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Goddard v. Ordway (101 U.S. 745)/Opinion of the Court

This appeal presents the following case:--

During the summer of 1871, Albert Ordway, the appellee, was engaged in securing a contract with the government to furnish and cut the granite for the then proposed new building to be erected in Washington for the use of the State, War, and Navy Departments. His bid for the work was put in on the nineteenth day of June, and formally accepted about the 1st of August. He resided at Richmond, Va., and late in July, 1871, negotiated with Robert G. Shedd, now deceased, for a loan, not exceeding $50,000, to be used in preparations for the execution of the contract. As security, Shedd was to be given, in some appropriate way, a lien on the contract, and he was to be repaid in instalments out of the profits. Under this arrangement, loans were made at various times during the summer and fall of that year, amounting, in the aggregate, to $38,500, from moneys which Shedd had in his hands as trustee for others.

By the terms of the bid of Ordway, as accepted by the supervising architect, Ordway was to furnish the granite from either the James River or the Green and Westham quarries near Richmond, as the architect should direct. He was to be paid certain stipulated prices for the stone as measured before cutting, when delivered at the site of the building. He was also to furnish the labor, tools, and materials necessary to cut, dress, and box the granite at the quarry in such manner as should be required, and also shops and sheds sufficient to accommodate one hundred granite-cutters, with a proper proportion of other mechanics. For this he was to be paid 'the full cost of the. . . labor, tools, shops, sheds, and materials, and also the insurance on the granite, increased by fifteen per centum of the cost.' At the time the bid was made and accepted, the erection of only that part of the building intended for the use of the State Department, being the south front, had been authorized, but Ordway was to furnish and cut, on the same terms and at the same prices, the granite for the whole building, as its construction should be provided for.

Ordway had control of the James River quarry, but not of the Green and Westham. The supervising architect required that the granite should be taken from the Green and Westham, which was owned by Andrews & Green. This made it necessary for Ordway to arrange, in some way, with Andrews & Green for the use of their quarry. The result was, that on the 7th of August these three persons entered into a copartnership under the name of Andrews, Ordway, & Green, and Andrews and Green put into the business their quarry, on certain specified terms, and Ordway all his contract with the government except that part which related to the cutting, boxing, &c., for the south front, which, as between himself and the firm, he retained for his own use. The profits accruing to the firm from the execution of the contract were to be divided in the proportion of fourteen thirty-sixths to Ordway and eleven thirty-sixths to each of the other partners. All other profits and losses were to be shared equally.

On the 16th of November, 1871, the contract between Ordway and the government was executed in form by Ordway and the supervising archi ect. On the 25th of November, Ordway entered into what was called an agreement of copartnership with one Andrew Washburne, 'for the purpose of cutting, dressing, and boxing the stone to be furnished the United States under the contract of Ordway, dated Nov. 16, 1871, for the new State Department,' but which was in reality a transfer of that part of the contract from Ordway to Washburne. By the terms of the arrangement Washburne was to furnish all the capital, do all the work, and get all the pay. The transfer, however, was expressly confined to work for the State Department proper; that is to say, the south front of the building. This arrangement was assented to and recognized by the Secretary of State of the 12th of December.

Work was begun under the contract of Ordway in January, that being as soon as the necessary plans were furnished. From the beginning Washburne received the moneys realized from the cutting and boxing part of the contract. This yielded a large profit, but the price paid for the granite in the rough was less than the cost of quarrying and delivery, and entailed a loss on Andrews, Ordway, & Green. The supervising architect required that the cutting should be done near the place of shipment on the river. This increased somewhat the expenses for transportation, and deprived the firm of some incidental advantages anticipated from having the work done at the quarry. For this reason Washburne, in March, or about that time, gave up to the firm six-fifteenths of the fifteen per cent paid him in addition to the cost of cutting, &c., but retained the rest until he afterwards, during the latter part of the spring or in the summer, transferred all his remaining interest in the contract to Andrews, one of the firm of Andrews, Ordway, & Green. For this he was paid a consideration by Andrews individually. The entire amount paid Washburne and Andrews on account of the percentage on the cost of cutting for the south front was about $94,000, and it nowhere appears that Ordway derived any advantage from this part of his contract with the government except indirectly through the six per cent given up to the firm of Andrews, Ordway, & Green. The cutting for the south front was all finished in March, 1874, and the profits realized and paid over. The last payment on this account was made in February or March of that year.

On the 29th of May, 1872, Ordway entered into a written agreement with Shedd, by which, after reciting his contract with the United States for furnishing and cutting the granite for the State, War, and Navy Department building, and that he was then 'filling said contract as rapidly as he can under government supervision, said contract being filled and performed with others, and especially with the firm of Andrews, Ordway, & Green, of which he is a member,' he conveyed to Shedd 'three-eighths of the profits that accrue to the said Ordway, either individually or as a partner in the firm of Andrews, Ordway, & Green.' He also in the same agreement declared it to be his intention thereby, 'from the income and profits of said government contract, to amply, fully, and finally secure said Shedd, as said trustee, from any and all loss by reason of his said loan of $38,500.' Full provision was made for an examination of accounts by Shedd and for payments by Ordway from time to time out of the profits as they accrued to him from the contract as it was fulfilled.

During the commercial crisis of 1873, the firm of Andrews, Ordway, & Green became financially embarrassed, and borrowed a large amount of money from J. Condit Smith. At his suggestion, the Westham Granite Company was incorporated, in March, 1874, and all the property of the firm, including the government contract, transferred to that company. Stock in the company was given to him for his debt, and to the firm for the estimated value of its property over what was owing him. The stock issued to the firm was held for the payment of outstanding debts, and then for distribution among the partners in proportion to their r spective interests. The amount to which Ordway was entitled has never yet been ascertained. According to the evidence, that matter is still in the hands of a referee, mutually chosen by the parties, for adjustment.

On the 26th of July, 1874, Ordway was directed by the supervising architect to furnish and cut under his contract the granite required for the east wing of the building, an appropriation having been made by Congress for that purpose on the 23d of June previous. The Granite Company, as the successor of Andrews, Ordway, & Green, immediately entered on the performance of this work.

On the 4th of January, 1875, Shedd, then in life, not having been paid any thing by Ordway, commenced this suit for an account of the profits that had already been realized by Ordway from the contract, and for the appointment of a receiver to collect such moneys as should thereafter belong to him, Shedd, under his agreement. Upon the filing of the bill, Ordway was enjoined from making any further collections from the department. Various modifications of this injunction were made from time to time, and on the 7th of July, 1875, Ordway was permitted to collect all but three-eighths of the fifteen per cent on the expenditures for labor, &c., under the cutting part of the contract, and a receiver was appointed to collect and hold this three-eighths to await the result of the suit.

After answer and replication, proof was taken which established the foregoing facts. On the 24th of November, 1875, a decree was entered at a special term declaring the right of Shedd to the moneys then in the hands of the receiver, and to three-eighths of the fifteen per cent payable in the future progress of the work under the part of the contract which related to the cutting, until his debt was fully paid. The receiver was continued for the purpose of making future collections as the money from time to time fell due. From this decree an appeal was taken to the general term. On the 18th of December, 1876, the death of Shedd was suggested on the record, and Goddard, the appellant, his administrator, made complainant in his stead. On the same day a decree was entered affirming that made at the special term. Included in the same entry was an order of the court allowing an appeal to this court on the prayer of Ordway. No bond was ever executed, and nothing further was done under this allowance. On the 22d of December, and during the term, a notice was served on Goddard by Ordway to the effect that he would 'move that the order affirming the decree. . . be set aside, and the case reargued, on the ground that a motion for reargument heretofore made in open court had never been brought up in consultation, or determined by the court, at the time of making said order of affirmance, and that said order of affirmance ought not to have been made in the premises, but was irregularly and inconsiderately pronounced and entered.' On the 30th of December an entry was made on the minutes of the court, to the effect that the appeal which had been allowed was withdrawn by Ordway. On the same day the following entry appears on the journal of the court:--

'And now comes the defendant, and by his counsel, R. T. Merrick, moves the court to vacate the judgment of affirmance heretofore made in the above-entitled cause, and for leave to argue the same before a full bench; and assigns as reason therefor, in addition to reasons heretofore filed, that said cause was heard before only three of the justices, and that the judgment was rendered by only two of the justices, with whom the third did not concur.'

After this entry was made, and before the motion was heard or disposed of, the court adjourned for the term. On the 6th of January, 1877, which was at the next term of the court, it was ordered that the cause be reargued and placed on the calendar of that term. Goddard afterwards moved to vacate this order, because at the time it was made the court had no jurisdiction of the suit or of the parties; and also because the rules of court were n t complied with in respect to the form of the motion and the time of filing. On the 19th of February this motion was overruled, and on the 28th of March, the cause having been reargued, the decree of the special term was reversed, the bill dismissed, and an order made on the receiver to pay over the moneys in his hands, $24,931.72, to the defendant, Ordway, after deducting the receiver's commissions. From that decree Goddard, as administrator, appealed.

