract according to the boundaries, if boundaries are given, and if not, according to the extent and limits of the tract or rancho as shown by the proofs of settlement and possession.

Confessedly, the concession in this case, as originally made, was of the latter class, but the questions presented for decision under the exceptions to the survey have respect to the decree of confirmation, and not to the concession or concessions as made by the governor.

III. 1. The decree of confirmation gives the boundaries of the claim, and as neither of the parties appealed from it, they are not at liberty to question its correctness or ask for any modification of its terms. Construction of the decree must be governed by the ordinary rules of the common law, as it is the decree of a Federal court sitting in a State where the common law prevails. Most or all of the courses given in the decree are undoubtedly erroneous; but there is very little difficulty in ascertaining the cause of the error, and still less in the conclusion that the errors in that behalf ought not to control the questions under consideration, nor be suffered to affect or prejudice the rights of either party. Unlike what is usually to be seen in Mexican espedientes, it appears in this case that two of the disenos or maps of the tract exhibited in the espedientes, contain on their face a delineation, as on a card, of the four cardinal and other principal points of the compass. Referring to the delineation, it will be seen that north, as there delineated, is in the place of northwest, and that the corresponding error occurs throughout the delineation. Make the correction suggested, and the representation of the points of compass would be substantially correct in all respects; or, in other words, read north for northwest and northeast for north, and there would be little or no incongruity between the monuments given in the decree and the courses as therein laid down. Mistakes of a like character were made by the Mexican witnesses in their description of the tract and its boundaries. They knew the monuments designated as marking the boundaries of the donee's possession, but they do not profess to have had any positive knowledge as to the true course from one monument to another. Language of the decree is so nearly the same as that employed by one or more of the witnesses as to justify the conclusion that the commissioners, in framing the decree, borrowed the terms of the description from the language employed by the witnesses.

2. Appellants do not deny that the place of beginning is correct, nor do they controvert the fact that the first course is from the back side of the principal house to a lone tree on the top of the sierra, which is known as a landmark. The course, as stated by the witnesses and given in the decree, is northwardly, but the termini of the line being given and the respective monuments marking the line admitted, it is clear that the monuments must govern. Measurements of distances and the direction of lines in reference to the points of the compass mentioned in a deed, may be made a part of the description of the premises intended to be granted, and in some cases, where the lines are so short as evidently to be susceptible of entire accuracy in their measurement, and are defined in such a manner as to indicate an exercise of care in describing the premises, such a description is regarded with great confidence as a means of ascertaining what is intended to be conveyed. But ordinarily surveys are so loosely made, and so liable to be inaccurate, especially when made in rough or uneven land or forests, that the courses and distances given in the instrument are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and boundaries referred to as identifying the land. Such monuments may be either natural or artificial objects, such as rivers, streams, springs, stakes, marked trees, fences, or buildings.

3. Second line mentioned in the decree is from the lone tree along the sierra to the line of the land known as the rancho of Jose Maria Alviso, who was the southern colindante of the original claimant. Three objections are assigned by the claimants to the second line in the decree as showing that it is unreliable and cannot be executed. First objection is that the course from the lone tree along the sierra, as described in the decree, is east instead of southeast as it should be, if the views of the appellees are correct. Beyond doubt, the fact is as suggested, but the objection is entitled to no weight, for the same reasons as those assigned in respect to the error in the described course of the first line. Both of the monuments, to wit: the lone tree and the sierra, are fully proved, and the appellants are obliged to concede that the lone tree and sierra of the survey are the same as those of the decree. They do not attack the survey as a departure from the decree, but insist that the decree is so indefinite and incongruous that it cannot be executed, and that the survey is contrary to the actual location of the land granted to the donee, as shown by the evidence in the case. Impliedly the proposition admits that if the decree can be executed the appellees must prevail, and so is the course of the argument.

Appellants contend, in the next place, that the second line, that is, the line from the lone tree along the sierra, is unreliable, because they insist that the evidence shows that the lone tree is not a corner boundary. Present inquiry, however, is how it was viewed by the commissioners when they framed the decree, and not what they might or ought to have decided, if the evidence since taken had been before them at that time. Looking at the language of the decree it is beyond a doubt that the commissioners, in framing it, regarded the lone tree as a corner boundary, that is, as the termination of the first line and as the beginning of the second; so that the second objection of the appellants is unfounded in fact.

