text:
Lindsey. v. Hawes./Opinion of the Court

This is an appeal from a decree of the Circuit Court for the Northern District of Illinois, in which the appellants here were complainants there.

The subject of the litigation is the legal title to the southwest part of the northeast fractional quarter of section No. 36, in township No. 18, of range No. 2, west, of the fourth principal meridian, in the county of Rock Island, Illinois. The course of the Mississippi river at this point is almost due west, and that portion of its waters which flows south of the island of Rock Island, divides the northeast quarter of section 36 into two parts, one of which, the smaller, is south of the stream, and the other constitutes a portion of the Island.

The section was surveyed in the year 1833 by Bennett, the Government Surveyor, and the survey duly filed in the proper office. The meanders of the Mississippi river, the quarter section posts, and the area of the fractional quarters, were all given by the survey. It appeared by it, that the south line of the quarter section impinged upon the river at a point near the centre of the line, and thus divided that part of the quarter which was south of the river into two separate fractions. The computation of this survey gave the contents of the east fraction at 1 87/100 acres, and of the west fraction at 5 17/100 acres. It is this latter parcel which is in contest. In April, 1839, Thomas Lindsey made application to the Receiver and Register of the land office at Galena to purchase the land, claiming a right of pre-emption under the Act of 1838 by reason of cultivation and actual residence thereon, and having established his claim to the satisfaction of those officers, he received from them on the 3d day of June, 1839, the proper certificate stating the receipt of the purchase-money, and that, on its presentation to the Commissioner of the General Land Office, he would be entitled to a patent. Shortly after receiving this certificate, Thomas Lindsey removed with his family, across the river into Iowa, and died on the 14th September of the same year, a little more than three months after its date. The present plaintiffs are his heirs, and were all, at the time of his death, either minors or femes covert. except James A. Lindsey. No patent ever issued to Thomas Lindsey or his heirs on this entry.

In 1845 David Hawes claimed a pre-emption right under the Act of 1841 for the same fractional southwest part of the northeast quarter of section 36, and in December received the certificate of the Register and Receiver that he had purchased and entered it, and on March 1st, 1848, received from the Government a patent.

The object of the present suit is to compel from said David Hawes and the other defendants, who are his grantees, a conveyance to plaintiffs of the legal title thus obtained by Hawes from the Government.

As Hawes took his patent from the United States with full knowledge of the certificate previously issued to Lindsey, it is quite clear that upon the facts above stated, without more, the complainants would be entitled to the relief prayed for in their bill. But the defendant Hawes, who alone has answered, sets up other facts upon which he relies as a full defence to the claim of the plaintiffs. There are in the record the depositions of some forty witnesses, besides letters and other documentary evidence, all of which have received the careful attention of the Court; although it will be found that the case must be decided upon a few facts about the truth of which there is but little conflict. These will be considered as we progress.

On the 9th August, 1845, James Shields, Commissioner of the Land Office, set aside the entry of Lindsey, ordered his certificate to be cancelled, and directed the Register and Receiver to hear proof of the right of David Hawes, and to adjudicate his claim.

They accordingly heard his proof, and gave him the certificate, on which he afterwards obtained his patent as before recited. It is claimed by the counsel of Hawes that this action of the land officers, including that of the Commissioner, was a conclusive and final adjudication of the matters now set up in plaintiffs' bill, and that the Courts of Law cannot go behind these proceedings to correct any injustice which may have been done to plaintiffs.

The proposition as thus broadly stated, and as necessarily so stated by defendant's counsel to avail him in this case, cannot be conceded. It appears from the evidence before us, that the ground on which the Commissioner set aside the entry of Lindsey, was, that there had been a mistake in the survey made by Bennett in 1833, and that by another survey made by order of the Commissioner in 1844, it was ascertained that the house in which Lindsey resided when he made his claim in 1839, was not on the land for which he received his certificate of entry from the Receiver and Register.

The order for this new survey emanated from the Commissioner of the Land Office June 1st, 1844, and the survey was actually made in the autumn of that year, five years after Lindsey's entry, and five years also after his death, and there is no proof whatever that any of his heirs had notice of this survey, or of any intention on the part of the Commissioner to set aside Lindsey's entry; but the whole proceeding was ex parte. It is true that subsequently, when the claim of David Hawes to a right to enter this land came before the Register and Receiver, James A. Lindsey seems to have had some kind of notice; but this was given him in regard to an attempt on his part to enter this land for himself, on a claim of improvement made by himself, having, as is clearly shown, no relation whatever to the right established by his father, Thomas Lindsey. Nor did the other heirs of Thomas Lindsey have any notice of the proceedings by which David Hawes established his claim before the Register and Receiver. These heirs were not in any sense parties, to any of the proceedings, by which the title to the land which their ancestor had bought of the Government, was vested in David Hawes, and their claim annulled.

Under these circumstances we have no hesitation in holding that the action of the officers of the land office was not conclusive upon their rights, and that a Court of Equity may inquire into the proceedings by which the title was vested in Hawes, and afford relief if a proper cause for it is shown to exist. That this is the settled doctrine of this Court, a reference to a few of its decisions will show.

In the case of Cunningham vs. Ashley et al., (14 Howard, 377), Cunningham appeared before the Receiver and Register, and claimed the right under the pre-emption laws, to enter the land which was the subject of controversy. These officers decided that he had no right to do so, and rejected his claim. He again and repeatedly presented his claim, and tendered the price of the land. His claim received the consideration of the Commissioner of the Land Office, of the Attorney-General, and of the Secretary of the Treasury, and was finally rejected. The defendants were permitted to enter the land, and receive from the Government patents for it. Justice McLean, in delivering the opinion of the Court, says, that this final decision of the Officers of the Department was the result of twenty years of controversy; and speaking in reference to the plaintiff's rights, he says: 'They were paramount to those acquired under the new location. Those rights were founded on the settlement and improvement in 1821, and on the acts done subsequently in the prosecution of his claim. Having done everything which was in his power to do, the law requires nothing more.' Again: 'So far as the new entries interfered with the right of complainants, they were void.' 'The officers of the Government are the agents of the law. They cannot act beyond its provisions, nor make compromises not sanctioned by it. The Court decreed that the defendants should convey to Cunningham who had the paramount equity. In this case, which had been long contested, and had received the consideration of the Receiver, Register, Commissioner, Attorney-General, and Secretary of the Treasury, all of whom had concurred in rejecting plaintiff's claim, he had never received any certificate nor actually paid any money, yet the Court held that it would look into the equities of the case and set aside the acts of all these officers, because they had erred, to use the language of the Court, both as to the law and the facts to the prejudice of complainant. In Barnard's Heirs vs. Ashley's Heirs, (18 How., 43), this Court again decided that it would inquire into the facts of a disputed entry, notwithstanding the decision of the Register and Receiver.

But the clearest statement of the rule established by this Court on this subject, is to be found in the case of Garland vs. Wynn, (20 How., 8). Wynn's entry, which was the elder, had been set aside, and the money refunded and a patent certificate awarded to Hemphill, who assigned to Garland, to whom the patent issued. Wynn brought his suit in equity to compel from Garland the conveyance of the legal title, on the ground that these proceedings were illegal, and that he had the equitable right. Garland insisted that the Circuit Court had no authority or jurisdiction to set aside or correct the decision of the Register and Receiver, and that their adjudication was conclusive. Mr. Justice Catron, in delivering the opinion of the Court, says: 'The general rule is that where several parties set up conflicting claims to property, with which a special tribunal may deal., as between one party and Government, regardless of the rights of others, the latter may come into the ordinary Courts of Justice and litigate the conflicting claims. Such was the case of Comegys vs. Vasse, (1 Peters, 212), and the case before us belongs to the same class of ex parte proceedings. Nor do the regulations of the Commissioner of the General Land Office, whereby a party may be heard to prove his better claim to enter, oust the jurisdiction of the Courts of Justice. We announce this to be the settled doctrine of this Court.' In Lyttle al. vs. State of Arkansas et al., (22 How., 192), the same member of the Court, delivering its opinion, says: 'Another preliminary question is presented on this record, namely, whether the adjudication of the Register and Receiver which authorized Cloy's heirs to enter the land is subject to revision in Courts of Justice, on proof showing that the entry was obtained by fraud, and the imposition of false testimoney on those officers as to settlement and cultivation. We deem this question too well settled in the affirmative for discussion.'

We are not now disposed to question the soundness of these decisions, and they clearly dispose of the objection raised by defendants on this branch of the case.

We now proceed to inquire into the grounds upon which the entry of Thomas Lindsey was set aside, and the application of David Hawes to enter the same land was allowed. It appears that some five years after Lindsey's entry was made, upon the suggestion of Silas Reed, that there was an error in Bennett's survey of this quarter, the Commissioner ordered a new survey to be made of that section. This survey was made for the Government by George B. Sargent in the fall of 1844. It differed from the original survey in two particulars, namely, that the southwest fractional quarter was found to contain 13 23/100 acres, instead of 5 7/100, and the south line of the quarter section was located so far north, as to leave the house in which Lindsey resided, when he made his entry, entirely south of the quarter.

