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Goodwin v. Colorado Mortgage Investment Company of London/Opinion of the Court

The Colorado Mortgage & Investment Company of London, (Limited,) a corporation organized under the laws of the United Kingdom of Great Britain and Ireland, brought this action against Harrison Goodwin and Elizabeth Goodwin, his wife, to recover the possession of certain real estate in Colorado, and damages for withholding the same. In conformity with a written stipulation by the parties, the case was tried by the court without the intervention >>of a jury, and judgment rendered for the plaintiff. The lands in controversy were conveyed by Harrison Goodwin to David H. Maffat, Jr., in trust, to secure certain promissory notes executed by the grantor to the plaintiff, and made payable at Denver, Colorado. The deed provided that in case of default in the payment of the principal or interest of either of the notes, the trustee, on application in writing of the legal holder of the notes, might sell the premises at public auction after giving four weeks' previous notice of the time and place of sale by advertisement in any newspaper published in Boulder county, (where, as we infer, the lands lie,) and from the proceeds pay the principal and interest of the notes, whether due and payable by the tenor thereof or not. There was such default, and under the authority given by the deed of trust the lands were sold, the plaintiff becoming the purchaser, and receiving a conveyance therefor from the trustee. The wife of Goodwin filed a separate answer, in which, among other things, it is alleged that at the time of the execution of the deed of trust the premises in controversy were, as plaintiff well knew, occupied by her husband and herself as their homestead, and that her husband was a householder. By these allegations it was intended to question the validity, under the laws of Colorado, of the sale of the premises in pursuance of the beforementioned deed of trust.

The statutes of Colorado (Colo. Gen. Laws 1877, c. 46) provide that every householder in that state, 'being the head of a family, shall be entitled to a homestead not exceeding in value the sum of $2,000, exempt from execution and attachment arising from any debt, contract, or civil obligation entered into or incurred after the first day of February, in the year of our Lord 1868,' (section 1;) that 'to entitle any person to the benefits of this act he shall cause the word 'homestead' to be entered of record on the margin of his recorded title to the same,' (section 2;) that 'such homestead shall only be exempt, as provided in the first section of this act, while occupied as such by the owner thereof, or his or her family,' (section 3;) that 'when any person dies seized of a homestead, leaving a widow, * *  * such widow *  *  * shall be entitled to the homestead,' (section 4;) and that 'nothing in this act shall be construed to prevent the owner and occupier of any homestead from voluntarily mortgaging the same: provided no such mortgage shall be binding against the wife of any married man who may be occupying the premises with him, unless she shall freely and voluntarily, separate and apart from her husband, sign and acknowledge the same, and the officer taking such acknowledgment shall fully apprise her of her rights and the effect of signing such mortgage,' (section 6.)

The assignments of error do not present any question as to the sufficiency of that part of Mrs. Goodwin's answer which impeaches the truth of the officer's certificate of her acknowledgment of the trust deed. But had they done so, it is sufficient, upon this branch of the case, to say that no one is entitled to the benefits of the foregoing statutory provisions unless the word 'homestead' be entered on the margin of the recorded title of the premises occupied as a homestead. Such are the express words of the statute, and there is no room left for construction. We are not at liberty to say that the legislature intended actual notice to creditors of the occupancy of particular premises as a homestead to be equivalent to the entry on the record of title of the word 'homestead.' The requirement that the record of the title shall show that the premises are occupied as a homestead before any person can become entitled to the benefits of the statute, is absolute and unconditional. As the answer of Mrs. Goodwin did not show a compliance, in that respect, with the statute, it was fatally defective.

The constitution of Colorado provides (art. 15, § 10) that 'no foreign corporation shall do any business in this [that] state without having one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served.'

The statutes of the state provide, that 'foreign corporations shall before they are authorized or permitted to do any business in this state, make and file a certificate signed by the president and secretary of such corporation, duly acknowledged, with the secretary of state and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this state, and an authorized agent or agents in this state, residing at its principal place of business, upon whom process may be served.' Gen. Laws Colo. 1877, p. 151, § 213.

Prior to the execution of the before-me tioned deed of trust or of the notes secured by it, the plaintiff caused to be filed in the office of the secretary of state of Colorado and in the office of the recorder of Arapahoe county a certificate signed by its president and secretary, and duly acknowledged, which stated 'that the principal place where the business of said corporation shall be carried on in the state of Colorado shall be at Denver, in the county of Arapahoe, in said state, and that the general manager of said corporation, residing at the said principal place of business, is the agent upon whom process may be served in all suits that may be commenced against [said] corporation.'