The first question presented for our consideration on the argument was as to the jurisdiction of the court below at its general term in March, 1877, to set aside the order of affirmance made at the previous term, and give a new decree dismissing the bill, the motion to vacate the order and for leave to reargue the cause not having been filed until after the affirmance had actually been entered and after an appeal to this court allowed. The objections urged to the jurisdiction were: 1, that a court cannot reverse or annul its final decrees or judgments for errors of fact or law after the term at which they were rendered; 2, that the motion was not either in form or substance such as is required by equity rule 88 of that court for a petition for rehearing; and, 3, that the appeal to this court allowed by the court below on the 18th of December, 1876, took from that court the power to proceed further with the cause, or to entertain a motion to vacate the decree appealed from.

So far as the first objection is concerned, it is sufficient to say that the motion to vacate the order of affirmance and grant a reargument was made to and recognized by the court at the same term the order was entered, and before a final adjournment. This is evident from the fact that the motion was entered on the minutes of the doings of the court for the term. A paper may be filed in the proper office and yet not brought to the attention of the court while sitting in judgment, but when what it calls for appears on the minutes of actual proceedings, it must be presumed that the court, in some form, gave it judicial attention, and that it was presented in some regular way. In the Supreme Court of the District, as we are advised, if any matter in hand is not disposed of at one term, it is deemed to have been continued to the next. Whatever parties are bound to take notice of at one term they must follow to the next, if they are not, in some appropriate form, dismissed from further attendance. In this case the motion to allow a reargument went over as unfinished business, and carried the parties with it. The proceeding was in all material respects like a motion for a new trial filed in time at one term and not disposed of until the next. Under such circumstances, a judgment or decree, although entered in form, does not discharge the parties from their attendance in the cause. They must remain until all questions as to the finality of what has been done are settled. The motion, when entertained, prolongs the suit, and keeps the parties in court until it is passed upon and disposed of in the regular course of proceeding.

The second objection is, as we think, equally untenable. The motion, as made, was nothing more than an application to the court to vacate a decree which had been entered at a former day in the term, improvidently and without sufficient consideration. It was addressed entirely to the discretion of the court, and depended on facts within the knowledge of the justices. It was in no just sense a petition for rehearing, and even if it had been, we should not be inclined to reverse a decree because of what was, under the circumstances, an immaterial departure from technical rules. Allis v. Insurance Company, 97 U.S. 144. The grounds of the application were sufficiently stated, and a verification under oath might well have been omitted, since the records of the court showed every thing that was claimed. In reality, the whole matter resolved itself into the simple question of who should appeal to this court. Ordway would have appealed if the ori inal decree had stood, and Goddard has done so since it was set aside.

The allowance of the appeal to Ordway was a judicial act of the court in term time. The order was entered on the minutes as part of what was done in the cause by the court while in session. In Ex parte Lange (18 Wall. 163), we said that 'the general power of the court over its own judgments, orders, and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable.' Bassett v. United States, 9 Wall. 38; Doss v. Tyack, 14 How. 297. As part of the 'roll of that term,' they are deemed to be 'in the breast of the court during the whole term.' Bac. Abr., tit. Amendment and Jeofail, A. Under this rule, we think it clear that the court had the power during the term, at the request of Ordway, to set aside the order of allowance and thus vacate the appeal which had been granted in his favor. This was done before any adverse rights had intervened. We are unable to see how the allowance of an appeal differs in this respect from any other judicial order made in the cause. If the one is subject to revocation or amendment while the term continues, so, as it seems to us, must be the other.

There is nothing in this which interferes with the rule that where an appeal is allowed all jurisdiction of the suit appealed is transferred to this court. Here the question is whether an appeal was in legal effect allowed. It is true an order of allowance was granted and entered on the minutes of the court. So long as this order continued in operation, it bound the parties; but as it remained subject to the judicial power of the court during the term at which it was entered, its revocation vacated what had been done, and left the decree standing with no appeal allowed. Ex parte Roberts, 15 Wall. 384. Neither one of the parties was finally discharged from the court until the term ended, and each was bound to take notice of whatever was done affecting his interests in the suit until a final adjournment actually took place.

Under these circumstances, we think the case is now here on its merits. The last decree at the general term was the final decree in the cause, and the appeal which has been taken from that decree opens the whole case for our consideration.

Upon the merits the decree below was right. Whatever may have been the original understanding with Shedd as to the security he was to have, it is clear that in the end he got only three-eighths of the profits that accrued to Ordway from his government contract, either individually or as a partner in the firm of Andrews, Ordway, & Green. All previous arrangements were merged in that finally reduced to writing. If the fund in court, therefore, does not in legal effect belong to Ordway, that is to say, does not represent his share of the profits growing out of the contract, it cannot be given to the representative of Shedd.

The testimony shows conclusively that down to the time the decree below was rendered, neither Andrews, Ordway, & Green, nor the Westham Granite Company, had realized any profits that were properly divisible to Ordway. Confessedly, the partnership had made nothing, and was largely in debt when the Granite Company was formed and took an assignment of the contract from the firm. If the company had in fact made any thing, the individual partners in the old firm had not, because the outstanding debts of the firm were to be paid before they could claim any distribution among themselves. The dividends on the stock held for the firm were liable to the payment of the debts before the partners individually were entitled to any thing.

All the profits on the cutting for the south front went to Washburne and his assignee, and never belonged to Ordway. Upon this question the evidence leaves no doubt. But whether that be so or not, nothing growing out of that part of the contract ever came into the hands of the receiver. That work was completed and the profits all received and paid over nearly a year before th § suit was commenced.

As Ordway reserved from his transfer to Andrews, Ordway, & Green only that part of the contract for cutting which had reference to the south front, it follows that the cutting for the east wing passed with the rest of the contract to the firm and its successor, the Granite Company. The percentage payable on that part of the work all belonged to that company, and neither Ordway nor Shedd's representative could claim any part of it individually until it was due to Ordway as profits to be divided. The money collected by the receiver was three-eighths of this percentage. As the contract for the work stood in the name of Ordway at the department, he alone was recognized by the government when payments were made; but in making the collections he acted as the agent of the Granite Company, and was bound to pay over at once to the proper representative of the company every thing that came into his hands in this way. The receiver's title is no better than his would have been if the money had got into his hands. It follows that upon the case as it stands no decree can be rendered in favor of the present complainant for the money now in court.

Although Ordway is the only defendant in the suit, the controversy is about the fund in court. As he was the agent of the Granite Company authorized to make the collections from the government, he may defend the title of his principal. The suit is in effect the same as it would be if the money were now in his hands, and the representative of Shedd was seeking to prevent his paying it over to the company. In such a case it is clear he could show that he was but a trustee, and so, we think, he can in this. If, when our mandate goes down, the court below shall deem it necessary, in order to insure the payment of the money in the hands of the receiver to the Granite Company or its proper representative, that some special order be made in that behalf, that court is hereby authorized to take such action therein as shall seem to be necessary. It is clear from the evidence that the fund does not belong to Ordway, and that its payment to the Granite Company or its successors or assigns should in some form be secured.

Decree affirmed.


text: Talk:Goddard v. Ordway (101 U.S. 745)/Opinion of the Court

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Wolsey v. Chapman

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

The facts are stated in the opinion of the court.

The case was argued by Mr. Galusha Parsons for the appellants, and by Mr. George G. Wright for the appellee.

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

title: Wolsey v. Chapman


text: Talk:Wolsey v. Chapman

title: Talk:Wolsey v. Chapman


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Wolsey v. Chapman/Opinion of the Court

This case presents again for consideration the Des Moines River improvement grant. 9 Stat. 77. It is a suit in equity brought by Chapman, who claims under the river grant, to quiet his title as against Wolsey, whose rights depend on a patent from the State of Iowa granting the lands in dispute as part of lands ceded to the State under the eighth section of the act of Congress passed Sept. 4, 1841, entitled 'An Act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights.' 5 id. 453. That section is as follows:--

'SECT. 8. And be it further enacted, that there shall be granted to each State specified in the first section of this act five hundred thousand acres of land for purposes of internal improvement: Provided, that to each of the said States which has already received grants for said purposes there is hereby granted no more than a quantity of land which shall, together with the amount such State has already received as aforesaid, make five hundred thousand acres, the selections in all of the said States to be made within their limits respectively in such manner as the legislature thereof shall direct; and located in parcels conformably to sectional divisions and subdivisions, of not less than three hundred and twenty acres in any one location, on any public land except such as is or may be reserved from sale by any law o Congress or proclamation of the President of the United States, which said locations may be made at any time after the lands of the United States in said States respectively shall have been surveyed according to existing laws. And there shall be, and hereby is, granted to each new State that shall be hereafter admitted into the Union, upon such admission, so much land as, including such quantity as may have been granted to such State before its admission, and while under territorial government, for purposes of internal improvement as aforesaid, as shall make five hundred thousand acres of land, to be selected and located as aforesaid.'