The Act of June 22, 1838, under which Lindsey claimed his right of preemption and made his entry, provides, 'That every actual settler of the public lands, being the head of a family, over twenty-one years of age, who was in possession, and a housekeeper, by personal residence thereon at the time of the passage of this act, and for four months next preceding, shall be entitled to all the benefits and privileges of an act entitled an act to grant pre-emption rights to settlers on public lands.' It is shown by the letter of James Shields, Commissioner of the General Land Office, dated August 9th, 1845, to the Register and Receiver at Dixon, that Lindsey's entry was set aside by him because, by the re-survey, Lindsey's house was not on the fractional quarter in controversy. We are not prepared to admit, that if the second survey be the correct and proper subdivision of that section into quarters and fractions of quarters, and that by this survey, (though otherwise by the former) the house of Lindsey was found not to be in the fraction pre-empted by him, the Commissioner could, for this reason alone, set aside, in this summary manner, the sale of the land made by the Government to Lindsay. It is to be remembered that the original survey of Bennett, was the survey of the Government; that it was made in 1833; that the maps, plats, certificates, and field notes were all filed in the proper office; the survey approved, and that for eleven years, the Government had acted upon and recognized it as valid and correct, and above all had sold the land to Lindsey by this its own survey, received the purchase money, and given him a patent certificate, five years before any suggestion was made of this error. The money thus received by the Government has never been returned, nor do we think it would vary the rights of the parties if it had been actually tendered to him or his heirs. We are of opinion, under these circumstances, that so far as the location of the lines of that quarter section, affect the question of the precise locality of Lindsey's residence, as bearing on his right to enter that fraction as a pre-emption, the Government was bound by the original survey of Bennett.

We do not here deny the right of the Government which has sold land by the acre at a fixed price, to make a new survey before it parts with the title, and if there is more land than was paid for, to require the deficiency to be paid before it issues a patent.

On that subject we decide nothing, because it is not necessary in this case. Lindsey's heirs were never notified of the additional number of acres found to be in the fraction, nor were they required, or permitted to pay for this increase.

The language of the Act of 1838, already quoted, certainly required of Lindsey that he should have possession, by personal residence thereon, of the land which he entered, and if he had not such residence, or rather such possession, the Commissioner was justified in vacating the entry. But this fact must be determined on the basis of Bennett's survey.

On this point a few facts found among the mass of testimony in the record, about which there is scarcely a dispute, will enable us to form a just conclusion.

The east and west lines which divide a section into north and south quarter sections, are not usually run out and marked by the Government surveyors; but instead of this, as they run the north and south lines, they set up on these lines, what they call the quarter section posts-that is, they mark the points where this line should begin and end. When Lindsey was about to make his pre-emption claim, in order to ascertain whether he resided on this fraction, he procured the County Surveyor of Rock Island County to come and run this quarter section line. Several of the witnesses who were present when this survey was made have testified in the case, and C. H. Stoddard, a practical surveyor of intelligence and candor, as shown by his testimony, also made a survey from Bennett's field notes since this suit was instituted. Some of the persons present when the survey was made by Baxter, the Surveyor of Rock Island County, looked through the compass and observed where the line struck Lindsey's house, and a notch was made on his stone chimney where the line was seen to touch it, which was there when the depositions were taken in this suit, and was identified by witnesses who saw it made. The fair result of all the testimony on this point is, that the house in which Lindsey resided was directly on this line, which would intersect the house so as to throw perhaps the larger part on the other quarter, and a part something less than half, into this quarter.

It is proved that he had another building on this fraction wholly, which is sometimes spoken of as his stable, and sometimes as a blacksmith shop, in which he worked at that trade. It is also shown that the ground cultivated by him was exclusively on this fraction, and the proof of its cultivation and enclosure is quite clear. On these facts, was he within the meaning of the statute, in possession of this fraction by personal residence thereon?

The counsel for appellees has made a vigorous argument in support of the negative of this question. Assuming that Lindsey could not have a residence on both the northeast and southeast quarter sections at one time, and claiming that the case is to be governed by the analogies of a question of domicil in a case of conflicting jurisdictions, he has made an apparently strong case out of the fact, that the larger portion of the house is on the south side of the line.

This, however, is not a case of domicil under different Governments or conflicting jurisdictions. It is a question arising under the Government of the United States, and concerns a construction of one of its most benevolent statutes, made for the benefit of its own citizens, inviting and encouraging them to settle upon its public lands. The Government which made the law, owned both quarter sections, and was indifferent as to which should be sold to Lindsey, provided it was legally done. Lindsey's house was on both quarter sections. He lived or resided in all that house. So far as mere personal residence is concerned, we think he may be correctly said to have resided on both quarter sections. The law only required that he should personally reside on the quarter which he claimed to enter, and if he resided on both, then clearly he resided on this one.

But the language of the act makes possession the principal matter, and personal residence the qualifying matter. Leaving out the word housekeeper, which is not in question, the qualification of a person who can pre-empt under the act, is one 'who was in possession by personal residence thereon.' Now that Lindsey was in possession, is shown by his stable or blacksmith shop, by his enclosure and cultivation of the ground, or a part of it. When in addition to these facts, a considerable part of the house in which he and his family lived, was also on this little five-acre piece of ground, may it not be said that he had possession of it by personal residence thereon?

We are of opinion that on the true construction of the statute he had. It follows, from what we have said, that the patent certificate issued to Thomas Lindsey was rightfully issued by the Receiver and Register, that the act of the Commissioner in setting it aside was illegal, and did not destroy the right thus vested, that the land was not subject to entry by David Hawes, and that the patent obtained by him, was wrongfully and illegally issued to him, and that the plaintiffs are entitled to a conveyance of the legal title from him and his co-defendants.

The decree of the Circuit Court is therefore reversed, and the case remanded to that Court, with instructions to enter a decree in conformity with this opinion.

title: Lindsey. v. Hawes./Opinion of the Court


text: Talk:Lindsey. v. Hawes./Opinion of the Court

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


text:
Dredge. v. Forsyth

Error to the Circuit Court of the United States for the Northern District of Illinois.

Mr. Ballance, of Illinois, for Plaintiffs in Error.

Mr. Williams, of Illinois, for Defendant in Error.

Mr. Justice CLIFFORD.

title: Dredge. v. Forsyth


text: Talk:Dredge. v. Forsyth

title: Talk:Dredge. v. Forsyth


text:
Dredge. v. Forsyth/Opinion of the Court

This was an action of ejectment, and the case comes before the Court upon a writ of error to the Circuit Court of the United States for the Northern District of Illinois. Suit was brought in the Court below by the present defendant against John Dredge, John A. Keys and Jesse Hester, to recover possession of a certain parcel of land described in the declaration as part of claims forty-five and sixty-nine, and part of claims sixty-two and sixty three, in the village of Peoria, in the State of Illinois, and also by metes and bounds. Plaintiff alleged that on the first day of July, 1855, he was possessed of the described tract, and that the defendants on the following day entered into the premises, and have ever since that time unlawfully withheld the same. Defendants appeared and pleaded the general issue, any by consent of parties their landlord, Charles Ballance, was, on the twenty-third day of July, 1856, made a co-defendant in the suit. Issue being joined, the parties went to trial, and the jury returned their verdict in favor of the plaintiff, and judgment was subsequently entered on the verdict; but upon motion of the defendants, and satisfactory proof exhibited by them that they had paid all the taxable costs, the judgment was vacated and set aside by the order of the Court, and a new trial was granted. No further proceedings were had in the cause until the July Term, 1857, when the parties again went to trial upon the general issue. Title was claimed by the plaintiff under a patent from the United States to the legal representatives of one Antoine Lapance, who was an inhabitant or settler within the purview of the Act of the third of March, 1823, entitled 'An Act to confirm certain claims to lots in the village of Peoria, in the State of Illinois. He accordingly introduced the patent, and deraigned his title from the patentees therein described. Recurring to the patent, it will be seen that it bears date the first day of February, 1847, and was issued for a certain lot of land surveyed and designated, as covered by claims sixty-two and sixty-three, in the southwest fractional quarter of fractional section nine, in township eight north, of range eight east, of the fourth principal meridian, in the State of Illinois. Survey on which the patent is founded was approved on the first day of September, 1840 and it is not controverted that the ancestor of the patentees was one of the inhabitants or settlers described in the Act of Congress under which the patent was granted. Two plats were also introduced by the plaintiff, which were objected to by the defendants, upon the ground that they were certified by the Surveyor of Public Lands, and not by the Secretary of the Treasury. One was a plat of the village of Peoria, and the other was a plat of claim or lot sixty-three; but the Court overruled the objections of the defendants, and the plats were admitted in evidence. Certain portions of Edward Cole's report, made to the Secretary of the Treasury, on the tenth day of November, 1820, were also offered by the plaintiff, to be read in evidence, as appears in the third volume of American State Papers, relative to the public lands. Objection to the admissibility of the volume was duly made by the defendants, on the ground that it was not properly authenticated, but the Court overruled the objection, and so much of the report as relates to the claim in controversy was read to the jury. Various deeds also from the heirs of Antoine Lapance to the plaintiff, or to those under whom he claims, were given in evidence by the plaintiff, and he also introduced a duly certified copy of a certain Chancery proceeding for partition, which resulted in a decree of sale of the interests of several of the parties under whom the plaintiff derived his title as a purchaser. Those proceedings were introduced to show that the interests of parties owning one-third of the premises in common with the plaintiff were duly sold by a Commissioner of the Court in which the proceedings took place, and that the same became vested in the plaintiff, as a purchaser at a legal sale. Such was the substance of the evidence offered by the plaintiff, as more fully set forth in the transcript. On the other hand, the defendants claimed title under a patent dated the twenty-fourth day of January, 1838, as issued to Charles Ballance, granting to him the southwest fractional quarter of section nine, in township eight north, of range eight east, in the district of lands subject to sale at Quincy, Illinois, 'subject, however, to the rights of any and all persons claiming under the Act of Congress of the third of March, 1823,' to which reference has already been made. They accordingly gave the patent in evidence, together with a duplicate of the receipt given by the Receiver of the Land Office, and the certificate of the Register, on which the patent is founded. Relying on these evidences of title, the defendants also offered evidence tending to show that Charles Ballance, or those claiming under him, had been in possession of the premises, claiming title to the same, from 1842 to the commencement of this suit. Much testimony was taken as to the possession of the premises, but inasmuch as the plaintiff now concedes that the defendants occupied the same from 1842 to the commencement of the suit, the testimony will not be very fully reproduced.