The contention of plaintiffs in error is that this certificate is materially defective, in that it does not designate the particular individual by name upon whom, as the agent of the corporation, process may be served; that until this foreign corporation filed such a certificate as the statute required, it was prohibited by the constitution and laws of Colorado from doing any business in that state; and, consequently, that this deed of trust, executed and delivered in Colorado, and upon which its title to the premises in controversy rests, was void. We are of opinion that the certificate in question was in substantial conformity to the law. The requirement of the statute was met by the designation of the 'general manager' of the corporation, residing at its principal place of business, as agent, to receive service of process. It was not necessary, as we think, to give the name of the particular person who happened, at the date of the certificate, to fill that position. The object of the statute could be best subserved by a certificate of the character filed, for the obvious reason that the death or resignation of the incumbent would not long interfere with the bringing of suits against the corporation. Had there been, when the certificate was filed, no such officer of the corporation as a general manager, there would have been ground to contend that it had not performed the condition essential to its authority to do business in the state. But the answer makes no claim of that kind, but assumes that it was necessary to give the name of some individual upon whom process against the corporation might be served. We do not concur in this construction of the statute. None of the points made by counsel for plaintiffs in error can be sustained, and the judgment must be affirmed. It is so ordered.


text: Talk:Goodwin v. Colorado Mortgage Investment Company of London/Opinion of the Court

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


text:
Martin v. Webb

''Jeff. Chandler and Eppa Hunton'', for appellants.

''Jas. S. Botsford, R. T. Merrick, and M. F. Morris'', for appellees.

HARLAN, J.

title: Martin v. Webb


text: Talk:Martin v. Webb

title: Talk:Martin v. Webb


text:
Martin v. Webb/Opinion of the Court

This is an appeal from a decree in two suits in equity commenced in one of the courts of the state of Missouri, and thence removed into the circuit court of the United States for the western district of that state, where by consent they were consolidated for final hearing. The question presented is whether the appellant the Daviess County Savings Association, a banking corporation of Missouri, doing business at Gallatin, in that state, is, under the circumstances of this case, estopped to deny that the cancellation, in its name and by its cashier, of certain notes secured by trust deeds upon real estate, and the release of record of the liens given by those deeds, was by its authority and binding upon it. The facts bearing upon this question, as they are disclosed by the pleadings, testimony, and stipulations of counsel, are substantialy as will be now stated. On the thirtieth day of June, 1879, one Patrick S. Kenney was largely indebted to that association. The indebtedness was secured by recorded deeds of trust upon several tracts of land, in some of which, embracing a large part of this indebtedness to the bank, his wife had not joined. These deeds bore date, respectively, February 8, 1872; November 17, 1873; December 20, 1873; August 28, 1874; September 21, 1874; May 24, 1875; and April 1, 1876. In three of them the trustee was Robert L. Tomlin, who, at the date of their execution and during the entire period covered by the transactions to be hereafter recited, was a director and the cashier of the bank. Kenney and wife had also executed and delivered a deed of trust upon a portion of the same lands, for the benefit of James D. Powers, to secure a debt of $5,000 and interest. As to the lands therein described, it gave a lien superior to that created by any of the before-mentioned deeds, except the one of date February 8, 1872. On the fifteenth day of July, 1875, and first day of November of the same year, respectively, the Exchange Bank of Breckinridge, Missouri, and one Thomas Ryan, obtained judgments for money against Kenney, which, on June 30, 1879, remained, or were believed by those interested in them to remain, liens superior to that given by the foregoing deed of April 1, 1876.

It was desired by Tomlin, the cashier, to have Kenney's indebtedness to the bank in better shape than it was, and to secure further time on his indebtedness to other parties. He also deemed it important that the liens upon these lands, (whether created by trust deeds or judgments,) which were prior to those held by the bank, should be removed, and that Mrs. Kenney's signature be obtained to a trust deed or deeds in favor of the bank, covering all the lands of her husband. He therefore requested Kenney to obtain a loan of money sufficient to satisfy all liens prior to those held by the bank. Tomlin did not wish his bank to make further advancements to Kenney, believing the latter would be more prompt with strangers than with the bank in paying interest as it matured. In order to effect the desired result, application was made by the cashier to Frank & Darrow, of Corning, Iowa, for a loan to Kenney. After some negotiations, that firm made an arrangement with Albert S. Webb, R. L. Belknap, and William H. Kane, of New York, trustees under the will of Henry R. Remsen, for a loan of money to Kenney for five years, at 8 per cent. interest, to be secured by a trust deed on his lands, which would give them a lien prior and superior to that held by all others, including the bank. It was expressly agreed between Frank & Darrow, representing the trustees of Remsen, on one side, and Kenney and Tomlin, the latter representing his bank, on the other side, that the money thus obtained should be applied, as far as necessary, to the debts secured by the before-mentioned Powers deed of trust, and to the two judgments against Kenney; that the balance should be paid to the bank, which should then cancel and surrender the notes held against Kenney, taking a new note from him, and enter of record satisfaction and release of its liens under the several deeds; that Kenney and wife should execute a deed of trust, giving a first lien to Remsen's trustees to secure the loan by them made; a like deed, giving a lien subordinate to that of Remsen's trustees, to secure Frank & Darrow in the sum of $1,000, the amount stipulated to be paid them for effecting the loan; that Kenney and wife should also make a deed of trust on the same lands to the Daviess County Savings Association, giving a lien subordinate to those given to Remsen's trustees and to Frank & Darrow, for the balance of their claims against Kenney remaining after crediting such portion of the $10,000 received from Remsen's trustees as should be paid to the bank.