Sect. 10 granted pre-emption rights in the public lands, but provided that 'no lands included in any reservation, by any treaty, law, or proclamation of the President of the United States, or reserved for salines, or for other purposes; no lands reserved for the support of schools, nor the lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or which may be acquired of the Wyandot tribe of Indians in the State of Ohio, or other Indian reservation to which the title has been or may be extinguished by the United States at any time during the operation of this act; no sections of land reserved to the United States alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement; no sections or fractions of sections included within the limits of any incorporated town; no portions of the public lands which have been selected as the site for a city or town; no parcel or lot of land actually settled and occupied for the purposes of trade and not agriculture; and no lands on which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act.'

At that time Iowa was a Territory, organized under the act of June 12, 1838. Id. 235. On the 8th of August, 1846, Congress passed the act making the Des Moines River grant (9 Stat. 77), the material parts of which are as follows:--

'An Act granting certain lands to the Territory of Iowa, to aid in the improvement of the navigation of the Des Moines River, in said Territory.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that there be, and hereby is, granted to the Territory of Iowa, for the purpose of aiding said Territory to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork (so-called) in said Territory, one equal moiety, in alternate sections, of the public lands (remaining unsold, and not otherwise disposed of, incumbered, or appropriated), in a strip five miles in width on each side of said river, to be selected within said Territory by an agent or agents to be appointed by the governor thereof, subject to the approval of the Secretary of the Treasury of the United States.

'SEC. 2. And be it further enacted, that the lands hereby granted shall not be conveyed or disposed of by said Territory, nor by any State to be formed out of the same, except as said improvements shall progress; that is, the said Territory or State may sell so much of said lands as shall produce the sum of $30,000, and then the sales shall cease until the governor of said Territory or State shall certify the fact to the President of the United States that one-half of said sum has been expended upon said improvements, when the said Territory or State may sell and convey a quantity of the residue of said lands sufficient to replace the amount expended; and thus the sale shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.

'SEC. 4. And be it further enacted, that whenever the Territory of Iowa shall be admitted into the Union as a State, the lands hereby granted for the above purpose shall be and become the property of said State for the purpose contemplated in this act, and no other, provided the legislature of the State of Iowa shall accept the said grant for the said purpose.'

On the 28th of December, 1846, Iowa was admitted into the Union as a State. 9 id. 117. By the Constitution, under which the admission was granted, the 500,000 acres of land to which the State became entitled by the act of 1841 were appropriated to the use of common schools (Const. Iowa, 1846, art. 9; School Fund and Schools, sect. 3), and on the 2d of March, 1849, Congress, by a special act, assented to this appropriation. Id. 349.

On the 17th of October, 1846, the Commissioner of the General Land-Office requested the governor of the Territory to appoint an agent to select the land under the river grant, at the same time intimating that the grant only extended from the Missouri line to the Raccoon Fork of the Des Moines River. On the 17th of December, a few days before the admission of the State, the territorial authorities designated the odd-numbered sections as the lands selected under the grant. The State accepted the grant in form by joint resolution of the General Assembly approved Jan. 9, 1847. On the 24th of February following, the State created a 'Board of Public Works,' to whom were committed the work, construction, and management of the river improvement, and the care, control, sale, disposal, and management of the lands granted the State by the act of 1846. This board was organized Sept. 22, 1847, and on the 17th of February, 1848, the Commissioner of the General Land-Office, in an official communication to the secretary of the board, gave it as the opinion of his office that the grant extended throughout the whole length of the river within the limits of the State. On the 19th of June, 1848, without any notice of a revocation of this opinion, a proclamation was issued by the President, putting in market some of the lands above the Raccoon Fork the title to which would pass to the State if the Commissioner was right in the construction he gave the grant. This led to a correspondence on the subject between the proper officers of the State and the United States, which resulted in the promulgation of an official opinion by the Secretary of the Treasury, bearing date March 2, 1849, to the effect that the grant extended from the Missouri line to the source of the river. In consequence of this opinion, the Commissioner of the General Land-Office, on the 1st of the following June, directed the registers and receivers of the local land-offices to withhold from sale all the odd-numbered sections within five miles on each side of the river above the Raccoon Fork.

Afterwards, the State authorities called on the Commissioner of the General Land-Office for a list of lands above the Raccoon Fork which would fall to the State under this ruling. The list was accordingly made out, and on the 14th of January, 1850, submitted to the Secretary of the Interior for approval; jurisdiction of matters of that kind having before that date been transferred by law from the Treasury to the Interior Department. On the 6th of April, the Secretary returned the list to the land-office with a letter declining to recognize the grant as extending above the Raccoon Fork without the aid of an explanatory act of Congress, but advised that any immediate steps for bringing the lands into market be postponed, in order that Congress might have an opportunity of acting on the matter if it saw fit.

On the 20th of July, 1850, the agent of the State having in charge the school lands and school fund gave notice at the General Land-Office that he had selected the particular piece of land in controversy in this suit as part of the 500,000-acre grant under the act of 1841. Other lands coming within the river grant, if extended above the Raccoon Fork, amounting in the aggregate with this piece to 12,813 51/100 acres, were included in a list of similar selections approved at the Land Department in Washington on the 20th of February, 1851. Two days afterwards, February 22, the Board of Public Works of the State formally demanded of the Secretary of the Interior for the river grant all the alternate odd sections above the fork. On the 26th of July the order of the Secretary of the Interior, under date of April 6, 1850, withholding the disputed lands from sale, was continued in force until the end of the approaching session of Congress, in order to give the State an opportunity of petitioning for an extension of the grant.

On the 29th of October, 1851, the Secretary of the Interior, after consulation with the President and his Cabinet, and pursuant to a decision there made, wrote the Commissioner of the General Land-Office as follows:--

'SIR,-I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month.

'I have reconsidered and carefully reviewed my decision of the 26th July last, and in doing so find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country; and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the State, I am willing to recognize the claim of the State, and to approve the selections without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my approval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the State of Iowa above the Raccoon Fork, as far as the surveys have progressed, or may hereafter he completed and returned.'

The lists were submitted accordingly, and the following indorsement was made thereon by the Secretary:--

'The selections embraced in the within list (No 3) are hereby approved in accordance with the views expressed in may letter of the 29th instant to the Commissioner of the General Land-Office, subject to any rights which may have existed at the time the selections were made known to the land-office by the agents of the State, it being expressly understood that this approval conveys to the State no title to any tract or tracts which may have been sold or otherwise disposed of prior to the receipt by the local land-officers of the letter of the Commissioner of the General Land-Office, communicating the decision of Mr. Secretary Walker, to the effect that the grant extended above the Raccoon Fork.'

No. 3 showed the vacant lands above the Raccoon Fork subject to the claim of the State, and included the particular parcel involved in this suit. On the 16th of March, 1852, the list was forwarded to the several local land-offices as showing the land which fell to the State under the construction given the river grant by the Secretary of the Treasury, March 2, 1849, and by the Secretary of the Interior, Oct. 29, 1851.

On the 20th of August, 1853, the school-fund commissioner of Webster County, under the authority of an act of the General Assembly of the State of the 25th of February, 1847, entitled 'An Act to provide for the management and disposition of the school fund,' contracted to sell to William T. Wolsey the land about which this suit arose. The purchase-money having been paid in full, the governor of the State, on the 20th of December, 1854, issued to Wolsey a patent in the form required to pass title under such a sale. This patent purported on its face to have been granted as and for a conveyance of school lands.

On the 6th of January, 1854, after the contract of sale to Wolsey, but before the issue of the patent, the Commissioner of the General Land-Office formally withdrew the approval by the Land Department of the selection of lands as part o the 500,000-acre grant which fell within the river grant, according to the opinion of the Secretary of the Treasury, March 2, 1849, and the Secretary of the Interior, Oct. 29, 1851. On the 30th of December, 1853, the Secretary of the Interior approved to the State, 'under the act of Aug. 8, 1846, without prejudice to the rights, if any there be, of other parties,' a list of the 12,813 51/100 acres erroneously approved, 20th February, 1851, as lands selected under the act of 1841, 'previous to the adjustment of the grant, and before it was known that they belonged to the State under the Des Moines River grant.'

Until the 17th of December, 1853, the State itself, through its board of public works, carried on the work of improving the river, paying the expense from the proceeds of the sales of the lands included in the river grant. A land-office had also been established for the sale of these lands. On that day the State entered into a contract with one Henry O'Reilly to complete the work. This contract O'Reilly transferred, with the consent of the State, to the Des Moines Navigation and Railroad Company, a New York corporation, and on the 9th of June, 1854, in consequence of this transfer, a new contract was entered into between the State and the corporation for the purpose of simplifying and more fully explaining the original contracts and agreements. By the new contract the State agreed to convey to the company 'all of the lands donated to the State of Iowa for the improvement of the Des Moines River by act of Congress of Aug. 8, 1846, which the said party of the second part' (the State) 'had not sold up to the twenty-third day of December, 1853.' This was the date at which it was supposed the sale of the lands could be stopped at the State land-office after the contract with O'Reilly.