On this state of the case the defendants requested the Court to instruct the jury: 1. That the title exhibited by them was superior in point of law to that exhibited by the plaintiff. 2. That the title of the defendants was a regular chain of title, deducible of record from the United States, and if they believed from the evidence that the defendants, and those under whom they received the possession, had been in actual possession, by residence, of the premises more than seven years immediately preceding the commencement of the suit, and were still in possession when the suit was brought, then the plaintiff was not entitled to recover in this action. Other prayers for instruction were also presented by the defendants; but in the view we have taken of the case it will not be necessary to refer to any other at the present time. Both of these requests were refused by the Court, and the jury, among other things, were told: 1. That the defendant, Ballance, acquired no absolute title to the lot in question under his patent from the United States; but that the other title, under the Act of 1823, was the paramount title. 2. That in order to be protected under the law of 1835, he, or those claiming under him, must have had possession by actual residence on the land in controversy for seven years next preceding the commencement of this suit. Under these instructions, and others which need not be noticed, the jury found that the defendants were guilty of unlawfully withholding from the possession of the plaintiff so much of claim sixty-three as is covered by the southwesterly half of lot numbered one, in block forty-seven, in Ballance's addition to the town of Peoria.

1. Verdict was rendered on the 3d day of August, 1857, but the bill of exceptions was not filed in Court until a subsequent day in the same term; and it is contended by the plaintiff that the record does not show that the exceptions were duly taken before the jury retired from the bar of the Court. But the objection is entirely without merit, so far as respects the prayers for instruction presented by the defendants, and the instructions given to the jury, as will appear by an examination of the statement which immediately precedes the bill of exceptions, as well as by the closing paragraph of the same. Just preceding the formal part of the bill of exceptions is the statement in the record that 'the following exceptions were made by the defendants upon the trial of this cause,' and that the same 'were allowed by the Court;' and immediately following the instructions given to the jury is the additional statement, that the 'defendants then and there excepted' to the decisions and rulings of the Court. Undoubtedly the rule is that the record must show that the exception relied on was taken and reserved by the party at the trial; but it is a mistake to suppose that it has ever been held by this Court that it must be drawn out and sealed by the Judge before the jury retire from the bar of the Court. Great inconvenience would result from such a requirement, and in point of fact there is no such rule. On the contrary, it is always allowable, if the exception be seasonably taken and reserved, that it may be drawn out in form and sealed by the Judge afterwards; and the time within which it may be so drawn out and presented to the Court must depend on the rules and practice of the Court, and the judicial discretion of the presiding Justice. Such was the rule laid down by this Court in United States vs. Brietling, (20 How., 254), and we see no reason to qualify it on the present occasion. See also Phelps vs. Mayer, (15 How., 160); Turner vs. Yates, (16 How., 28).

2. Certain exceptions were also taken by the defendants to the ruling of the Court in admitting evidence offered by the plaintiff, as before explained, but inasmuch as the objections are the same as those which came before the Court in Gregg, et al. vs. Forsyth, 24 How., 179, we do not think it necessary to give them any further examination, and they are accordingly overruled.

3. Repeated decisions of this Court also have settled the question that the presiding Justice was correct in refusing to instruct the Jury that the paper title of the defendant was superior in point of law to that of the plaintiff. Although the patent under which the defendants claim is the elder, yet as the patentee took it subject to the confirmed title under which the plaintiff claims, this Court has uniformly held, and now holds, that the latter, independently of any question of adverse possession, must prevail. Bryan vs. Forsyth, 19 How., 334; Mehan et al. vs. Forsyth, 24 How., 175; Gregg vs. Tesson, 1 Black., 150.

4. Suit was commenced in this case on the 9th day of July, 1855, and the evidence shows that Charles Ballance, or those claiming under him, were in possession of the premises in controversy as early as 1842, and were also in possession when the suit was commenced. Ballance commenced building a dwelling-house on a part of the same quarter section in the year 1842, and in the early part of 1844 moved into it with his family, and since that time has continued to reside in that house. Some of the witnesses testify that he claimed to be the owner of this fractional quarter as early as 1832, and that he has cultivated part of it from that time to the date of the writ; but it will be sufficient to state that the evidence clearly shows that he has had his residence on the quarter section since the year 1844, and that he, or those claiming under him, have been in the possession of the lot in question in this case throughout the entire period of his residence in his present dwelling-house. Assuming the fact to be so, then, it is clear that the presiding Justice erred in refusing to given the second instruction requested by the defendants, as well as in the instruction given upon that subject. No person who has any right of entry into any lands, tenements or hereditaments, of which any person may be possessed by actual residence thereon, having a connected title in law or equity from the State or the United States, can make any entry therein under the limitation law of that State passed in 1835, except within seven years of the time of such possession being taken. Sess. Laws 1835, p. 42.

When the patent under which the defendants claim was issued, no survey of any lots granted to the inhabitants or settlers in the village of Peoria had been made. Those persons therefore held but an inchoate right, which must first be surveyed and designated before the right granted to them would supercede the title acquired under the defendant's patent. They might never make any claim, and in that event the other title would be valid. Consequently, this Court held in Bryan et al. vs. Forsyth, 19 How., 338, that, subject to that contingency, the patentee under whom the defendants claim took a title in fee till 1840, when the title to the village lots was by the survey and designation then made, ripened into a better title; but the Court also held at the same time that the patentee was a fee simple title on its face, and as such was sufficient to afford protection to one claiming title under it, if accompanied by proof of such possession for seven years, as is required by the Illinois statute of limitation.

5. Reference is made by the plaintiff to the reservation contained in the patent, and the argument is, that the defendants held possession of the land subject to the rights of the plaintiff, and consequently that their possession was subservient and not adverse to the plaintiff's title. But the proposition cannot be sustained, as is obvious from the language of the patent. Fee simple title is granted to the patentee and his heirs of the described tract, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, subject, however, to the rights of any and all persons claiming under the before mentioned act of Congress. Looking at the language of the patent, it is clear that the saving clause was designed merely to exonorate the United States from any claim of the patentee or his assigns in the event that any other person should prove a superior title. Such was the view taken of that clause by this Court in Mehan et al. vs. Forsyth, 24 How., 178, and in several other cases involving the same question, and we have no doubt that such is the construction of the clause. Gregg vs. Tesson, 1 Black., 150. Applying these principles to the present case, the conclusion necessarily follows, that the presiding Justice erred both in refusing to instruct the Jury as requested, and in the instruction given upon the subject. Gregg et al. vs. Forsyth, 24 How., 174.

6. Where a quarter section, as in this case, has been subdivided by the occupant and claimant into lots, it is not necessary, under the Illinois statute, in order to secure the benefit of the limitation of seven years, that the claimant should have an actual residence on each lot of the subdivision in the sense in which those terms are ordinarily understood, but it is sufficient if he shows an actual residence for the entire period on some one of the lots claiming the whole under the same title, and that the lot in controversy was and is in the possession of his tenant under his title, and pursuant to his claim. Gregg vs. Tesson, 1 Black., 150; Lindor vs. Kidder, 23 Ill. R., 51; Williams vs. Ballance et al., 23 Ill. R., 197; Gregg et al. vs. Forsyth, 24 How., 179. For these reasons the judgment of the Circuit Court is reversed, and the cause remanded, with instructions to issue a new venire.

title: Dredge. v. Forsyth/Opinion of the Court


text: Talk:Dredge. v. Forsyth/Opinion of the Court


text:
Kellogg v. Forsyth (67 U.S. 571)

Error to the Circuit Court of the United States for the Northern District of Illinois.

Mr. Ballance, of Illinois, for Plaintiffs in Error.

Mr. Williams, of Illinois, for Defendants.