No part of the sum received from Remsen's tr stees was paid directly to or disbursed by Kenney; but, conformably to the agreement between the parties, $5,200 of it was applied in satisfaction of the debt secured by the Powers deed of trust, $1,689.86 in discharge of the two personal judgments against Kenney, and the balance, $3,110.14, was paid to the bank. A new note was then executed to the bank by Kenney, and the $3,110.14 entered on its books as a partial payment thereof. Satisfaction was entered of record in the name of the bank by its cashier of all the debts held against Kenney, and the old deeds of trust held were also canceled of record in its name by the cashier. Deeds of trust executed by Kenney and wife, of date July 1, 1879, were then placed upon record, all on August 6, 1879, but distinctly giving liens upon the lands in the order already indicated. The new deed to the bank, in addition, expressly provides that the lien thereby created is subordinate to that given Remsen's trustees. The old notes of Kenney were marked by the cashier on the books of the bank as paid, and the new note general funds one Kenney was to pay. The $3,110.14 went into the general funds of the bank, and was used in its business. The old notes and deeds, being first stamped by the cashier as 'paid,' were placed by him in an envelope maked with Kenney's address. The cashier had promised, when this arrangement was consummated, to send them to Kenney, but finding the package containing them to be bulky, they were held for delivery to him when he should call at the bank.

The Daviess County Saving Association was organized in 1865. Of its paid-up capital stock, at the time of these transactions, all, except a very small amount, was owned by McFerran, Hemry, and Tuggle,-McFerran owning a majority of the whole stock. McFerran was elected president, and from sometime in 1870 until January 1, 1872, Tomlin was acting cashier, and from the latter date until January 1, 1881, he was cashier. At the outset the business seemed to have been managed entirely by the cashier under the general supervision or direction of McFerran. But, desiring to extend the field of his business operations, the latter removed in 1873 to Colorado, and there engaged in banking business. He did not return to Missouri until February, 1881. During his absence, and up to 1879, he claimed to be the president of the association. But during the whole period of McFerran's absence the exclusive management of the business of the bank seemed to have been left to the cashier, without interference from any quarter. This state of things continued even after the election of Hemry as president on the first day of January, 1879. Tuggle, one of the directors, says he never gave much attention to the affairs of the bank. He resided some distance from Gallatin; came to town about once a month, staying sometimes a week; was in the bank frequently, but never gave much attention to its affairs; when there he would inquire of the officers how it was 'running' or 'getting along;' but he never examined its books, money, or notes; and when in town, did not, he says, do anything about 'running the affairs of the bank.' He testifies that the meetings of the board of directors were 'simply for the purpose of electing officers and declaring dividends.' He knew that the business of the bank was varied, presenting itself in different forms; that deeds of trust were taken from time to time; and that in the course of its business it was necessary to cancel such deeds. Upon cross-examination he said: 'Tomlin was attending to the business of the bank from 1873 up to the time this loan was made. * *  * When a man applied to the bank for a loan, or to have a deed of trust changed, or the security changed, my understanding was that Tomlin attended to it. * *  * I never questioned Tomlin's right to cancel a deed of trust from 1873 to 1879; never knew of any other director questioning his right during that time. * *  * Tomlin was acting as cashier from 1865 up to the time of making this loa, and, so far as I know, was transacting generally all the business necessary to be transacted here at the bank.' When asked by whom he expected a deed of trust to be canceled, when executed by one who applied to the bank for a loan, and gave other security, and wished that deed released, his answer was: 'I expected Tomlin attended to it.' When asked whom he supposed had such authority from 1873 to the time of the loan in question, his answer was: 'I understood he [Tomlin] was doing it. I never thought much of it, and knew nothing about his authority.' Again, the same witness: 'My understanding is that Tomlin was doing the business of the bank. Cannot say when it was I first heard of this loan. When I heard it I did not do anything.' Hemry, the other director, and who was elected president of the bank for 1879, said that he did not, nor did any individual director, to his knowledge, give orders as to the release of securities. 'To be very particular,' said he, 'I don't think of any particular case in which I directed or advised.' It thus appears that from 1873 up to 1880, during McFerran's absence in Colorado, there could have been no supervision of the business by him, and that the local directors surrendered all control to the cashier, who was their co-director. If they did not abdicate all authority as directors, they acquiesced in the cashier's assumption of exclusive management of the bank's business.