On the 15th of May, 1856, Congress passed an act (11 Stat. 9) granting to the State of Iowa, to aid in the construction of certain railroads, every alternate section of land designated by odd numbers for six sections in width on each side of each of the several roads. The granting clause of the act contained, however, the following proviso:--

'And provided further, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be and the same are hereby reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.'

In 1856, the Commissioner of the General Land-Office decided not to certify any more lands to the State under the river grant, and thereupon the Navigation Company suspended work on the improvement. This led to a settlement between the State and the company, under the authority of a joint resolution of the General Assembly for that purpose, passed March 22, 1858, by which the State agreed to convey to the Navigation Company all the lands contained in the river grant which had been approved and certified to the State by the general government, 'excepting all lands sold or conveyed, or agreed to be sold or conveyed by the State of Iowa, by its officers and agents, prior to the twenty-third day of December, 1853, under said grant.' Afterwards, May 3, 1858, the governor of the State executed to the company a deed conveying the lands now in controversy, with others, by a specific description of sections, townships, and ranges; and on the 18th of the same month he executed another deed, which purported on its face to have been made pursuant to the joint resolution of the General Assembly authorizing the settlement with the company, and described the lands in the exact language of general description used in the resolution.

Chapman, the plaintiff below, has all the title to the lands invo ved in this suit which passed in this way to the Navigation Company.

At the December Term, 1859, and during the month of April, 1860, this court decided, in The Dubuque & Pacific Railroad Company v. Litchfield (23 How. 66), that the river grant as originally made did not extend above the Raccoon Fork, and thereupon, on the 18th of May, 1860, the Commissioner of the General Land-Office sent to the registers and receivers of the local land-offices a notice to be promulgated, as follows:--

'Notice is hereby given that the lands along the Des Moines River, in Iowa, and within the claimed limits of the Des Moines grant in that State, above the month of the Raccoon Fork of said river, which have been reserved from sale heretofore on account of the claim of the State thereto, will continue reserved for the time being from sale or from location by any species of scrip or warrants, notwithstanding the recent decision of the Supreme Court against the claim.

'This action is deemed necessary to afford time for Congress to consider, upon memorial or otherwise, the case of actual, bona fide settlers holding under titles from the State, and to make such provision, by confirmation or adjustment of the claims of such settlers, as may appear to be right and proper.'

On the 2d of March, 1861 (12 Stat. 251), Congress passed the following joint resolution:--

'Joint Resolution to quiet title to lands in the State of Iowa.

'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that all the title which the United States still retain in the tracts of land along the Des Moines River, and above the mouth of the Raccoon Fork thereof, in the State of Iowa, which have been certified to said State improperly by the Department of the Interior as part of the grant by act of Congress, approved Aug. 8, 1846, and which is now held by bona fide purchaser under the State of Iowa, be and the same is hereby relinquished to the State of Iowa.'

And on the 12th of July, 1862 (id. 543), the following act was passed:--

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the grant of lands to the then Territory of Iowa, for the improvement of the Des Moines River, made by the act of Aug. 8, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon Fork and the northern boundary of said State; such lands are to be held and applied in accordance with provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines, & Minnesota Railroad, in accordance with the provisions of the act of the General Assembly of the State of Iowa, approved March 22, 1858; and if any of said lands shall have been sold or otherwise disposed of by the United States before the passage of this act, excepting those released by the United States to the grantees of the State of Iowa, under the joint resolution of March 2, 1862, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within said State to be certified in lieu thereof: Provided, that if the said State shall have sold and conveyed any portion of the lands lying within the limits of this grant, the title of which has proved invalid, any lands which shall be certified to said State in lieu thereof, by virtue of the provisions of this act, shall inure to and be held as a trust fund for the benefit of the person or persons respectively whose titles shall have failed as aforesaid.'

After the passage of the joint resolution of March 2, 1861, the Commissioner of the General Land-Office called on the governor of the State for a list of the tracts of land 'held by bona fide purchasers of the State of Iowa' on that date. In response to this request the governor and land commissioner of the State, on t e 20th of November, 1862, furnished the list required, and among others included the tracts granted to the Navigation Company on the settlement made with that company under the joint resolution of March 22, 1858. This list was filed in the General Land-Office Dec. 1, 1862.

On the 30th of March, 1866, an act was passed by the General Assembly of Iowa providing for the adjustment of certain land claims with the general government. By this act Josiah A. Harvey, the register of the State land-office, was appointed a commissioner to adjust the matters in dispute, and especially the excess of land which had been certified to the State above what it was entitled to receive under the act of Sept. 4, 1841, and the lands falling due under the joint resolution of March 2, 1861, and the act of July 12, 1862.

This act contained the following section:--

'SECT. 2. Said commissioner shall proceed to Washington City, and present said claims to the Department of the Interior, and urge the same to settlement as early and as speedily as may be consistent with the interests of the State, and his is hereby authorized to adjust the said excess of the 500,000-acre grant by permitting the United States to retain, out of the indemnity land falling to the State under said act of Congress of July 12, 1862, an amount equivalent to such excess: Provided, that nothing herein contained shall be construed to be a relinquishment of the claim of the State under the said 500,000-acre grant to the 12,813 55/100 acres selected as a part of such grant, and subsequently rejected from a supposed conflict with the act of Congress approved August, 1846, known as the Des Moines River grant; and the said commissioner is hereby instructed to secure a restoration of said selections as a part of the 500,000-acre grant, and a confirmation of the title of the State thereto, as a part of such grant.' Under this authority, an adjustment was had with the United States, by which it appeared that the State was entitled to 558,000 96/100 acres, under the river grant, and that under the 500,000-acre grant it had received certificates for 22,660 5/100 acres more than it was entitled to if the 12,813 51/100 acres, also certified under the river grant, was not included, and 35,473 54/100 if it was. The excess was charged to the account of the river grant, and a balance struck accordingly. The Navigation and Railroad Company was not a party to this settlement. The adjustment was ratified by an act of the General Assembly of the State passed March 31, 1868.

At the December Term, 1866, of this court, it was decided, in the case of Wolcott v. Des Monies Company (5 Wall. 681), that the lands included in the river grant above the Fork, as finally settled by Congress, did not pass to the State for the benefit of the railroad companies under the act of 1856, because, at the time of the passage of that act, the lands were reserved for the purpose of aiding in the improvement of the Des Moines River, and, therefore, fell within the proviso limiting the grant to lands not so reserved.

At its December Term, 1869, this court decided in Riley v. Wells, No. 397 on the docket of the term, but not reported, that the lands above the Raccoon Fork were so far 'reserved' by the action of the officers of the United States as not to be subject to pre-emption in 1855, under the tenth section of the act of 1841.

On the 3d of March, 1871, Congress passed an act (16 Stat. 582), ratifying and confirming to the State of Iowa and its grantees the title to the lands, in accordance with the adjustment made in 1866; but expressly provided 'that nothing in this act contained shall be so construed as to affect adversely any existing legal rights, or the rights of any party claiming title, or the right to acquire title, to any part of said lands under the provisions of the so-called homestead or pre-empted [pre-emption] laws of the United States, or claiming any part thereof as swamp lands.

At the December Term, 1872, of this court, after full con ideration, the cases of Wolcott v. Des Moines Company and Riley v. Wells were distinctly affirmed in Williams v. Baker (17 Wall. 144); and in Homestead Company v. Valley Railroad (id. 153), it was said to be 'no longer an open question that neither the State of Iowa, nor the railroad companies for whose benefit the grant of 1856 was made, took any title by that act to the lands claimed to belong to the Des Moines River grant of 1846, and that the joint resolution of 2d of March, 1861, and act of July 12, 1862, transferred the title from the United States and vested it in the State of Iowa for the use of its grantees under the river grant.'

The State voluntarily made itself a party to this suit for the purpose of defending its title to the lands in controversy as part of its school lands. An act of the General Assembly was passed March 12, 1874, authorizing this to be done.

Upon this state of facts the court below granted the relief asked by the bill and sustained the title of Chapman. To reverse that decree this appeal was taken.

The following propositions were relied upon in the argument for the appellants:--

1. That the lands in question were not 'reserved' lands within the meaning of the exception in sect. 8 of the act of 1841.

2. That Chapman, claiming as he did under a patent from the State later in date than that to Wolsey, cannot impeach Wolsey's title in this action.

3. That Wolsey was such a bona fide purchaser from the State that the grant of Congress under the joint resolution of March 2, 1861, inured to his benefit.

4. That as the lands had been sold by the State previous to Dec. 23, 1853, no title passed to the Des Moines Navigation and Railroad Company under the settlement made upon the authority of the joint resolution of the General Assembly of March 22, 1858.

5. That by the adjustment and settlement between the State and the United States in 1866, the title of the State under the 5000,000-acre grant, and as part of the school lands, was confirmed.

These several propositions will be considered in their order.