Mr. Justice CLIFFORD.

title: Kellogg v. Forsyth (67 U.S. 571)


text: Page:Buttered Side Down.djvu/6

title: Page:Buttered Side Down.djvu/6


text: Talk:Kellogg v. Forsyth (67 U.S. 571)

title: Talk:Kellogg v. Forsyth (67 U.S. 571)


text:
Kellogg v. Forsyth (67 U.S. 571)/Opinion of the Court

These are writs of error to the Circuit Court of the United States for the Northern District of Illinois. Both suits were brought in the Court below by the present defendant against the respective plaintiffs in error. They were actions of ejectment, and were respectively commenced on the 18th day of November, 1854, to recover possession of certain but different parts of claim numbered seven in the village of Peoria, as confirmed to Thomas Forsyth under the Act of Congress, approved the 3d day of March, 1823, entitled an Act to confirm certain claims to lots in the village of Peoria, in the State of Illinois. In each case the defendants pleaded the general issue, and for the sake of brevity, it may be well to say, that the proceedings in the two suits, are so nearly alike that it will be unnecessary to refer to them separately, except in a few particulars, which will be specially noticed. Parties went to trial in both cases at the July Term, 1856, and the verdict in each, under the instructions of the Court, was in favor of the plaintiff, and the respective defendants excepted. Plaintiff claimed title in each case under a patent to the legal representatives of Thomas Forsyth, dated the 16th day of December, 1845, and it was admitted at the trial that the plaintiff had that title. On the other hand, the defendants in the respective suits claimed the premises under a patent issued to John L. Bogardus, dated the 5th day of January, 1838, and granting to him the southeast fractional quarter of section nine in township eight north, of range eight east, in the District, of land subject to sale, at Quincy in the State of Illinois, subject, however, to all the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, entitled as already described. Premises in controversy are included in that patent, and it was admitted at the trial that the defendant in the respective suits have had the actual possession of the land for which they are sued by residences thereon for ten years next preceding the commencement of the suits. Other admissions, as to the possession of the premises by the defendants, were made at the same time, but it is not necessary to refer to them in this investigation. Defendants in the first case requested the Court to instruct the jury that the title under which they claimed was a title deducible of record from the United States, and that the plaintiff, inasmuch as he admits that they had been in possession more than seven years before the suit was commenced, is barred by the Illinois Statute of Limitations; but the Court refused the prayer, and among other things instructed the jury that the entry and patent under which defendants claimed were subject to the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, so that no one claiming under the patent, and by virtue thereof, could claim under the Statute of Limitations for seven years to have entered into the possession of the lot under the claim or color of title Prayers for instruction substantially the same were also presented by the defendants in the other case, and the record shows that they were refused by the Court, and that the instructions given to the jury were in all respects the same as those already recited.

1. It is insisted by the plaintiff, in the first place, that the bill of exceptions does not show that the rulings of the Court in refusing to instruct the jury as requested, and in respect to the instructions given, were properly excepted to at the time the rulings were made. But sufficient appears to show that the prayers for instruction were presented, and the instructions given before the jury retired from the bar of the Court, and the statement at the close of the bill of exceptions and immediately following the instructions given is, that the 'defendants then and there excepted' to the instructions, rulings, and decisions of the Court. Evidently the objection is substantially the same as that considered in the case of Dredge et al. vs. Forsyth, decided at the present term, and for the reasons there given it is overruled. United States vs. Brietling, (20 How., 252).

2. In the second place, it is insisted by the plaintiff that the possession of the defendants were not adverse to the title of the plaintiff. He states the proposition, but furnishes no explanation of the grounds on which it rests. Unless it is founded on the saving clause in the patent of the defendants, there is nothing in either case to give it the slightest support; and if it is founded upon that clause, it is a sufficient answer to it to say, that it proceeds upon an erroneous view as to the legal effect of the patent. Bryan et al. vs. Forsyth, (19 How., 338); Mahan et al. vs. Forsyth, (24 How., 175); Gregg vs. Tesson, (1 Black., 150).

3. Suggestion is also made by the plaintiff that the title of the defendants is not such as is required by law to secure to them the benefit of the seven years Limitation Act of the State of Illinois, but the point has been so frequently ruled otherwise by the State Court, and by this Court, that we do not think it necessary to give it any further examination. Suffice it to say, that in our opinion the instructions requested should have been given, and those given should have been withheld. The respective judgments of the Circuit Court are accordingly reversed, and the causes remanded, with instructions in each case to issue a new venire.


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Congdon. v. Goodman

Error to the Supreme Court of the State of Tennessee.

The defendants in error in this cause were the Common School Commissioners of the Eighth Civil District of Polk County, Tennessee, who in that character filed their bill on the 13th of February, 1856, in the Chancery Court at Benton, to impeach and set aside a lease for ninety-nine years, made by their predecessors, of the Common School Section of land in that district, and a sale made of the same land under an order of the Circuit Court of the County. The validity of the sale and lease was impeached and maintained upon the authority of State laws. The Chancery Court dismissed the bill. On appeal to the Supreme Court of Tennessee, the decree was reversed and the case remanded for final proceedings. Defendants below thereupon sued out their writ of error in the Supreme Court of the United States.

Mr. Meigs, of Tennessee, for Plaintiff in Error.

No counsel appeared for Defendants in Error.

Mr. Chief Justice TANEY.

title: Congdon. v. Goodman


text: Talk:Congdon. v. Goodman

title: Talk:Congdon. v. Goodman


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Congdon. v. Goodman/Opinion of the Court

This writ of error is directed to the Supreme Court of Tennessee, and is brought to revise a decree of that Court which declared null and void a certain sale and lease of school lands in Polk County, under which sale and lease the plaintiffs in error claimed title to these lands.

The statement of the facts in the transcript will show that the validity of this sale and lease depended altogether upon the laws of the State, and the proceedings of the State authorities. The plaintiffs in error do not claim under any laws of Congress, or any authority exercised by the United States. On the contrary, they deny the authority of Congress to pass the Act of 1843, (which is the only Act of Congress referred to,) and claim that a lease for ninety-nine years, made by the School Commissioners under a law of the State, was valid, and passed the title for the term, although in direct opposition to the provisions of the Act of Congress. Such a controversy, where no right is claimed under the Constitution or laws of the United States, is exclusively within the jurisdiction of the State Court, and this Court has no appellate power over its judgment. This writ must therefore be dismissed for want of jurisdiction.


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Russell v. Ely.

Error to the District Court of the United States for the District of Wisconsin.

The facts are fully stated in the opinion of the Court. It was argued by Mr. Doolittle, of Wisconsin, for Plaintiff in Error.

Mr. Lynde, of Wisconsin, contra.

Mr. Justice MILLER.

title: Russell v. Ely.


text: Talk:Russell v. Ely.

title: Talk:Russell v. Ely.


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Russell v. Ely./Opinion of the Court

This was an action of ejectment in the District Court of the United States for the District of Wisconsin, in which the defendants in error obtained a judgment against the plaintiff in error, for the possession of block 70, of the School Section of the City of Racine.

The legal title to this block was in David L. Barton, on the 24th April, 1851, and on that day he made a mortgage deed conveying said block to Floyd P. Baker, to secure the payment of a note for $1,400, due one year after date, and on the next day, the 24th of the same month, he conveyed it in fee to Clifford A. Baker.

The plaintiffs on the trial exhibited a regular chain of title from Clifford A. Baker to themselves, and the defendant proved himself to be the owner and holder of the note and mortgage above recited, and being in possession of the block sued for, claimed the right to hold it until the debt was paid. It appears further by the bill of exceptions, that plaintiffs traced their title through one Charles R. Dean, and testimony was given tending to show that Charles R. Dean was a fictitious person, who never had any real existence. The only other fact shown by the bill of exceptions, necessary to an understanding of the case, is the statement of Thomas S. Baker, that from the summer of 1853, until the spring of 1856, he held possession of the property under a lease from plaintiffs, and the surrendered it to the defendant, without the knowledge or consent of plaintiffs.

The defendant on the trial excepted to the three propositions following, contained in the charge of the Court to the jury:

1. 'If the defendant procured the possession and occupies it in pursuance of an arrangement, in the spring of 1856, with T. S. Baker, without the consent of the mortgagor, or of these plaintiffs, then he is not lawfully in possession.'

2. 'If the testimony of Clifford A. Baker is believed, the deed' (to Charles R. Dean) 'passed the title from him.'

3. 'The legal title, in the opinion of the Court, on the face of the deeds, is in the plaintiffs.'

In examining the questions arising on these exceptions, it will be convenient to take up first, the one last mentioned. It is the province of the Court in trials by jury to construe instruments of writing and determine their legal effect, and if it was apparent that on the face of the deeds,-the legal title was in plaintiffs, it was not only the right of the Court, but its duty to so instruct the jury. Is it true, then, that the deeds read in evidence showed the title in plaintiffs?

The plaintiff in error maintains, that by the mortgage deed of D. L. Barton, of July 23d, 1851, the legal title passed to Floyd P. Baker, and that by the deed made July 24th, to Clifford A. Baker, nothing passed but the equity of redemption; and if he is correct in this the instruction was error.