Tomlin understood, and from the conduct of the directors had reason to understand, that he was invested with full authority to manage the operations of the bank according to his best judgment, and without disturbing the directors. This explains the fact-which is quite extraordinary, in view of the present position of the bank-that from 1873 to 1880, inclusive, Tomlin, as cashier, entered in the name of the bank, upon the proper records of the county, satisfaction of more than 150 different deeds of trust executed to secure debts held by the corporation. In no instance did he receive previous orders to do so from the directors. His authority or duty to do so was never questioned to his knowledge, or to the knowledge of any one having business with the bank. To all who came into the bank or had transactions with it his control seemed to be as absolute as if he were the owner of all the stock. His authority to make the arrangement with Kenney, Frank & Darrow, and Remsen's trustees, was never questioned by any one until February, 1880, when McFerran returned from Colorado on a visit to Missouri. Tomlin, during his explanation of the details of that arrangement, exhibited to him the old notes and trust deeds, they having remained in his possession in the package in which he originally placed them for Kenney. McFerran took possession of them, claiming that they were the property of the bank, although after the new deed of trust Kenney had given up the land to the bank and took back a lease from it. The bank, having through Tomlin's management and with the money obtained from Remsen's trustees removed the lien given by the Powers deed of trust, and the lien or the claim of lien upon a part of the lands in virtue of the judgments obtained by the Exchange Bank of Breckinridge and Ryan, now ignores the new deed of trust, and seeks to foreclose the lien given by the original deeds, thereby defeating the prior lien given to Remsen's trustees by the deed of 1879; this, upon the ground that Tomlin, as cashier, without authority and without their knowledge, had assumed to discharge the original debts, to cancel the original trust deeds, and to take a new note secured by a new deed of trust. It is to be observed that while the bank repudiates this arrangement, upon the faith of which Remsen's trustees parted with their money, it retains and does not offer to return, but has used in its business, $3,110.14 of the sum loaned by those trustees through Frank & Darrow to Kenney. It is willing to accept all the benefits resulting from the acts of its cashier, but endeavo § to escape the burdens attached to it by the agreement of the parties.

We have stated with some fullness the circumstances disclosed by the record, so that the general expressions in this opinion may be interpreted by the facts of this case. To permit the bank, under these circumstances, to dispute the binding force of the arrangement made by its cashier in reference to Kenney's indebtedness, including the cancellation of the old note and trust deeds, and the acceptance of the new ones, would be a mockery of justice. It is quite true, as contended by counsel for appellants, that a cashier of a bank has no power, by virtue of his office, to bind the corporation except in the discharge of his ordinary duties, and that the ordinary business of a bank does not comprehend a contract made by a cashier,-without delegation of power by the board of directors,-involving the payment of money not loaned by the bank in the customary way. U.S. Bank v. Dunn, 6 Pet. 51; U.S. v. City Bank of Columbus, 21 How. 356; Merchants' Bank v. State Bank, 10 Wall. 604. Ordinarily, he has no power to discharge a debtor without payment, nor surrender the assets or securities of the bank. And, strictly speaking, he may not, in the absence of authority conferred by the directors, cancel its deeds of trust given as security for money loaned,-certainly not, unless the debt secured is paid. As the executive officer of the bank, he transacts its business, under the orders and supervision of the board of directors. He is their arm in the management of its financial operations. While these propositions are recognized in the adjudged cases as sound, it is clear that a banking corporation may be represented by its cashier,-at least where its charter does not otherwise provide,-in transactions outside of his ordinary duties, without his authority to do so being in writing, or appearing upon the record of the proceedings of the directors. His authority may be by parol and collected from circumstances. It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been allowed, without interference, to conduct the affairs of the bank. It may be implied from the conduct or acquiescence of the corporation, as represented by the board of directors. When, during a series of years or in numerous business transactions, he has been permitted, without objection, and in his official capacity, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation, that he has acted in conformity with instructions received from those who have the right to control its operations. Directors cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and supervision of its officers. They have something more to do than, from time to time, to elect the officers of the bank, and to make declarations of dividends. That which they ought, by proper diligence, to have known as to the general course of business in the bank, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with its officers upon the basis of that course of business.

These principles govern the case before us, and lead necessarily to an affirmance of the decree adjudging the surrender and cancellation of the old deeds and the notes given by Kenney, and declaring the liens in favor of Remsen's trustees and Frank & Darrow to be superior to that of the bank. It is so ordered.

title: Martin v. Webb/Opinion of the Court


text: Talk:Martin v. Webb/Opinion of the Court


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Page:A Thousand-Mile Walk To The Gulf.djvu/171

Rh I made my way through the briers, which in strength and ferocity equaled those of Tennessee, followed the path through all of its dim waverings, waded the many opposing pools, and, emerging suddenly from the leafy darkness of the swamp forest, at last stood free and unshaded on the border of the sun-drenched palm garden. It was a level area of grasses and sedges, smooth as a prairie, well starred with flowers, and bounded like a clearing by a wall of vine-laden trees.

The palms had full possession and appeared to enjoy their sunny home. There was no jostling, no apparent effort to outgrow each other. Abundance of sunlight was there for every crown, and plenty to fall between. I walked enchanted in their midst. What a landscape! Only palms as far as the eye could reach! Smooth pillars rising from the grass, each capped with a sphere of leaves, shining in the sun as bright as a star. The silence and calm were as deep as ever I found in the dark, solemn pine woods of Canada, and that


text:
Holland v. Challen

C. S. Montgomery, for appellant.

T. M. Marguette, for appellee.

[Argument of Counsel from pages 16-17 intentionally omitted]

FIELD, J.

title: Holland v. Challen


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Page:A Thousand-Mile Walk To The Gulf.djvu/172

Rh which is an attribute of the best of God’s plant people was as impressively felt in this alligator wilderness as in the homes of the happy, healthy people of the North.