1. As to the right of the State, on the 20th of February, 1851, to select these lands as part of the 500,000-acre grant.

It has been settled in this court that the title of the Des Moines Company is good as against the State and railroad companies under the railroad grant of 1856, and as against preemptioners after 1855 under the act of 1841. We are not asked to disturb these rulings, and should not be inclined to do so if we were. It is contended, however, that the language used in the eighth section of the act of 1841, defining the reservation, is so different from that of the tenth section, under consideration in Riley v. Wells, and from that of the act of 1856, involved in Wolcott's case and the cases reported in 17th Wallace, as to render our former decisions of no controlling authority on the question now to be determined. We do not so understand the effect of those decisions. Whatever might be the force of such an argument if the cases involving the act of 1856 stood alone, it seems to us impossible to distinguish the question now presented from that disposed of in Riley v. Wells. In that case the language under consideration was, 'lands included in any reservation, by any treaty, law, or proclamation of the President of the United States, or reserved for salines, or for other purposes;' and in this, 'any public land, except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States.' In the act of 1856 the corresponding language is, 'any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever.'

It is conceded that the lands in controversy were actually reserved from sale by competent authority when the selection was made under the act of 1841. They were reserved also in consequence of the act of 1846. The proper executive department of the government had determined that, because of doubts about the extent and operation of that act, nothing should be done to impair the rights of the State above the Raccoon Fork until the differences were settled, either by Congress or judicial decision. For that purpose an authoritative order was issued, directing the local land-officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in Riley v. Wells, was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, notwithstanding it was afterwards found that the law, by reason of which this action was taken, did not contemplate such a withdrawal. This, it is agreed, settles the present case, unless that decision resulted from the addition of the words, 'reserved for saline or for other purposes,' which appear in the tenth section and not in the eighth.

The object of all interpretation is to ascertain the intent of the law-makers,-to get at the meaning which they wished their language to convey. A critical examination of particular words is never necessary except in cases of doubt. Sects. 8 and 10 are parts of the same act. By one, a grant of public lands to certain States for certain purposes was provided for, and by the other, pre-emption rights were given to individual citizens. Both had reference to public lands, and gave the respective beneficiaries the power of making their own selections. There seems to be no good reason why the selections of the pre-emptioner should be restricted within narrower limits than those of the State, and we cannot believe it was the intention of Congress to give a State the power to take lands under sect. 8, which had actually been reserved by the United States for any purpose whatever. It is true, in that section only reservation by a law of Congress or the proclamation of the President are specially spoken of, but it must have been the intention to include in this all lawful reservations. In the tenth section a reservation by treaty is specially mentioned; but we can hardly believe it would be seriously contended that, under the eighth section, a State could select lands reserved by a treaty because the word 'treaty' was omitted in that section

The truth is, there can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the Executive Department of the government; and the acts of the heads of departments, within the scope of their powers, are in law the acts of the President. In Wilcox v. Jackson (13 Pet. 498), the question was directly presented whether a reservation from sale by an order from the War Department was a reservation 'by order of the President,' and the court held it was. The language of the statute then under consideration was (p. 511), 'or which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever;' and in the opinion of the court it is said (p. 513): 'Now, although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the War Department. Hence we consider the act of the War Department in requiring the reservation to be made, as being in legal contemplation the act of the President; and consequently that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress.' That case is conclusive of this, unless the word 'proclamation,' as used in the present statute, has a signification so different from 'order' in the other as to raise a material distinct on between the two cases. We see no such intention on the part of Congress. A proclamation by the President, reserving lands from sale, is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the President himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson that such an order sent out from the appropriate executive department in the regular course of business is the legal equivalent of the President's own order to the same effect. It was, therefore, as we think, such a proclamation by the President reserving the lands from sale as was contemplated by the act. This being the case, under our former decisions, no title passed to the State by the approval of the selection of the lands in dispute under the act of 1841. Being lawfully reserved from sale at the time of the selection, they were not included in the grant which that act provided for.

2. As to the right of Chapman to question Wolsey's title.

Of this we entertain no doubt. If the State had no title when the patent issued to Wolsey, he took nothing by the grant. No question of estoppel by warranty arises, neither does the after-acquired title inure to the benefit of Wolsey, because when the United States made the grant in 1861 it was for the benefit of bona fide purchasers from the State, under the grant of 1846. This is evident as well from the tenor of the joint resolution of 1861 as from the act of 1862. The relinquishment under the joint resolution is of all the title which the United States retained in the tracts of land above the Raccoon Fork 'which have been certified to said State improperly by the Department of the Interior as part of the grant by the act of Congress approved Aug. 8, 1846, and which is now held by bona fide purchasers under the State of Iowa;' and by the act of 1862 the lands are in terms to be held and applied in accordance with the provisions of the original grant. This legislation, being in pari materia, is to be construed together, and manifests most unmistakably an intention on the part of Congress to put the State and bona fide purchasers from the State just where they would be if the original act had itself granted all that was finally given for the river improvement. The original grant contemplated sales by the State in execution of the trust created, and the bona fide purchasers referred to must have been purchasers at such sales. This being so, the grant when finally made inured to the benefit of Chapman rather than Wolsey. Neither took title from the State at first, and as the final grant from the United States was in legal effect to Chapman or his grantors, he has the right to have that fact declared by a judicial decision against Wolsey, who sets up his adverse claim.

3. As to the alleged bona fide purchase of Wolsey.

This has been substantially disposed of by what we have already said. He purchased under the school-land grant. His patent so in terms declares. Consequently he cannot be a purchaser under the river grant, to confirm which, as has been seen, the legislation of 1861 and 1862 was had.

4. As to the adjustment of 1866.

We are clearly of the opinion that this adjustment settled no rights as between any other parties than the State and the United States. The conflicting claimants were not parties to that settlement. The agent of the State was instructed not to relinquish the claim of the State under the school-land grant, and he did not do so. The United States simply applied themselves to the adjustment of quantities under all the grants, and whenever they did speak were careful to say that nothing which was done should be construed as affecting adversely any existing rights. The result was to leave the whole question to the ultimate determination of the courts.

5. As to the right of the governor to convey the lands in question to the Des Moines Company under the joint resolution of March 22, 1858, authorizing a conveyance upon settlement with the company.

The original contract between the State and the company contemplated a conveyance of all the river-grant lands not sold by the State on the 23d of December, 1853. This should be construed in the light of the fact that the act making the river grant provided for sales of the granted lands to furnish the means of making the required improvement, and if this contract stood alone, we should have no hesitation in holding that the sales referred to were such as had been made in the execution of the trust under which the lands were held, but if there could be any doubt on that subject, the resolution which authorized the settlement removes all grounds for discussion. By that resolution, all the lands which had before that time been approved and certified to the State under the river grant were to be conveyed to the company, excepting such as had been sold or agreed to be sold by the officers of the State prior to Dec. 23, 1853, 'under said grant.' The land now in controversy had been so certified, and it had also been sold under that grant. Therefore, the governor was expressly authorized to include it in his conveyance.

This disposes of all the questions urged upon our consideration, and the decree of the court below is consequently

Affirmed.

title: Wolsey v. Chapman/Opinion of the Court


text: Talk:Wolsey v. Chapman/Opinion of the Court


text:
Litchfield v. County of Webster

APPEALS from the Circuit Court of the United States for the District of Iowa.

Litchfield filed, Sept. 29, 1873, his bill of complaint against the county of Webster, Iowa, and Hutchinson, its treasurer, seeking to enjoin the collection of the taxes levied for 1859, 1860, 1861, 1862, 1863, 1864, 1865, and 1866 on lands whereof he claimed to be the owner. They amount to 32,602 92/100 acres, and are situate in that county in the alternate odd-numbered sections, within five miles of that part of the Des Moines River which is above the Raccoon Fork.

The principal of the taxes, when the case was submitted to the court below, was $10,174.76, and the penalty claimed for the non-payment of them, $64,235.41, making a total of $74,410.17.

These lands are a portion of those, which gave rise to a long protracted controversy, of which Wolsey v. Chapman (supra, p. 755) furnishes a complete history.

The facts which this suit involves are stated with sufficient fulness in the opinion of the court.

The court below, considering the penalties prescribed by the revenue laws of Iowa, as in the nature of interest rather than as statutory penalties proper, held that the complainant, by reason of the acts of the State and its officers, was entitled to relief upon his paying the full amount of taxes from 1862 to 1866 inclusive, with annual interest thereon at the rate of six per cent; and that the lands were not subject to taxation for the preceding years. A decree was entered accordingly, and each party appealed.

Mr. George G. Wright for Litchfield.

Mr. John F. Duncombe, contra.

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

title: Litchfield v. County of Webster


text: Talk:Litchfield v. County of Webster

title: Talk:Litchfield v. County of Webster


text:
Litchfield v. County of Webster/Opinion of the Court

The primary question to be decided in this case is as to the time when the lands which passed to the bona fide purchasers from the State of Iowa under the joint resolution of Congress approved March 2, 1861 (12 Stat. 251), became taxable by the laws of the State. The controversy is about taxes assessed for the years 1859, 1860, 1861, 1862, 1863, 1864, 1865, and 1866.