Numerous authorities from English and American decisions are cited by counsel on both sides in reference to this point, but in the view which we take of the matter they become of little value, except those of the Wisconsin Court. These deeds were both made in Wisconsin, in reference to land lying in that State, and in their construction, must be governed by its laws. The Revised Statutes of Wisconsin, chap. 141, sec. 28, enact, that 'no action of ejectment shall hereafter be brought by a mortgagee, or his assigns, or representatives, for the recovery of the possession of the mortgage premises, until the equity of redemption shall have expired.' Chap. 154, sec. 11, provides, that 'in every case the mortgagor may retain full possession in trust for the mortgagee or purchaser, of all premises mortgaged by him, until the title shall absolutely vest in the purchaser of such mortgaged premises, according to the provisions of this chapter.'

The Supreme Court of Wisconsin, in the case of Wood and Moon vs. Trask, (7 Wis. R., 512), speaking of these provisions, and perhaps others in pari materia, says: 'Our statute has essentially changed the rule of the common law, in relation to the position of the fee of the mortgaged premises, after condition broken. The fee does not vest upon default of the mortgagor, in the mortgagee, or his assignee. The fee only vests upon sale and foreclosure.' In Tallman vs. Ely, (6 Wis. R., 257), the same Court says: 'Our statute provides that the mortgagee shall not bring his action of ejectment before foreclosing the equity of redemption; sec. 53, chap. 106, or in other words he must complete his title, before he shall be permitted to recover at law upon the strength of it.'

These expositions of the statutes of Wisconsin are to be followed by the Federal Courts as rules of construction, and from them it results that the legal title did not pass to Floyd P. Baker by the mortgage deed of July 23d, but did pass to Clifford A. Baker by the deed in fee made the day after.

The instruction was therefore correct.

The next error alleged is based upon that part of the Court's charge embraced in the following sentence: 'If the defendant procured the possession, and occupies it in pursuance of an arrangement in the spring of 1856, with T. S. Baker, without the consent of the mortgagor or of these plaintiffs, then he is not lawfully in possession.' The truth of this proposition would seem to be a necessary corollary from the one just discussed. Indeed it would seem to be a clearer deduction from the statutes cited, than that mad by the Supreme Court of Wisconsin, in reference to the position of the fee; for if the mortgagee has no right to recover the possession by legal proceedings, it would seem that he should not be permitted in any other manner to obtain that possession against the consent of the mortgagee, or the person holding under him. We are, however, referred by counsel for plaintiff in error to the cases of Gillett vs. Eaton, (6 Wis. R., 30), and Tallman vs. Ely, (Wis., 257), as establishing a contrary doctrine. A careful examination of these cases does not sustain the proposition in favor of which they are cited, to an extent which will conflict with the instruction of the Court under consideration.

It is true, that in both of these cases, it is held that the mortgagee lawfully in possession cannot be turned out by ejectment brought by the mortgagor. In both the cases, the decision turned upon the fact that the mortgagees were lawfully in possession, and in both it is evident that the defendants originally entered with the consent of the mortgagor, either express or implied.

The language used in the second of the cases cited, namely, Tallman vs. Ely, a part of which has already been quoted in regard to the position of the fee, shows very clearly the distinction which was in the mind of the Court as to the lawfulness of the mortgagee's possession. The Court says: 'Our statute provides that the mortgagee shall not bring his action of ejectment before foreclosing the equity of redemption, sec. 53, chap. 106, or in other words, he must complete his title before he shall be permitted to recover at law upon the strength of it. Still, if he is lawfully in possession after condition broken, he will not be turned out until his debt is paid.'

This leaves still undecided the question as to what is lawful possession, and we concur with the District Court, that if the defendant in this case, although he may have been the holder of the mortgage and the debt secured by it, obtained the possession of the block in controversy, by an arrangement with the tenant of the plaintiffs, after said lease had expired, and without their consent, he was not lawfully in possession.

The remaining exception is to the charge of the Court, 'that if the testimony of Clifford A. Baker is believed, the deed' (to Charles R. Dean) 'passed the title from him' (Baker). In that part of the charge which immediately precedes the words objected to, the Court says: 'The deed of Clifford A. Baker to Charles R. Dean is alleged to be fraudulently executed by Floyd P. Baker in the name of Clifford A. Baker. That he used Clifford's name without authority, and that Charles R. Dean was a fictitious person. The evidence of Botsford shows these facts prima facie.'

It is manifest that if Charles R. Dean was a fictitious person, plaintiffs had no title, for they claimed under a deed from him. It is equally clear, that if the testimony of Botsford showed that fact prima facie, the testimony of any witness who proved the existence of Dean as a real person was very important, and required careful scrutiny; and the comments of the Judge on any such witness, or his evidence, should have been given with great caution, and should have left to the jury all that properly belonged to it. But we are unable to see from anything in this record that the Court exceeded its functions in the charge. It was certainly proper that it should call attention to Baker's testimony, as it had done to that of Botsford. Baker may have testified to facts, which if true, or if believed by the jury, made it so clear that the title passed from him to Dean, as to justify the Court in saying so. And if he did so testify, we cannot say that the conclusion thus stated by the Court, leaving as it did the right to believe or disbelieve the witness to the jury, was error.

It is true that this Court does not see anything in that part of Baker's testimony embodied in the bill of exceptions which justifies such an inference. But the ill of exceptions does not purport to give all that he said, and according to a well-known rule, this Court, under such a condition of the record, is bound to presume that there was that in Baker's testimony which justified the instruction. What purports to be the entire deposition of Baker is sent up by the Clerk of the District Court, and is printed in the record before us, and if properly before us might sustain the exception. But this deposition is not incorporated into the bill of exceptions, nor so referred to in it as to be made a part of the record of the case. It is only a useless encumbrance of the transcript, and an expense to the litigating parties. Clerks who certify transcripts to this Court should know what does properly constitute the record they are to send up, as it is a matter which has been often decided, and which may be readily learned with a little attention.

The judgment of the District Court is therefore affirmed.

title: Russell v. Ely./Opinion of the Court


text: Talk:Russell v. Ely./Opinion of the Court


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Ship Potomac

Appeal from the Circuit Court of the United States for the Southern District of New York.

On the 23d of November, 1855, the libel in this cause was filed in the District Court of the United States for the Southern District of New York, by Baker, a ship-wright and carpenter, in rem. against the ship Potomac, to recover a bill of repairs. The Potomac was a ship of more than five hundred tons, and was engaged in the general freighting business. She had just returned from a foreign voyage and was about to sail for Australia. The libel stated that the repairs were necessary and that without them she could not proceed to sea and earn freight and passage-money; that they were furnished on the credit of the vessel, and master and owners (the master was an owner); that the libellant had a lien upon her for them, and that the case was within the jurisdiction of the Admiralty.

The answer admitted the repairing the vessel, but not to the amount claimed, and did not deny the jurisdiction, the necessity for the repairs or the lien.

The District Court made a decree that the libellant recover the amount of his repairs, and referred it to a Commissioner to ascertain the amount. The Commissioner reported $3,996.18, including the interest. The claimant excepted to the report.

The Court overruled the exceptions, and made a final decree that the libellant recover the amount reported by the Commissioner.

The claimant appealed to the Circuit Court from the whole of the final decree.

The libellants moved the Circuit Court to dismiss the appeal on the ground that it had not been perfected. The motion was denied, on condition that the claimants deposit the amount of the decree in Court, which was done, and by order of the Court it was paid over to the libellants, on their giving a bond to obey the order of Court in the cause.

Much conflicting evidence was given upon the trial, the libellant proving his demand for work and materials from the books and accounts kept by his clerks in the ordinary course of business, while the claimant brought persons, said to be skilled in the business of building and repairing ships, to show that the amount expended upon the vessel, fell far short of that claimed by the libellant. The Circuit Court affirmed the decree of the District Court and the claimant took this appeal.

Mr. Gillet, of Washington City, for Appellant.

Mr. Benedict, of New York, contra.

Mr. Justice GRIER.

title: Ship Potomac


text: Talk:Ship Potomac

title: Talk:Ship Potomac


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Ship Potomac/Opinion of the Court

When the counsel prepared their briefs of argument in this case, they could not have seen the report of the case of 'the Steamer St. Lawrence,' (1 Black, 525), or they would have considered it labor lost to argue the same question of jurisdiction on the very same facts again at this term. The opinion of the Court in that case was unanimous; the question was fully discussed and the opinion delivered by the Chief Justice, and needs no further remark.

The appella t, in his answer, admits that the repairs were made to his ship by the libellant, but takes issue on the amount and alleges an agreement that the repairs to be made should not exceed a certain sum, less by one-half than the bill finally presented.

But it appeared clearly from the evidence, that although the libellant made an estimate of what would be the probable cost of the repairs, he did not contract to do the work for any given sum. The contract was to supply the timber and materials at market prices, and to receive certain wages per diem for each person employed. When the vessel was stripped, it was found necessary to make repairs on a much larger scale than had been at first estimated. The amount of libellant's bill of course far exceeded his original estimate. The report of the Master found the amount due, but stated no account. The exceptions to it were-1st. 'That it was for an amount far exceeding any amount of work performed.' 2d. 'That the libellant had not proved any work performed for which he was entitled to a decree.' 3d. 'That the libellant was not, under the pleadings, entitled to any decree whatever in his favor.' 4th. 'That Commissioner erred in admitting evidence,' &c.