The admirable Linnæus calls palms "the princes of the vegetable world." I know that there is grandeur and nobility in their character, and that there are palms nobler far than these. But in rank they appear to me to stand below both the oak and the pine. The motions of the palms, their gestures, are not very graceful. They appear to best advantage when perfectly motionless in the noontide calm and intensity of light. But they rustle and rock in the evening wind. I have seen grasses waving with far more dignity. And when our northern pines are waving and bowing in sign of worship with the winter storm-winds, where is the prince of palms that could have the conscience to demand their homage!

Members of this palm congregation were of all sizes with respect to their stems; but their glorious crowns were all alike. In


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Rh there is only the terminal bud to consider. The young palm of this species emerges from the ground in full strength, one cluster of leaves arched every way, making a sphere about ten or twelve feet in diameter. The outside lower leaves gradually become yellow, wither, and break off, the petiole snapping squarely across, a few inches from the stem. New leaves develop with wonderful rapidity. They stand erect at first, but gradually arch outward as they expand their blades and lengthen their petioles.

New leaves arise constantly from the center of the grand bud, while old ones break away from the outside. The splendid crowns are thus kept about the same size, perhaps a little larger than in youth while they are yet on the ground. As the development of the central axis goes on, the crown is gradually raised on a stem of about six to twelve inches in diameter. This stem is of equal thickness at the top and at the bottom and when young is roughened with the broken petioles. But these


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Rh fall off and disappear as they become old, and the trunk becomes smooth as if turned in a lathe.

After some hours in this charming forest I started on the return journey before night, on account of the difficulties of the swamp and the brier patch. On leaving the palmettos and entering the vine-tangled, half-submerged forest I sought long and carefully, but in vain, for the trail, for I had drifted about too incautiously in search of plants. But, recollecting the direction that I had followed in the morning, I took a compass bearing and started to penetrate the swamp in a direct line.

Of course I had a sore weary time, pushing through the tanglement of falling, standing, and half-fallen trees and bushes, to say nothing of knotted vines as remarkable for their efficient army of interlocking and lancing prickers as for their length and the number of their blossoms. But these were not my greatest obstacles, nor yet the pools and lagoons full of dead leaves and alligators. It was the army of cat-briers


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Rh that I most dreaded. I knew that I would have to find the narrow slit of a lane before dark or spend the night with mosquitoes and alligators, without food or fire. The entire distance was not great, but a traveler in open woods can form no idea of the crooked and strange difficulties of pathless locomotion in these thorny, watery Southern tangles, especially in pitch darkness. I struggled hard and kept my course, leaving the general direction only when drawn aside by a plant of extraordinary promise, that I wanted for a specimen, or when I had to make the half-circuit of a pile of trees, or of a deep lagoon or pond.

In wading I never attempted to keep my clothes dry, because the water was too deep, and the necessary care would consume too much time. Had the water that I was forced to wade been transparent it would have lost much of its difficulty. But as it was, I constantly expected to plant my feet on an alligator, and therefore proceeded with strained caution. The opacity of the water caused uneasiness also on account


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Rh of my inability to determine its depth. In many places I was compelled to turn back, after wading forty or fifty yards, and to try again a score of times before I succeeded in getting across a single lagoon.

At length, after miles of wading and wallowing, I arrived at the grand cat-brier encampment which guarded the whole forest in solid phalanx, unmeasured miles up and down across my way. Alas! the trail by which I had crossed in the morning was not to be found, and night was near. In vain I scrambled back and forth in search of an opening. There was not even a strip of dry ground on which to rest. Everywhere the long briers arched over to the vines and bushes of the watery swamp, leaving no standing-ground between them. I began to think of building some sort of a scaffold in a tree to rest on through the night, but concluded to make one more desperate effort to find the narrow track.

After calm, concentrated recollection of my course, I made a long exploration toward the


text: Talk:Holland v. Challen

title: Talk:Holland v. Challen


text:
Holland v. Challen/Opinion of the Court

This is a suit in equity to quiet the title of the plaintifl to certain real property in Nebraska as against the claim of the defendant to an adverse estate in the premises. It is founded upon a statute of that state which provides 'that an action may be brought and prosecuted to final decree, judgment, or order by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to such real estate.' The bill alleges that the plaintiff is the owner in fee-simple and entitled to the possession of the real property described. It then sets forth the origin of his title, particularly specifying the deeds by which it was obtained, and alleges that the defendant claims an adverse estate or interest in the premises; that the claim so affects his title as to render a sale or other disposition of the property impossible, and that it disturbs him in his right of possession. It therefore prays that the defendant may be required to show the nature of the adverse estate or interest claimed by her; that the title of the plaintiff may be adjudged valid and quieted as against her and parties claiming under her, and his right of possession be thereby assured; and that the defendant may be decreed to have no estate in the premises and 'be enjoined from in any manner injuring or hindering' the plaintiff in his title and possession. The defendant demurred to the bill, on the ground that the plaintiff had not made or stated such a case as entitled him to the discovery or relief prayed. T e court below sustained the demurrer and dismissed the bill. From this decree the case is brought here on appeal.