Third objection is that the second line, if run from the lone tree along the sierra, would not intersect the line of the rancho mentioned in the decree. But the objection is purely a technical one, and as such is entitled to no weight. Alviso's land did not, it is true, extend quite to the sierra, or if it did his northern line, as exhibited on the disenos in the record, was not so delineated. Protract the line in the same direction to the sierra, and the whole foundation of the objection is gone. The intention of the decree is obvious, and there can be no doubt that the surveyor-general was right in regarding that supposed defect as supplied by necessary implication from the language of the decree. He terminated the second line at the point where the northern line of the other rancho, if protracted as the commissioners assumed, would strike the sierra, and in adopting that view, it is clear that he carried into effect the intention of the commissioners.

4. Residue of the decree is without objection, except that the third line has the corresponding error in the course of the line. Substance of the objection is that the course is described as southerly instead of westwardly, as assumed by the appellants, and as running along the west line of the other rancho instead of along the northern line of the same, as it should have been if their theory is correct. Obviously, both of these mistakes are of the same character as those previously considered in the description of the first and second lines, and they may be answered in the same way, as the evidence is full to the point that the location of the rancho referred to was well known. Evidence shows that the proprietor of that rancho and the original claimant at one time had a controversy in respect to that line, but that the same was satisfactorily adjusted under Mexican rule before the second concession was made to the donee. When reference, therefore, was made to that rancho, it was to one well known, and the termination of the line was at the Arroyo de la Penetencia, which was equally well known and established.

5. Remaining portion of the description as given in the decree is as follows: Thence up the arroyo to an estuary, and from that point to the place of beginning. Correct the description of the courses of the lines, or strike out that portion of the description, and the boundaries of the tract are complete and specific, and the survey and the decree describe the same tract of land. Unless the views of the claimants are misunderstood, they do not deny that fact; and if they do, it is a sufficient answer to the denial, in view of the explanations already given, to say that in the judgment of this court the just and legal conclusion is the other way.

6. Having come to the conclusion that the rights of the appellants are fully defined in the decree of the commissioners, and that the survey in question corresponds with that decree, we do not think it necessary to enter into any extended examination of the evidence as to the extent of the tract embraced in the original concessions as presented to the land commissioners. All those matters were concluded by the decree, and the only question now is whether the decree of the commissioners is fairly carried into effect by the survey and decree of the District Court, and our conclusion upon that question is that the complaints of the appellants are without any foundation. While such is our conclusion, we still think it proper to say that we have looked into the evidence in the case with care, and have no hesitation in saying that if the whole controversy was open, as is supposed by the claimants, we should be constrained to concur in the views of the district judge, that the great weight of the evidence shows that the survey describes the true location and boundaries of the tract.

DECREE AFFIRMED.


text: Talk:Higueras v. United States/Opinion of the Court


text:
United States v. Macdonald

THE fifth section of the act of March 3d, 1841, enacts that in addition to the account required to be rendered by every collector, every collector shall render a quarter-yearly account to the Secretary of the Treasury, of all sums of money received or collected—

'For rent and storage of goods, wares, or merchandise which may be stored in the public storehouses, and for which a rent is paid beyond the rents paid by the collector; and if from such accounting it shall appear that the money so received in any one year by any collector, on account and for rents and storage as aforesaid, shall in the aggregate exceed the sum of two thousand dollars, such excess shall be paid into the Treasury of the United States, as part and parcel of the public money; and no such collector shall, on any pretence whatevery, hereafter receive, hold, or retain for himself, in the aggregate, more than six thousand dollars per year, including all commissions for duties, and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law.'

With this act in force, the United States brought suit in the Circuit Court for the district of Maine, on his official bond, against Macdonald, collector of customs at Portland, and his sureties, for the recovery of $6281 reported to be due the United States on the adjustment of his accounts, and which he had refused to pay into the treasury. The rejoinder alleged that Macdonald received, accounted for quarter-yearly, and retained this sum, 'by virtue of his office, for storage of merchandise in bonded warehouses from January 20th, 1858, to April 18th, 1861, inclusive, as he lawfully might do,' not more than two thousand dollars in any one year. The United States demurred, and issue was joined.

The question raised by the pleadings was touching the true construction and effect of the above-quoted fifth section of the act of March 3d, 1841; that is to say, whether, under it, a collector of customs might retain, as compensation or emolument, any portion of the moneys which had accrued from the storing or custody of imported merchandise in private bonded warehouses?

The court below considered the rejoinder good, and gave judgment for the defendants. The case was now here on error to that judgment: the question here being the same as it was below, the true meaning of the section.

Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the United States, plaintiff in error; Mr. W. P. Fessenden for the collector, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: United States v. Macdonald


text: Talk:United States v. Macdonald

title: Talk:United States v. Macdonald