If the respondent wished to contest any of the specific charges of the account, he should have had the report referred back to the Master, with direction to state an account. The account returned by the Master should report the items objected to and whether they were allowed, and the testimony or reasons justifying his decision. To such a report the party could make specific exceptions, and such general objections as those stated might well be treated as frivolous.

As the record stands this Court cannot know what items of the libellant's account were allowed or disallowed, or excepted to; we cannot say that other credits should have been allowed, because we do not know whether they were allowed or not.

For anything that appears on the face of this record the judgment of the District and Circuit Courts are correct. The libellant proved his demand for work and materials furnished by the books and accounts kept by his clerks; and the Court may well have considered this better evidence than the opinions of experts, taken ex parte to undervalue the work and count the treenails, after the sheeting was replaced and the repairs covered with paint. It is not enough for the appellant merely to raise a doubt on conflicting testimony, that the judgment of the Court below may possibly be erroneous. But in this case he has not suceeded even in raising a doubt.

The judgment of the Court below is assumed to be correct till the contrary is made to appear. It is not sufficient to produce a record from which it does not appear whether it is right or wrong.

The objection that the libellant should have joined some unknown partner as a party to this libel has no foundation whatever.

The contract is proved to have been made and the work executed by the libellant. There is no evidence that he had a partner in any way interested in the profits of the contract; and if he had, it was not necessary to make him a party, as appeared by the case of Law vs. Cross, decided at last term. (See 1 Black, 533.)

Let the judgment of the Circuit Court be affirmed.

title: Ship Potomac/Opinion of the Court


text: Talk:Ship Potomac/Opinion of the Court

title: Talk:Ship Potomac/Opinion of the Court


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Randall v. Howard

Appeal from the Circuit Court of the United States for the District of Maryland.

The appellants in this case filed their bill of complaint in the Circuit Court of the United States, for the District of Maryland, on the 18th of February, 1859, against the appellee, to which he demurred, and the Court sustained the demurrer. The case came before the Supreme Court on appeal from this decree. The allegations of the bill are stated in the opinion of the Court.

Mr. Mayer, of Maryland, for Appellants.

Mr. Evans and Mr. Gale, of Maryland, contra.

Mr. Justice DAVIS.

title: Randall v. Howard


text: Talk:Randall v. Howard

title: Talk:Randall v. Howard


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Randall v. Howard/Opinion of the Court

This is a bill in equity filed in th Circuit Court of the United States for the District of Maryland by the appellants against the appellee, who interposed a demurrer, which was sustained by the Court below, and an appeal was taken to this Court.

The bill states substantially, that the complainant, John Randall, Jr., was on the 6th of April, 1854, largely indebted to the defendant, to secure which indebtedness both of the complainants executed a mortgage on lands in Cecil County, Maryland, which lands were held in trust for the complainant Letitia's benefit for life. That soon after the mortgage matured the defendant filed his bill in the Cecil County Circuit Court for foreclosure and sale; and, on answer filed, a decree was passed on the 15th of October, 1855, for the sale of the mortgaged lands, time being given until 9th of October, 1856, to bring the money into Court. That in April, 1856, in order to defeat an attempt (charged to be fraudulent) by other parties to obtain possession of part of the lands mortgaged, it was agreed that the defendant with the assent of the complainants should petition the Court for an immediate sale, which was done, and the time for sale changed, and a friendly arrangement was made with the defendant that he was to buy the property ostensibly for himself, but was really to hold it in security for the decreed indebtedness, upon the satisfaction of which the purchase was to enure to the benefit of the complainant Letitia. That the sale took place on 14th October, 1856, and the defendant was the purchaser, (the 'friendly arrangement' continuing,) and that the property sold for less than its value on account of the general understanding that the sale was merely a formal one and not meant to divest the estate of the complainants. That the sale was ratified without objection from the complainants, under the assurance from the defendant that the property should, notwithstanding the ratification, stand as a security for the amount decreed, which was to be paid by instalments. That to perfect the form of sale, and to make it conform to the ostensible title of the purchaser, the complainants rented the property of the defendant. That having obtained an apparent title, the defendant has fraudulently determined to act as if he was the real owner, and is claiming the right to sell, and that through threats he extorted an agreement from the complainants, which was framed and meant to involve them in the recognition of his title. That the defendant, in furtherance of his object to oppress, has, by legal though irregular process, through the Sheriff of Cecil County, dispossessed the complainants.

The prayer of the bill is to restrain the defendant from disposing of the lands, and for the sale of so much of said lands as may be necessary to pay off the defendant according to the understanding prior to the purchase, and that the residue of the lands be conveyed to Mrs. Randall. There is also a prayer for general relief.

There are two questions presented by this record:

1. Upon the facts stated in this bill, are the complainants entitled in equity to the relief prayed for?

2. Has this Court jurisdiction?

The statements of this bill are vague and uncertain, frequently argumentative, and very rarely plain and direct. The whole bill lacks definitiveness. Agreements, friendly arrangements understandings, and fraudulent devices are freely spoken of, but the character of the agreements and the nature of the devices we do not learn. The bill seeks to establish a trust for the benefit of Mrs. Randall, growing out of certain proceedings in the Circuit Court of Cecil County, Maryland. Are the complainants in a situation to enforce the trust, if one is established? We think not.

The following allegations contain the charges relied on in the bill to establish the trust:

'And your orator and oratrix state and charge, that about April, in the year 1856, in consequence of a fraud being attempted against your complainants, through devices involving the possession of part of the land mortgaged as aforesa d, it was deemed proper for counteracting said fraud, that, on a petition to be filed by said Howard in the case of said decree, your complainants should assent to a sale, (under friendly arrangements between said Howard, and then rendering such sale merely formal and nominal,) taking place forthwith, instead of being deferred to the period (the next October) provided by the decree.

And your complainants aver, that under their answer to such petition, which was filed, the time for the sale was by decree thus changed, and under the friendly arrangement and understanding aforesaid, and which was to the effect that said Howard was to become purchaser of said mortgaged property at a sale under the decree, but really to only hold it for securing the payment of the mortgage and decreed indebtment as aforesaid, upon satisfying which the property it was understood should enure, as provided by the terms of the said trust, for the benefit of your oratrix.'

These allegations, stripped of their indefiniteness and vagueness, mean simply this, that the parties to this bill, in order to counteract a claim set up by other parties for a portion of the mortgage lands, combined together, through the aid of the Court, to shorten the time of sale, and to cover up the real ownership of the property.

A fraudulent agreement was entered into to defeat, as is charged, 'a fraud attempted against the complainants.' If the claim set up was a fraud on the rights of the complainants, does that consideration change the character of the agreement which was made to defeat that fraud? Manifestly not. The whole complaint of the bill is that the defendant will not execute the agreement thus fraudulently made, and the object of the bill is to compel him to do it.

A Court of Equity will not intervene to give relief to either party from the consequences of such an agreement. The maxim in pari delicto potior est conditio defendantis must prevail.

It is against the policy of the law to enable either party, in controversies between themselves, to enforce an agreement in fraud of the law, or which was made to injure another. Story's Equity, vol. 1, sec. 298; Balt. vs. Rogers, (2 Paige, 156); Wilson vs. Watts., (9 Gill, 356).

There are several other grounds decisive against the relief prayed for. We will, however, notice but one other. There is no averment in the bill that the defendant ever agreed in writing to hold the lands in trust for Mrs. Randall. In fact it is manifest from the whole bill that the agreement was a mere matter of conversation between the parties, and that no memorandum in writing was ever made. Inasmuch as it concerns an interest in lands, and is in parol, it is void by the Statute of Frauds, and appearing as it does on the face of the bill, the defence of the Statute of Frauds may be taken advantage of on demurrer. Walker et al. vs. Locke et al., (7 Cushing, 90).

2. Has this Court jurisdiction. A conflict of jurisdiction is always to be avoided. Mr. Justice Grier, in Peck vs. Jenness, (7 Howard, 624), says: 'That it is a doctrine of law too long established to require a citation of authorities, that where a Court has jurisdiction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding on every other Court.

'These rules have their foundation not merely in comity, but on necessity. For if one may enjoin the other may retort by injunction, and thus the parties be without remedy, being liable to a process for contempt in one if they dare to proceed in the other.'

The bill in this case brings in review various matters passed on in the progress of a suit by the Cecil County Circuit Court, a Court of general jurisdiction having complete control of the parties and of the subject matter of controversy.

It seeks to annul a sale of lands made by virtue of a decree of the Cecil Court, sitting as a Court of Equity in a cause depending between these same parties to affect the distribution of the proceeds of the sale; to enjoin the defendant from making any disposition of the lands purchased by him; to disturb his possession; to invalidate his title, and to have the mortgaged property resold.

This is a direct and positive interference with the rightful authority of the State Court.