It does not appear from the record in what particulars it was contended in the court below that the bill is defective; that is, in what respect it fails to show a right to the relief prayed. We infer, however, from the briefs of counsel that the same positions now urged in support of the decree were then urged against the bill; that is, that the title of the plaintiff to the property has not been by prior proceedings judicially adjudged to be valid, and that he is not in possession of the property-the contention of the defendant being that, when either of these conditions exist, a court of equity will not interpose its authority to remove a cloud upon the title of the plaintiff, and determine his right to the possession of the property. The statute of Nebraska enlarges the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property. It authorizes the institution of legal proceedings, not merely in cases where a bill of peace would lie, that is, to establish the title of the plaintiff against numerous parties insisting upon the same right, or to obtain repose against repeated litigation of an unsuccessful claim by the same party, but also to prevent future litigation respecting the property by removing existing causes of controversy as to its title, and so embraces cases where a bill quia timet to remove a cloud upon the title would lie.

A bill of peace against an individual reiterating an unsuccessful claim to real property would formerly lie only where the plaintiff was in possession, and his right had been successfully maintained. The equity of the plaintiff in such cases arose from the protracted litigation for the possession of the property which the action of ejectment at common law permitted. That action being founded upon a fictitious demise, between fictitious parties, a recovery in one action constituted no bar to another similar action, or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though successful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation and give repose to the successful party, courts of equity interfered and closed the controversy. To entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential. He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mischief which it entailed. Ad. Eq. 202; Pom. Eq. Jur. § 248; Stark v. Starrs, 6 Wall. 409; Curtis v. Sutter, 15 Cal. 259; Shipley v. rangeley, Daveis, (3 Ware,) 242; Devonsher v. Newenham, 2 Schoales & L. 208.

In most of the states in this country, and Nebraska among them, the action of ejectment to recover the possession of real property, as existing at common law, has been abolished with all its fictions. Actions for the possession of such property are now not essentially different in form from actions for other property. It is no longer necessary to allege what is not true in fact and not essential to be proved. The names of the real contestants must appear as parties to the action, and it is generally sufficient for the plaintiff to allege the possession or seizin by him of the premises in controversy, or of some estate therein, on some designated day, the subsequent entry of the defendant, and his withholding of the premises from the plaintiff; and although the plaintiff may in such cases recover, when a present right of possession is established, though the ownership be in another, yet such right may involve, and generally does involve, a consideration of the actual ownership of the property; and in such cases the judgment is as much a bar to future litigation between the parties, with respect to the title, as a judgment in other actions is a bar to future litigation upon the subjects determined. Where this new form of action is adopted, and this rule as to the effect of a judgment therein obtains, there can be no necessity of repeated adjudications at law upon the right of the plaintiff as a preliminary to his invoking the jurisdiction of a court of equity to quiet his possession against an asserted claim to the property. A bill quia timet, or to remove a cloud upon the title of real estate, differed from a bill of peace in that it did not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation by removing existing causes of controversy as to its title. It was brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the court was invoked because the party feared future injury to his rights or interests. Story, Eq. § 826. To maintain a suit of this character it was generally necessary that the plaintiff should be in possession of the property, and, except where the defendants were numerous, that his title should have been established at law or be founded on undisputed evidence or long continued possession. Alexarder v. Pendleton, 8 Cranch, 462; Peirsoll v. Elliott, 6 Pet. 95; Orton v. Smith, 18 How. 263.

The statute of Nobraska authorizes a suit in either of these classes of cases without reference to any previous judicial determination of the validity of the plaintiff's right, and without reference to his possession. Any person claiming title to real estate, whether in or out of possession, may maintain the suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title. It is certainly for the interest of the state that this jurisdiction of the court should be maintained, and that causes of apprehended litigation respecting real property, necessarily affecting its use and enjoyment, should be removed; for so long as they remain they will prevent improvement, and consequent benefit to the public. It is a matter of every-day observation that many lots of land in our cities remain unimproved because of conflicting claims to them. The rightful owner of a parcel in this condition hesitates to place valuable improvements upon it, and others are unwilling to purchase it, much less to erect buildings upon it, with the certainty of litigation and possible loss of the whole. And what is true of lots in cities, the ownership of which is in dispute, is equally true of large tracts of land in the country. The property in this case, to quiet the title to which the present suit is brought, is described in the bill as unoccupied, wild, and uncultivated land. Few persons would be willing to take possession of such land, inclose cultivate, and improve it, in the face of a disputed claim to its ownership. The cost of such improvements would probably exceed the value of the property. An action of ejectment for it would not lie, as it has no occupant; and if, as contended by the defendant, no relief can be had in equity because the party claiming ownership is not in possession, the land must continue in its unimproved condition. It is manifestly for the interest of the community that conflicting claims to property thus situated should be settled, so that it may be subjected to use and improvement. To meet cases of this character, statutes like the one of Nebraska have been passed by several states, and they accomplish a most useful purpose. And there is no good reason why the right to relief against an admitted obstruction to the cultivation, use, and i provement of lands thus situated in the states should not be enforced by the federal courts, when the controversy to which it may give rise is between citizens of different states.