The facts affecting the title are fully stated in Wolsey v. Chapman (supra, p. 755), where we held, following the principles settled in Dubuque  Pacific Railroad Co. v. Litchfield (23 How. 66), Wolcott v. Des Moines Company (5 Wall. 681), Riley v. Wells, not reported, Williams v. Baker (17 Wall. 144), and Homestead Company v. Valley Railroad (id. 153), that the United States continued to own the lands until the adoption of the joint resolution. No lands were included in the original river grant of 1846, except those below the Raccoon Fork. While on account of the action of the Executive Department of the general government those above the Fork were reserved from sale and did not pass to the State when selected as school lands under the act of 1841, or as railroad lands by the grant of 1856, and were not open to pre-emption entry, they were not actually donated by the United States to the State, or to the purchasers from her, until the joint resolution was adopted. The grant made by that resolution was just as much an original grant as if the act of 1846 had never been passed. The order of the Executive Department, reserving them from sale, neither transferred any title to, nor created any interest in, the State. It simply retained the ownership in the United States. While the subsequent gift was undoubtedly induced by what had happened before, the United States, until it was made, continued to be the proprietor of the lands, both in law and in equity. Such being the case, they were not taxable before March 2, 1861. They, down to that time, actually belonged to the United States, and no one else had any interest whatever in them.

This disposes of the taxes for the years 1859 and 1860, but another question arises as to those of 1861. Under the revenue laws of Iowa, in force at that time, government lands entered or located, or lands purchased from the State, could not be taxed for the year in which the entry, location, or purchase was made. Laws of Iowa, Rev. 1860, p. 110, sect. 711, par. 7. In The McGregor & M. Railroad Co. v. Brown (39 Iowa, 655), this was held to mean that government lands were not taxable until the next year after a patent could be demanded for them. To the same general effect are Iowa Falls & Sioux City Railroad v. Cherokee County, 37 Iowa, 483; Goodrich v. Beaman, id. 563; Iowa Falls & Sioux City Railroad v. Woodbury County, 38 id. 498. The revenue year of the State for 1861 commenced before March. It is clear, therefore, that the lands were not taxable for that year. They were neither entered, located, purchased from the State, nor patented, within the meaning of the revenue laws, until then.

We think, however, that for the year 1862 and thereafter they were taxable. By the joint resolution, Congress relinquished all the title the United States then retained to the lands which had before that time been certified by the Department of the Interior as part of the river grant, and which were held by bona fide purchasers under the State. No further conveyance was necessary to complete the transfer, and the description was sufficient to identify the property. The title thus relinquished inured at once to the benefit of the purchasers for whose use the relinquishment was made. All the lands involved in this suit had been certified, and Litchfield, or those under whom he claims, were bona fide purchasers from the State. It matters not, so far as this branch of the case is concerned, that at that time there were doubts as to whether the United States retained any title which could pass under the resolution. That question has now been settled in favor of Litchfield, and it has also been decided that after the resolution went into effect the United States had no longer any interest in the property, legal or equitable. It became private property, and as such subject to taxation under the revenue laws of the State.

It only remains to consider whether, under the circumstances of this case, it is within the power of a court of equity to enjoin the collection of the interest or penalty which the revenue laws of the State require the trea urer of the county to collect in case taxes legally assessed are not paid within the time fixed by law. The statutes regulating this matter are as follows:--

'SECT. 759. On the first day of February, the unpaid taxes, of whatever description, for the preceding year shall become delinquent, and shall draw interest, as hereinafter provided;. ..

'SECT. 760. The treasurer shall continue to receive taxes after they have become delinquent, until collected by distress and sale; but if they are not paid before the 1st of March, he shall collect as a penalty for non-payment, from each tax-payer so delinquent, one per cent of the amount of his tax additional, and if not paid before the first day of April, he shall collect another one per cent additional, and so for each full month which shall expire before the tax shall have been paid. The treasurer shall, in all cases, make out and deliver to the tax-payer a receipt for taxes paid, stating the time of payment, the description of the land, the amount of each kind of tax, the interest on each, and costs, if any, giving a separate receipt for each year; and shall make the proper entries of such payments in the books of his office, and such receipt shall be in full for his taxes that year;. . .'

By sect. 761 the clerk of the county board of supervisors is required to keep full and complete accounts with the county treasurer, and, amomg other things, to charge him with 'interest on delinquent taxes,' and 'on the first day of each month ascertain the amount of delinquent and unpaid taxes of all classes on said day, and charge said treasurer in said account with one per cent on the amount thereof to be collected by him, as provided in sect. 52 [sect. 760] of this act.' Laws of Iowa, Rev. 1860, pp. 118, 119. On the first day of October in each year the treasurer is required to offer at public sale all the lands on which the taxes for the previous year had not been paid. Of this sale notice was to be given by advertisement. Sect. 763, p. 119.

It appears from the agreed statement of the parties that the lands about which this controversy arises amount in the aggregate to 32,602 92/100 acres. Of this, 3,301 acres are part of the school lands selected by the State under the act of 1841, the particulars of which appear in Wolsey v. Chapman (supra), and about 17,000 acres fall within the limits of the railroad grant of 1856, also referred to in that case. In respect to the school lands, it appears that the State has at all times claimed title adverse to that of Litchfield and his grantors. In the adjustment of the controversies with the United States, as was seen in that case, the agent acting on behalf of the State was specifically required not to relinquish any claim of the State to its selections under the act of 1841; and even at the present term of this court the State has appeared here as a litigant, asserting its own title and that of its grantees as superior and paramount to that of Litchfield.

As to the railroad grant of 1856, the agreed statement shows that on the demand of the State the 17,000 acres now in controversy were certified for the benefit of the Dubuque and Pacific Railroad Company. This claim on the part of the State was maintained and constantly asserted adversely to Litchfield until the case of Wolcott v. Des Moines Company (5 Wall. 681) was decided in this court at the December Term, 1866. That decision settled the dispute as to these lands, and from that time Litchfield has paid all taxes as they were annually assessed.

The State has never claimed adversely to Litchfield any portion of the remaining 12,000 acres, but the United States maintained that the title did not pass by the joint resolution of March 2, 1861, so as to cut off pre-emption and homestead entries. That question remained open until the December Term, 1869, of this court, when it was settled in the case of Riley v. Wells. Until then, or, at least, until the adjustment between the United States and the State, in 1866, the tit e of the navigation company and its grantees to this portion of its lands was disputed by the United States, and sales conflicting with those of the navigation company were made at the government land-offices.

On the 21st of September, 1860, the treasurer and recorder of Webster County wrote to the agent of the navigation company, the grantor of Litchfield, to the effect that the lands were on the tax-book, but that until the title was adjusted they would not be advertised for sale. Before that time, on the 14th of June, 1860, the auditor of state wrote the auditors of the several counties in which the disputed lands were situated, as follows:--

'We conclude, in view of the so-called river lands, and the further question as to their being liable to tax, that it would be well not to offer them for sale for the taxes until these matters are determined or adjusted in some manner. There are two questions in regard to them. Firstly, has the State any title to them under the river grant? which it is reported has been decided in the negative, but of which we have no official information; 2d, whether they are taxable prior to 1859 as the property of the river company or their grantees. The last question I thought had been decided by our courts, but learn from Attorney-General Rice that there is some doubt about it. Upon the whole, it is thought best not to sell at present, lest it may lead to unnecessary trouble and expense.'

It also appears from the statement of facts that during the years 1863, 1864, 1865, and 1866 the taxes charged against the property were in some particulars in excess of what the law allowed. No person was designated on the tax-book as owner. Any one could pay the taxes and get a receipt. If one of the contesting claimants paid them supposing the lands were his, he could not, if he finally failed to maintain his title, recover from the real owner what he thus advanced. We so held in Homestead Company v. Valley Railroad, 17 Wall. 153.

It thus appears that while Litchfield or his grantor was in reality the owner of the lands from 1862 to 1866, and bound to pay the taxes for those years as assessed, the State, from which the taxing power came, disputed his title and set up an adverse claim in its own right to something more than 20,000 acres. At the same time, the United States disputed his ownership of the remaining 12,000 acres. All this was known to the State authorities, and in view of the facts the State, by its proper officer, gave notice to the parties in interest that the lands would be put on the annual tax-books and charged with the taxes the owner should pay, if the title had passed out of the United States or the State, in law or in equity, but that, to avoid 'unnecessary trouble and expense,' no legal steps would be taken to enforce the collection 'until the title was adjusted.' This we understand to be the legal effect of the instructions of the auditor of state to the treasurers of the several counties in which the disputed lands were situated, and the communication from the treasurer of Webster County to the agent of the navigation company, made while the tax-books of 1859 and 1860 were in his hands for collection. As soon as the title was adjusted, and even before, Litchfield or those under whom he claims commenced the payment of the annual taxes as they fell due, and offered to pay those of 1862, 1863, 1864, 1865, and 1866, with interest at the rate allowed by law for delay in the payment of ordinary debts; but the treasurer declined to receive less than the statutory interest or penalty, unless the taxes of 1859, 1860, and 1861 were included. Although the lands were advertised for sale in 1862 and annually thereafter, they were purposely withheld from sale until this suit was commenced.