If there was error in the proceedings of the Court, a review can be had in the appellate tribunals of the State. If, as is charged, the decree is sought to be perverted and made the medium of consummating a wrong, then the Court, on petition or suppletal bill, can prevent it. If, as appears by the proceedings, the surplus money arising from the sale is still undisposed of, then the whole case is under the control of the Court, and no suppletal even is needed to prevent the wrong.

The decree dismissing the bill is affirmed.

title: Randall v. Howard/Opinion of the Court


text: Talk:Randall v. Howard/Opinion of the Court


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Nebraska City v. Campbell

Error to the Supreme Court of the Territory of Nebraska.

John T. Campbell brought his action against Nebraska City in the Court of the Second Judicial District for Otoe County, and alleged in his petition that the defendant, being a municipal corporation, had, by its charter, the title and control of the streets, alleys, squares, wharves, and other highways and public grounds within its limits, and was bound to keep them in repair. That the defendant was so bound to keep in repair a certain bridge on South street, across Tabb Creek; but, contrary to its legal duty, left that bridge without side-railing, and in other respects unsafe and defective, by reason of which, the plaintiff, a physician, visiting his patients, in a buggy, was thrown from the bridge and greatly injured, so as to prevent him for a long time from practising his profession.

The City denied its legal liability for such damages under any circumstances, and averred that the plaintiff got his injuries by his own fault; for he was thrown over the bridge in consequence of the viciousness of his horse, which he was carelessly driving without a whip, and which had taken fright at a paper posted on the bridge by a third party.

The jury found a verdict in favor of the plaintiff for $3,000 damages, and after an unsuccessful motion by the defendant in arrest of judgment, the Court gave judgment on the verdict. The cause was taken, by the petition of the defendant, to the Supreme Court of the Territory, where the judgment was affirmed, and thence it came to this Court by writ of error sued out by the City.

Mr. Taylor, of Nebraska, for Plaintiff in Error.

Mr. Woolworth, of Nebraska, contra.

Mr. Justice NELSON.

title: Nebraska City v. Campbell


text: Talk:Nebraska City v. Campbell

title: Talk:Nebraska City v. Campbell


text:
Nebraska City v. Campbell/Opinion of the Court

This is a writ of error to the Supreme Court of the Territory of Nebraska.

The suit was brought in the Court below by Campbell against the City to recover damages for injuries received by reason of a defective bridge in one of the streets in the City.

The charter vested in the City Council the title to all the streets within the corporate limits, and it is made their duty to construct and improve the same at the public's expense; for this purpose, and others, the counsel are authorized to levy a tax on all the taxable property within the City. This provision in respect to streets necessarily embraces all bridges within the limits of the City and constituting a part of the street.

There is also a general act referred to, which, among other things, confers upon all incorporated Cities exclusive jurisdiction over all streets, roads, bridges, and ferries within their corporate limits, and exempting the inhabitants from any assessment for road tax except by the corporate authorities of the same.

The law is well settled in respect to public municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair streets or bridges, and upon which is also conferred the means of accomplishing such duty, that they are liable for any special damage arising out of neglect in keeping the same in proper condition.

The principle was very fully considered at the last term in the case of Weighman vs. The Corporation of Washington, where all the authorities will be found collected and examined. 1 Black, pp. 39, 51, 52, 53.

The plaintiff was a practising physician, and in the course of the trial evidence was given, after objection, that he was engaged in extensive practice at the time of the injury, and also that it was a period of great sickness in the community.

The declaration states that the plaintiff was a physician at the time of the injury, and after describing the nature and extent of it, adds that by reason thereof, he was greatly bruised, sick and lame, and so continued for a long space of time, to wit, for the space of six weeks, and during all that time suffered great pain, and was prevented from transacting his ordinary business as a physician during that time.

Now, the evidence in question was relevant and pertinent, with a view to show the extent and amount of the ordinary business of the plaintiff in his profession, of which it is averred he was deprived during the time of his disability, and had a foundation which enabled the jury with some degree of certainty to ascertain the direct and necessary damages sustained from the injuries.

In the case of Wade vs. Leroy et al., (20 How., 34, 43, 44), which was an action for injuries to the plaintiff for carelessly navigating a ferry boat, the Court held that proof of the ordinary business in which the plaintiff was engaged, and that he was largely engaged in it, was admissible and pertinent upon the question of damages, though the fact was not set out in the declaration. The proof was regarded as showing the direct and necessary loss or damage from the injuries sustained.

The case before us is broken into many points, and prayers to the Court for instructions to the jury, but those noticed above cover all that is material to dispose of it.

Judgment of the Court below affirmed.


text: Talk:Nebraska City v. Campbell/Opinion of the Court


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United States v. Chaboya

These were cross appeals taken from the District Court of the United States for the Northern District of California.

Mr. Wills, of Washington City, for the United States.

Mr. Hepburn, and Mr. Wilkins, of California, contra.

Mr. Justice MILLER.

title: United States v. Chaboya


text: Talk:United States v. Chaboya

title: Talk:United States v. Chaboya


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

These are appears from the District Court of the United States for the Northern District of California.

The appellant, Petro Chaboya, on the 2d day of March, 1853, filed with the Board of Commissioners to settle private land claims in the State of California his petition to have confirmed to him two leagues of land in the County of Santa Clara, bounded as follows: On the north by the lands of Jose de Jesus Vallejo; on the east by the rancho of Antonio Sunol and the road from San Jose to the Valley; on the south by the Canada del Aliso, (Colindante con,) Don Flagencia Higuera, and on the west by the estuary.

With the petition were filed certain papers showing an application by Chaboya, in 1844, to Governor Micheltorena, for this land, and a reference by the Governor to the Prefect for the necessary information under the colonization laws and the sub-Prefect's report.

There was also filed, as an exhibit, an incomplete espediente relating to a totally different tract of land, all the parts of which bear date in the year 1839.

The Commissioners rejected the claim, saying that no grant had ever issued, no proof was given of segregation of the land, none of possession, and none of cultivation. The case, however, was carried into the District Court by appeal, and the appellant filed his petition in that Court, in which, referring to his former petition before the Board of Commissioners for a more particular description of the land, he prays that their decree may be reversed and his title confirmed.

In the progress of the case in the District Court, it was discovered that the land on which the claimant lived, and to which alone he really set up any claim was not described in the petition, but was that mentioned in the second espediente above alluded to, and was twenty miles distant from the land for which confirmation was asked. Under these circumstances the claimant was permitted by the Court, on 15th of June, 1857, to file an amended petition, setting out these facts and a true description of the land claimed, which was called La Posa de San Juan Bautista.

After a large amount of testimony had been taken in reference to this last mentioned claim, and the case had come to a hearing, the Court held that it had never been presented to the Board of Commissioners, and that the District Court had no jurisdiction as to that piece of land, and that it was then too late, under the Act of 1851, to present the claim anywhere.

From this decree Chaboya appealed to this Court, and the record of the case up to this stage of the proceedings, constitutes case No. 131 of our docket for the present term.

But while this appeal was pending, the appellant procured the passage of an Act of Congress, approved April 25, 1862, which authorized the District Court to hear and determine his claim to La Posa San Juan Bautista, in the same manner, and with the same jurisdiction, as if it had been duly presented to the Board of Land Commissioners. Accordingly, after taking further testimony, the case again came to a hearing before that Court on the 6th of November, 1862, and a decree was rendered rejecting the claim to all of the tract of land, supposed to be about two square leagues, except five hundred acres of it, which had been allotted to him by the authorities of San Jose, and confirming to him that much of it.

From this decree he has also appealed to this Court, and the record which has been brought up, being a complete transcript of the case from its commencement, constitutes case No. 288 of the docket of this term.

The appellant does not in this Court claim that he has any right to the land described in his petition to the Board of Commissioners, as to which they decided against him; but he does insist that the last decree of the Court deprives him of a very valuable tract of land, to which be thinks himself entitled.

The main fact on which he rests his claim in this case is his long continued possession of the land. There is no pretence that there was ever any grant of the land by the Mexican Government, and if the claim is to be confirmed, it must be upon the equity growing out of that possession, and the circumstances connected with it. It is established by the testimony in the record, that Chaboya was residing in a house of very insignificant proportions, on some part of the tract, as early as the year 1837, and has continued so to reside to the present time. But, it also appears, that his right to reside there, and especially his right to any exclusive possession or use of tract known as La Posa de San Juan Bautista, was matter of controversy from that early time between himself and the residents of the pueblo of San Jose. These villagers claimed that the tract so named, was a part of the ejidos or common lands of the pueblo, on which the cattle of all the pobladores or villagers had a right to range, and was particularly necessary to them on account of the water which it afforded. In his petition to the Governor asking a grant of this land, Chaboya alludes to his possession and to the resistance made to it by the residents of the pueblo, in these words:

'Therefore, I pray you to be pleased to grant me the ownership of what I actually possess, with my house and cattle, with the permission of the prefecture of this District, showing your Excellency that the reclamations which the residents of the pueblo have addressed against me to that Goverment are absolutely destitute of justice, since it is only made by four or five bad entertaining citizens, carrying of the view of the pueblo, since in nowise I prejudice their interest, and it happening to be vacant land, conformable to the law of colonization.'