In Clarke v. Smith, 13 Pet. 195, a doctrine is declared, with reference to the legislation of Kentucky as to the removal of clouds upon titles to land, which seems to us to be applicable here, and to be decisive of this point. A law of that state, regulating proceedings in the courts of chancery, provided 'that any person having both the legal title to and possession of land may institute a suit against any other person setting up a claim thereto, and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to release his claim thereto and pay the complainant his costs, unless the defendant shall by answer disclaim all title to such lands, and offer to give such release to the complainant.' Under that act, the complainant Clark filed a bill in the circuit court of the United States to compel the defendant to release the title claimed by him to certain lands, under patents from the state of Kentucky, obtained years after the registration of the survey of the ancestor of the complainant and patent to him. The circuit court heard the evidence of the parties as to their respective claims, and was of opinion that the complainant had established a legal title to the premises under a valid grant from the commonwealth, and was in possession at the commencement of the suit, and that the defendant had not shown any right or title, either in law or in equity, to the land or any part of it; but being divided in opinion on the question of the jurisdiction of the court to compel the defendant to execute a conveyance, the bill was dismissed. On the case coming here, the decree below was reversed. In giving its decision this court referred to the unsettled condition of titles in Kentucky, and observed that 'conflicts of title were unfortunately so numerous that no one knew from whom to buy or take lands with safety, nor could improvements be made without great hazard by those in possession, who had conflicting claims hanging over them, and which might thus continue for half a century; the writ of right being limited to fifty years in some cases, that is, where it was brought upon the seizin of an ancestor or predecessor, and to thirty years if on the demandant's own seizin. During all which time the party in possession had no power to litigate, much less to settle the title at law, though he might be harassed by many actions of ejectment, and his peace and property destroyed, although always successful, by no means an uncommon occurrence. This evil it was the object and policy of the legislature to cure, not so much by prescribing a mode of proceeding as by conferring a right on him who had the better title and the possession to draw to him the outstanding inferior claims.' And again: 'Kentucky has the undoubted power to regulate and protect individual rights to her soil, and to declare what should form a cloud on titles; and, having so declared, the courts of the United States, by removing such clouds, are only applying an old process to a new equity created by the legislature, having its origin in the peculiar condition of the county.' 'The state legislatures,' the court added, 'certainly have no authority to prescribe the forms and modes of proceeding in the courts of the United States, but having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the state court; on the contrary, propriety and convenience suggest that the practice should not materially differ where titles to lands are the subjects of investigation. And such is the constant course of the federal courts.' The opinion conclud § with the observation 'that when investigating and decreeing on titles in this country we must deal with them in practice as we find them, and accommodate our modes of proceeding, in a considerable degree, to the nature of the case and the character of the equities involved in the controversy, so as to give effect to state legislation and state policy; not departing, however, from what legitimately belongs to the practice of a court of chancery.'

That case differs from the one at bar in that the complainant was in possession of the premises at the commencement of the suit, and the law of Kentucky gave the right to the relief claimed only to persons having both the legal title and the possession. But the law did not require that such possession should have been disturbed by legal proceedings, and that the title of the plaintiff should be sustained in them by judgments in his favor, before the court could entertain jurisdiction of the case and grant the relief prayed; and therefore no such disturbance of his possession and adjudication sustaining his title were held to be essential to the maintenance of the suit. If the jurisdiction to grant the relief prayed remained unaffected when the legislature had thus dispensed with previous legal proceedings affecting the possession of the plaintiff, it would seem to follow that the jurisdiction would remain unimpaired if possession itself, as a condition of the institution of the suit, was also dispensed with. The truth is, that the jurisdiction to relieve the holders of real property from vexatious claims to it, casting a cloud upon their title, and thus disturbing them in its peaceable use and enjoyment, is inherent in a court of equity; and though conditions to its exercise have at different times been prescribed by that court, both in England and in this country, they may at any time be changed or dispensed with by the legislature without impairing the general authority of the court. Pom. Eq. Jur. § 1398. The equitable rights of parties in Nebraska claiming the legal title to real property are simply enlarged by its statute, not changed in character. And the language used by this court, speaking by Mr. Justice BRADLEY, in the Broderick Will Case, is appropriate here: 'While it is true that alterations in the jurisdiction of the state courts cannot affect the equitable jurisdiction of the circuit courts of the United States, so long as the equitable rights themselves remain; yet an enlargement of equitable rights may be administered by the circuit courts as well as by the courts of the state.' And it may be affirmed of this case, what was said as probably true of that one, that it is 'a case in which an enlargement of equitable rights is effected, although presented in the form of a remedial proceeding.' 'Indeed,' as the court there observed, 'much of equitable jurisdiction consists of better and more effective remedies for attaining the rights of parties.' 21 Wall. 520. No adequate relief to the owners of real property against the adverse claims of parties not in possession can be given by a court of law. If the holders of such claims do not seek to enforce them, the party in possession, or entitled to the possession,-the actual owner of the fee,-is helpless in the matter, unless he can resort to a court of equity.