Under these circumstances, we think equity may relieve against that part of the statutory interest which is in the nature of a penalty. This provision was undoubtedly made to secure promptness in the payment of taxes when actually due and demandable. It was evidently n t intended so much as punishment for non-payment as compensation for delay. In all parts of the statute, except sect. 760, it is spoken of as interest. In one place in that section it is termed a penalty, but in another referred to as interest. The amount increases as the time of payment is put off. Now it seems clear to us that if a State, under whose authority a tax is levied, sets up a title in itself to the property taxed adverse to that of the true owner, and, to save 'unnecessary trouble and expense,' forbears to enforce the collection until the 'title is adjusted,' no claim can properly be made for extraordinary compensation on account of a delay in payment of the tax which may fairly be said to have been brought about by its own wrongful acts. Under the circumstances, Litchfield and his grantor might well have supposed that the taxes as charged were not to be treated as 'delinquent,' until in some form it had been determined whether the lands taxed were in law taxable. It now appears that the adverse claims of the State and the United States were unjust, and that Litchfield is bound for the payment of the taxes of 1862 and thereafter. He, therefore, actually owes the money called for by the taxes, and may properly be charged with such interest after the taxes became due as is by law payable on other money obligations; but the extraordinary compensation given by the statute for delay in payment of taxes charged on the tax-books, and in the regular process of collection, occupies a different position. It is an elementary principle in equity jurisprudence, that if money is lying dead to meet an obligation, and delay in its payment is caused by the fault of him to whom it is to be paid, interest during the delay is not recoverable. Here the delay was caused by the improper interference of the State and the United States with the title. Litchfield himself has been guilty of no fraud or wilful default. The State has voluntarily abstained from enforcing the collection because of doubts about its right to do so, and Litchfield has had the use of his money while the dispute remained unsettled. As soon as the title was adjusted he offered to pay what was actually due, with ordinary interest; and this was refused. Under these circumstances, we think the court below was right in enjoining the collection of all penalty or interest in excess of six per cent per annum. In Stryker v. Polk County (22 Iowa, 137), there is a strong intimation that in a case like this such relief might be granted. None of the objections which were found to granting the injunction asked for in that case exist here, and it is clearly made to appear that the action of the State affected the title of this plaintiff prejudicially. Such a case was made by the bill, and established by the evidence. It may fairly be inferred from what is said in Litchfield v. County of Hamilton (40 Iowa, 66), that in such a case the courts of the State would afford the remedy.

Although taxes in Iowa are levied and collected by the counties, all is done under the authority of the State, and the counties are charged with whatever is done by the State affecting the rights of the tax-payer. No complaint is made by Litchfield of the amount found due from him by the court below, if the decree is in other respects right, as we find it to be.

Decree affirmed, each party to pay the costs of his own appeal.

NOTE.-In Litchfield v. County of Hamilton, error to the Supreme Court of the State of Iowa, which was submitted on printed arguments by Mr. George G. Wright for the plaintiff in error, and by Mr. Daniel D. Chase for the defendants in error.

MR. CHIEF JUSTICE WAITE, in delivering the opinion of the court, remarked, that the only Federal question presented was whether the lands in Hamilton County, which Litchfield held by the same title he did those in Webster County, involved in the preceding case, were taxable for the years 1859, 1860, 1861, 1862, 1863, 1864, and 1865. For the reasons stated in the o her case, the court held that the taxes for 1859, 1860, and 1861 were illegal, and their collection should be enjoined, but that those for 1862 and the following years were properly collectible. The court below decided that they were legally assessed for all the years, and decreed that they be paid in full, with all interest, penalties, and costs. The liability of Litchfield for interest and penalties after 1861 did not present any Federal question.

The decree of the State court was reversed, and the cause remanded with directions to enjoin the collection of all taxes and charges on the lands in question for the years 1859, 1860, and 1861, but with leave to enter such further decree in reference to the taxes of 1862 and thereafter as the court should be advised might be proper under the circumstances.


text: Talk:Litchfield v. County of Webster/Opinion of the Court


text: Litchfield v. Hamilton County

title: Litchfield v. Hamilton County


text: Talk:Litchfield v. Hamilton County

title: Talk:Litchfield v. Hamilton County


text:
Litchfield v. Hamilton County/Opinion of the Court

-In Litchfield v. County of Hamilton, error to the Supreme Court of the State of Iowa, which was submitted on printed arguments by Mr. George G. Wright for the plaintiff in error, and by Mr. Daniel D. Chase for the defendants in error.

MR. CHIEF JUSTICE WAITE, in delivering the opinion of the court, remarked, that the only Federal question presented was whether the lands in Hamilton County, which Litchfield held by the same title he did those in Webster County, involved in the preceding case, were taxable for the years 1859, 1860, 1861, 1862, 1863, 1864, and 1865. For the reasons stated in the other case, the court held that the taxes for 1859, 1860, and 1861 were illegal, and their collection should be enjoined, but that those for 1862 and the following years were properly collectible. The court below decided that they were legally assessed for all the years, and decreed that they be paid in full, with all interest, penalties, and costs. The liability of Litchfield for interest and penalties after 1861 did not present any Federal question.

The decree of the State court was reversed, and the cause remanded with directions to enjoin the collection of all taxes and charges on the lands in question for the years 1859, 1860, and 1861, but with leave to enter such further decree in reference to the taxes of 1862 and thereafter as the court should be advised might be proper under the circumstances.


text: Talk:Litchfield v. Hamilton County/Opinion of the Court


text:
Young v. Bradley

APPEAL from the Supreme Court of the District of Columbia.

William A. Bradley, of the city of Washington, died in 1867, leaving a last will and testament, as follows:--

'I, William A. Bradley, of the city of Washington, being of sound disposing mind, memory, and understanding, do make and publish this my last will and testament, hereby revoking all and every other will heretofore made by me.

'Item first. After the payment of my just debts and funeral expenses by my executors hereinafter named, I give, devise, and bequeath all of my estate, real, personal, and mixed, of whatever kind it may be, and wheresoever situated, to my son, William A. Bradley, Jr., and my cousin, A. Thomas Bradley, their heirs, executors, and administrators, the survivor of them, his heirs, executors, and administrators, in trust, first, to set apart the house in which I now reside, on New York Avenue, in the city of Washington, together with all and singular the household effects, including pictures, plate, books, and other chattels now therein, or therein at the time of my death, to my dear wife, to be held exclusively by her during her natural life; and out of the net income derived from my said estate of every sort to pay to her one equal third part annually, or quarter-yearly, as she may prefer, so long as she shall live.

'Next, I direct my said trustees, and the survivor of them, to divide all of my said estate immediately after my death, including that which is real, personal, or mixed, into four equal parts, as near as in their or his judgment and valuation can be done, and if they cannot agree they shall § lect a competent disinterested third to aid them in such division and valuation, and the decision of any two of said three persons shall determine said division and valuation; and of these parts my said trustees, or said survivor, shall allot one part to my said son, William A. Bradley, Jr.; one part to the children of my said son, now or hereafter born in lawful wedlock; one part to my daughter, Jeanette H. Linton; and one part to my daughter Sidney T. Edelin, whose portion shall embrace the property owned by me situated in Corning, Steuben County, in the State of New York, and known as and termed in my family the 'Corning property;' and if either or both of my said daughters die without issue, either before or after my death, her or their said fourth parts shall go to the children of my said son now and hereafter born, share and share alike, subject as to Sidney's portion to the subsequent provisions in this will.

'Next, upon the death of my said wife, I direct my said trustees, and the survivor of them, to add to the parts set apart to my said daughters the house specially set apart for my said wife for life, the same being an equal charge upon their portions during her said life, and charging them on their said parts each five thousand dollars for their respective interest in said property; and they or the survivor of my said trustees shall also take into possession the said household effects and other chattels, and make, according to his or their judgments, an equal distribution of the same in kind as to the whole, or in part as to some, and in the proceeds of sales as to others, among the parties entitled to take real estate under this my will, and in the same proportions.

'Next, if my said daughter Sidney T. dies before her present husband, and he survives me, and she leaves no issue, then I direct my said trustee, and the survivor of them, to convey to said Sidney T.'s husband, Dr. Alfred Edelin in fee-simple, that part of my estate known as aforesaid as the 'Corning property.'

'Next, I direct my said trustees, and the survivor of them, to hold the portions my said daughters receive under this my will, in trust, to and for their respective, sole, and separate use, as if femes sole, and never married, free from the control of any present or future husbands they or either of them may ever have, and not to be in any manner subject to the control or liable for the debts of such husbands for and during their respective natural lives; and if either of them dies before or after me leaving issue, such issue shall have the mother's part, share and share alike, to be held in trust for them by my said trustees and the survivor of them, until the youngest of such issue shall attain the age of twenty years, or in the discretion of my said trustees and the survivor it may appear best to terminate said trusts; and in the absence of issue of either or both of them, then to follow the dispositions hereinbefore provided in that event; but whether with or without issue of my said daughter Sidney T., nothing shall be herein understood to prejudice the conditional estate hereinbefore provided for her said husband.