This petition was dated May, 10, 1839, and the Governor having regard to this same matter of disputed possession, made the following order, which was endorsed on the margin of the petition:

'Monterey, May 20th, 1839.

'Let the prefecture report on the present solicitation, arranging from hence that the interested party may be conserved in the possession in which he finds himself of the land solicited, as long as the suitable procedure is going on.

(Signed) 'ALVARADO.'

On the 25th May the Prefect reported as follows:

'SIR:-The petitioner ought to be excused from the usual procedure, since the prefecture in my charge has already taken and perhaps despatched it conformable to his solicitation, since the reclamation which the residents of the pueblo of the vicinity have made, and of which I verbally have informed you, have no other design than to remove Sir Chabolla from the place he has occupied for many years, on account of antipathy of previous arrangement, which absolutely are destitute of justice.

'Notwithstanding, your Excellency will act in the premises as you shall believe convenient.

'San Juan de Castro, 25th of May, 1839.

'JOSE CASTRO.' The foregoing papers were filed with the petition of claimant before the Board of Commissioners, and were all the documentary evidence so filed by him in relation to this tract of land. But in the progress of the case in the District Court, another paper was produced, and as it relates to this same matter of the possession and seems to have a close connection with those just mentioned, it may as well be inserted here. It is as follows:

'The citizen, Dolores Pacheco, justice of the peace of the pueblo of San Jose Gaudalupe de Alvarado.

'By superior order of the Senor Prefect of the First District, it is conceded to the citizen Pedro Chabolla that he inhabit the place named Posa de San Juan Bautista without building any house of foundation, and much less plant trees (plantar bienes raises) for the term of two years, subjecting himself to pay $6 annually, and he must assist in the work on bridge or any others by which he may be benefited.

'San Jose Gaudalupe de Alvarado, February 29th, 1840.

'DOLORES PACHECO,

'PEDRO CHABOLLA.'

Notwithstanding the report of the prefect Castro, that the claimant ought to be excused from the usual procedure, by which we suppose he meant the procuring of an informe, that the land was vacant, the Governor did not issue a grant.

His claim or right to the possession stood then in the same condition of dispute as between himself and the pobladores of San Jose that it had previously, when on the 29th of February, 1840, he entered into what may be termed a compromise with them, which is evidenced by the foregoing paper, signed by himself and the Justice of the Peace of that pueblo.

We can give to this paper no other construction than a renunciation by Chaboya of any right to the possession of La Posa de San Juan Bautista, and a consent to occupy it for two years under the authorities of the pueblo, paying them $6 annual rent, and submitting to the terms which they chose to impose, to prevent him from acquiring any permanent possession or interest in the land.

There is nothing in the subsequent history of his occupation of the place to change the character of his possession. It is proven that while his cattle ranged over it, those of the residents of the village generally did the same.

On the contrary, there is strong evidence that this was his own construction of the character of his possession.

After the country came under the American Government, the authorities of San Jose determined to divide the ejidos or common lands of the pueblo, including this tract, among its residents, and in doing so allotted to Chaboya, as his share, five hundred acres around his dwelling. He accepted the instrument in the nature of a deed made to him by the Alcalde, and had it recorde. He was shortly after taxed by the authorities of San Jose for the entire tract of La Posa de San Juan Bautista, and it is distinctly proved by two witnesses, that he appeared before the proper officers to have the tax remitted, stating that he only claimed the five hundred acres allotted to him in the partition. The tax was accordingly remitted.

We think these facts show very clearly that the appellant never had any legal title to the land in question; that he never had any exclusive possession, beyond the five hundred acres which was allotted to him by the authorities of San Jose, and confirmed by the decree of the District Court; and that such possession as he did have was subsidiary to the claim of the authorities of the pueblo, and with recognition of their rights, and that the decree should be affirmed.

The decree of the District Court is affirmed in both appeals.


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


text:
Leffingwell v. Warren

Error to the District Court of the United States for the District of Wisconsin.

Mr. Lynde, of Wisconsin, for Plaintiff in Error.

Mr. Doolittle, for Wisconsin, contra.

Mr. Justice SWAYNE.

title: Leffingwell v. Warren


text: Talk:Leffingwell v. Warren

title: Talk:Leffingwell v. Warren


text:
Leffingwell v. Warren/Opinion of the Court

This cause is brought here by a writ of error to the District Court of the United States for the District of Wisconsin.

In the Court below, Warren, the defendant in error, instituted an action of ejectment to recover the premises in controversy. Judgment was rendered in his favor. The defendant there is the plaintiff in error here.

The parties made an agreement as to the facts which is set forth in the bill of exceptions. It was thereby admitted upon the trial—

'That the plaintiff has a perfect chain of title to the land in question from the United States to himself; and that the defendant was in possession thereof at the time of the commencement of this suit; and that the land in suit is of the value of more than $2,000;

'That the County of Rock, on the 6th day of February, A. D. 1852, made and delivered to John M. Keep a paper purporting to be a tax deed of said premises, of which, and the certificate of acknowledgment, the following is a copy.'

(Here follow the copies mentioned, which it is unnecessary to insert).

'(The plaintiff, however, not waiving any objection to said tax deed, which may appear on its face, or which may be made to appear by any other facts or evidence in the case).

'That said deed was recorded in the office of the Register of Deeds for Rock County, where said land is situated, on February 6th, 1852 (subject to the objection, however, which is reserved by the plaintiff on the ground, that said deed is not so executed and acknowledged as to be entitled to be recorded); that immediately thereafter said Keep sold said premises to said defendant, and that said defendant immediately thereafter entered into possession of said premises, and has been in possession ever since.

'That the plaintiff, on the 29th day of February, 1848, that being the proper time to pay the taxes on said land, including the tax for the nonpayment of which said tax deed purports to be given, wrote a letter and sent it by mail to the County Treasurer of said Rock County, who was the officer authorized by law to demand and received all the taxes on said land, including the delinquent tax in question, stating that he wished to pay the taxes on a list of lands mentioned, including the land in suit, asking for a bill of the same, showing the amount that he might remit; that said Treasurer on the same day received said letter at his office, and answered it, inclosing a bill corresponding with the receipt hereinafter given, stating that the inclosed was the bill called for by plaintiff's letter; that thereupon the said plaintiff remitted said amount to said Treasurer, who received the same, and returned to said plaintiff the said receipt herein after set forth the same day; and that at the date of the receipt the Treasurer and the plaintiff supposed that all the taxes on said lands were included in said receipt; but the parties agree that the particular tax for which the land was sold and deed given was not found by said Treasurer, and not included in said receipt.

'That after the date of said payment and receipt no demand was made of said plaintiff for payment of said delinquent tax, nor had plaintiff actual notice that said tax remained unpaid until more than three years after the recording of the tax deed, but that the premises were duly advertised for sale as by law required, and that said deed was recorded as hereinbefore set forth. That the said delinquent tax tax and costs amounted at the date of the sale to $1981100. That on the 11th day of April, 1857, said plaintiff deposited with the clerk of the Supervisors of Rock County the sum of $7050100, being the full amount of sale, interest, and costs, to redeem said land mentioned in the said tax deed, and that the deposit still remains there, there being no other unpaid tax on said land at that time.

'The following is a copy of the receipt given by said Treasurer, mentioned above, viz.:

'TERRITORY OF WISCONSIN, ROCK COUNTY,

'TREASURER'S OFFICE,

'February 29th, 1848.

'Received of the different owners, per Catlin & Williamson, agents, $25 60/100, in full of the taxes charged for the year 1847, on the following tracts of land in the County of Rock, W. T., consisting of the following items of tax, to wit: county, town, common school, territorial revenue, and

DESCRIPTION.. Section. Town. Range. Acres. Value. County. Town. ols.

E. 1/2 of S. W. 1/4 34    1    11   80  160  54  165  42  --tal. Scho  --. $2

S. E. 1/4. 34. 1 11  160  320  108  230  84  --  --  5

Lot No. 2. 11. 4 12   32.56     97 32/100   19   49  29  --   --...

N. E. 1/4 of N. E. 1/4  3 4    11   40.44  170  34  32  20  29 --

Lot No. 1. 11. 4 12   55  165 36/100  33  83  50  --  --   1

S. W. 1/4 of N. W. 1/4  1 4    10   40  233  86  88  43  70 --

Lot No. 3. 15. 4 12   64.35    193 14/100  39  96  58  677 --

E. 1/2 of N. W. 1/4 14    4    11   80. 112 69  68  43  62        —


text: Talk:Leffingwell v. Warren/Opinion of the Court


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Lessee of Parrish v. Ferris.

Error to the Circuit Court of the United States for the Southern District of Ohio.

Mr. Pugh and Mr. Worthington, of Ohio, for Plaintiff in Error.

Mr. Taft and Mr. James, of Ohio, contra.

Mr. Justice NELSON.

title: Lessee of Parrish v. Ferris.


text: Talk:Lessee of Parrish v. Ferris.

title: Talk:Lessee of Parrish v. Ferris.