'Next, I direct that upon the division into four parts hereinbefore prescribed, my said son, William A. Bradley, Jr., or his heirs, shall have and receive his portion immediately, except only his distributive share in the personal property left to my wife for her life, and free from any and all trusts whatever contained in this will.

'Item second. I give and bestow upon my said trustees and the survivor of them the largest powers and discretion in taking charge of and managing my estate, and authorize them and the survivor to have, hold, direct, and control the aforesaid trust property according to their or the survivor's best judgment, and to sell and dispose of the same, or any parts thereof, from time to time, subject only to the aforesaid trusts, and as freely as I myself could do if living; and also in all things to have the same powers, rights, privileges, benefits, advantages as I myself have, or might have if living, in all and any contracts, bargains, agreements, companies, or other compacts to which I am now or may become a party.

'Item third. I nominate, constitute, and appoint my said trustees, and the survivor of them, executors and executor of this my last will and testament.

'In witness whereof, I have hereto set my hand and seal this seventh day of August, in the year eighteen hundred and sixty-six.

'W. A. BRADLEY.' [SEAL.]

The testator's widow died in 1868, his son in 1869, and his daughters, without issue, in 1870.

Under item second of the will, A. Thomas Bradley, the other trustee being dead, undertook as surviving trustee, in June, 1871, to convey to Mark Young certain mill property in Georgetown, whereof the testator died seised. To recover it this bill was brought by the children of William A. Bradley, Jr., son of the testator.

The court below held the conveyance void for want of power in the trustee to make it, and granted the relief prayed in the bill. Young thereupon appealed to this court.

Mr. Enoch Totten for the appellant.

Mr. Walter D. Davidge and Mr. Reginald Fendall, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Young v. Bradley


text: Talk:Young v. Bradley

title: Talk:Young v. Bradley


text:
Young v. Bradley/Opinion of the Court

The decision of this case turns upon the construction of the powers conferred by the will on the trustees named in it.

As this question of power is the principal one in the case, a critical examination of the terms of the will as connected with the condition of the trust estate and of the cestuis que trust, at the time of the execution of the deed, becomes necessary.

The will begins by a declaration that the testator gives, devises, and bequeaths all of his estate, real, personal, and mixed, of whatever kind it may be, and wherever situated, to William A. Bradley, Jr., his son, and A. Thomas Bradley, his cousin, and to the survivor and his heirs in trust. Then follows the distinct declaration of these trusts, the first of which is of the house in which he lived, and its furniture, and one-third of the net income of his estate besides, to his wife during her life. He next directs that the trustees shall divide all his estate immediately after his death into four equal parts, and allot them as follows: One part to his son William, who shall receive his portion at once; one to the children then living or thereafter born to said William; one to Mrs. Linton, a married daughter; and one to Mrs. Edelin, another married daughter. The portions left to the two daughters were to include the homestead, for which each of them was to be charged $5,000 in dividing the property; 'and the trustees or the survivor of my said trustees shall also take into possession the said household effects and other chattels, and make, according to his or their best judgments, an equal distribution of the same in kind as to the whole or in part as to some, and in proceeds of sales as to others, among the parties entitled to real estate under this will, and in the same proportions.'

He next directed the trustees to hold the portions of his daughters in trust for their sole and separate use, free from the control of their husbands and from liability for their debts; and he provided for such disposition of their respective shares on their death that all the interest of both of them, and in fact all the beneficial interests under the will, had vested in the children of William A. Bradley, Jr., at the time the deed to Young was made by A. Thomas Bradley. This resulted from the death of each daughter childless, and the death of testator's wife and son.

By the unanimous request of the persons interested under the will, no division into four parts and no distribution of the estate was ever made. As we have already said, by reason of the death of all the beneficiaries under the will except the children of W. A. Bradley, Jr., and by the payment of all the debts of the testator, the entire interest in the estate of the testator had become vested in them; and, under these circumstances, the inquiry is, hat authority had the surviving trustee to sell real estate.

The legal title, it is argued, is vested in him by the will. The power conferred by item second is as ample as language can make it, with the single limitation that it is subject to the trusts of the will. The estate vested in the trustees was designed to enable them to execute these trusts. It was not an estate to last for ever. The things to be done by the trustees were defined, and in the nature of things were to have an end.

What were the purposes for which this trust was created, and what remained for a trustee to do in execution of them?

1. They were to hold for the benefit of the widow, during her life, and see that she received the one-third of the annual income of his estate. She is long since dead, and that trust has ceased.

2. We may suppose that in making the partition and distribution, sales to equalize, and conveyance to the distributees were necessary. The whole interest has become vested in one of the four distributees of the will, and nothing remains to be done under the trust in regard to that distribution.

3. The trustees were to hold the shares of the daughters as a protection against their husbands, and for the children of these daughters until the youngest of such children should attain the age of twenty-one years, unless in the discretion of the trustees it should appear best to terminate the trust earlier. There were no such children of the daughters, and the daughters are both dead.

There was no such control over the distributive shares of the children of W. A. Bradley, Jr., and as the whole of it has come to them, the trustees are not their trustees as they were of the widow of the testator, his daughters, and their children if there had been such.

These are all the trusts declared by the will. They were all performed, superseded, or terminated before the deed to Young was made. The trustee in making that deed was discharging no trust reposed in him and no duty required of him by the will. It is not suggested anywhere that any such purpose was in view. It is said that the property was dilapidated and needed repair. But as it belonged to Mrs. Bradley and her children, and as the will did not confer on the trustees any guardianship or control over the property of the testator's son's children after their share was allotted to them, the trustees had no power over it when it came to them by the other provisions of the will on the death of the other devisees.

The doctrine is well settled that, whatever the language by which the trust estate is vested in the trustee, its nature and duration are governed by the requirements of the trust. If that requires a fee-simple estate in the trustee, it will be created, though the language be not apt for that purpose. If the language conveys to the trustee and his heirs for ever, while the trust requires a more limited estate either in quantity or duration, only the latter will vest.

Mr. Perry, in his work on Trusts, supports by a very full array of authorities these two propositions in regard to the construction of instruments out of which trust estates arise: 1 'Whenever a trust is created, a legal estate sufficient for the purposes of the trust shall, if possible, be implied in the trustee, whatever may be the limitations in the instrument, whether to him and his heirs or not.' 2. 'Although a legal estate may be limited to a trustee to the fullest extent, as to him and his heirs, yet it shall not be carried further than the complete execution of the trust necessarily requires.' Perry, Trusts, sect. 312. Again, he says: 'In the United States, the distinction between deeds and wills in respect to the trustee's estate has not been kept up; and the general rule is, that whether words of inheritance in the trustee are or are not in the deed, the trustee will take an estate adequate in the execution of the trust, and no more nor less.' Sect. 320.

The case of Noble v. Andrews (37 Conn. 346) bears a strong analogy to the one before us in principle, where it was held that a gift to a person in trust for a wife during her life, and to her heirs for ever, subject to her husband's curtesy, conveyed to the trustee only an estate for the life of the wife, and at her death the trust ceased.

This subject is considered and the authorities fully reviewed by Mr. Justice Swayne, in Doe, Lessee of Poor, v. Considine, 6 Wall. 458. 'It is well settled,' says he, 'that where no intention to the contrary appears, the language used in creating the estate will be limited and restrained to the purposes of its creation. And when they are satisfied, the estate of the trustee ceases to exist and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation.'

We are satisfied that, at the time A. Thomas Bradley undertook to sell to Mark Young the property in controversy, the trust estate created in him by the will of William A. Bradley, Sen., had become extinct, and that his conveyance was void because his powers as such trustee had ceased.

Two minor objections are taken to the decree which require notice.

1. It is said that the amount charged to Young for the use and occupation of the property is excessive. It is a sufficient answer to this to say that the matter was referred to an auditor, on whose report the decree in that respect was based, and that no exception was taken to his report.

2. It is alleged for error also that no provision is made by the decree to refund to Young the purchase-money, amounting to about $10,000, paid by him under the contract. At first blush, this demand of Young to have his money or the property seems just.

The court below seemed to be impressed with this view of the matter, for in the order of reference to the auditor, who in that court performs the functions of a master in chancery, he was directed to report 'how much, if any, of the money paid by said Mark Young to A. Thomas Bradley went to the benefit and advantage of the complainants.' And he reported that none of it did. To this branch of the report there was no exception, though an effort was made, after the time for it had passed, to except to other parts of the report. So that we are concluded by that report.

But in the view we have taken of the case the sale by Bradley was utterly void. The complainants are entitled to their property and compensation for its use, and the matter of the return of the money to Young is one solely between Bradley and him, with which these complainants have nothing to do. It is not the rescission of a valid contract, in which case the parties must be placed in statu quo, but the recovery of property held on a void deed with a declaration of its original nullity.

Decree affirmed.

title: Young v. Bradley/Opinion of the Court


text: Talk:Young v. Bradley/Opinion of the Court