It does not follow that by allowing in the federal courts a suit for relief under the statute of Nebraska, controversies properly cognizable in a court of law will be drawn into a court of equity. There can be no controversy at law respecting the title or right of possession to real property when neither of the parties is in possession. An action at law, whether in the ancient form of ejectment or in the form now commonly used, will lie only against a party in possession. Should suit be brought in the federal court, under the Nebraska statute, against a party in possession, there would be force in the objection that a legal controversy was withdrawn from a court of law; but that is not this case, nor is it of such cases we are speaking. Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises, and generally that title will be exhibited by conveyances or instruments of record, the construction and effect of which will properly rest with the court. Such, also, will generally be the case with the adverse estates or interests claimed by others. This was the character of the proofs establishing the title of the complainant in Clark v. Smith, supra. But should proofs of a different character be produced, the controversy would still be one upon which a court of law could not act. It is not an objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the character of the questions involved.

In the present case the plaintiff claims under a purchaser at a tax sale by the state, to whom deeds, by the treasurer of the county in which the property is situated, were executed. By the law of Nebraska the fee of real property, and not merely a term of years, may be sold for unpaid taxes. A certain time is allowed to the owner to redeem the property from such a sale, but if redemption is not made within the period designated, a deed is executed by the treasurer of the county to the purchaser, and such deed vests in him the right, title, and estate of the former owner of the land and also of the state and county, and is evidence in all courts that the property conveyed was subject to the taxes for the years stated; that they were not paid, and that redemption was not made before the sale; that the property had been properly listed and assessed and the taxes properly levied; that the property was advertised for sale in the manner and for the length of time required, and was sold as stated in the deed; and that the grantee named was the purchaser or assignee of the purchaser of the property; and, indeed, that all the prerequisites of the law had been complied with by the officers whose duty it was to have taken any part in the transaction relating to or affecting the title conveyed. No person is permitted to question the title thus acquired without showing that he had title to the property at the time of the sale or has since obtained the title from the United States, and that the property was not subject to taxation for the years named, or that the taxes had been paid before the sale, or that the property had never been assessed for taxation, or had been redeemed from the sale, or that there had been fraud committed by the officer in making the sale, or by the purchaser to defeat it. The plaintiff, therefore, had a complete legal title to the premises in controversy, unless some one of the defects mentioned, affecting the validity of the assessment and sale of the property, existed at the time, or fraud had been committed by the officer or purchaser in the sale. Having an apparent legal title by the deeds, it was, of course, important to him and, indeed, necessary for the peaceable possession of the property and its improvement to have any adverse claims, notwithstanding such deeds, considered and settled. We think, therefore, that he was entitled, upon the statement made in his amended bill, the only one before us, to call upon the defendant to produce and disclose whatever estate she had in the premises in question, to the end that its validity may be determined, and if adjudged invalid, that the title of the plaintiff may be quieted.

It follows that the decree of the court below must be reversed and the cause remanded, with leave to the defendant to answer the bill; and it is so ordered.

title: Holland v. Challen/Opinion of the Court


text: Talk:Holland v. Challen/Opinion of the Court


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/179

Rh left down the brier line, and after scrambling a mile or so, perspiring and bleeding, I discovered the blessed trail and escaped to dry land and the light. Reached the captain at sundown. Dined on milk and johnny-cake and fresh venison. Was congratulated on my singular good fortune and woodcraft, and soon after supper was sleeping the deep sleep of the weary and the safe.

October 22. This morning I was easily prevailed upon by the captain and an ex-judge, who was rusticating here, to join in a deer hunt. Had a delightful ramble in the long grass and flowery barrens. Started one deer but did not draw a single shot. The captain, the judge, and myself stood at different stations where the deer was expected to pass, while a brother of the captain entered the woods to arouse the game from cover. The one deer that he started took a direction different from any which this particular old buck had ever been known to take in times past, and in so doing was cordially cursed as being the "d—dest deer that ever


text:
Cedar Rapids Company v. Herring

SAME

v. LAKE.1

No. 143.

SAME

v. IDDINGS.1

No. 144.

SAME

v. CUTLER.1

No. 145.

SAME

v. DUNDON.1

No. 146.

SAME

v. BROOKS.1

No. 147.

SAME

v. GREENSTREET.1

No. 148.

SAME

v. WOOSTER.1

No. 149.

SAME

v. BOYD.1

No. 150.

SAME

v. JEWELL and others.

No. 1,139.

January 7, 1884.

E. S. Bailey and ''Wm. L. Joy'', for plaintiffs in error.

John § Monk, for defendants in error.

MILLER, J.

title: Cedar Rapids Company v. Herring


text: Talk:Cedar Rapids Company v. Herring

title: Talk:Cedar Rapids Company v. Herring


text:
Cedar Rapids Company v. Herring/Opinion of the Court

These are ten writs of error to the supreme court of the state of Iowa to review judgments in that court of affirmance in favor of the parties named. The railroad company was plaintiff in the inferior state court, and on appeal in the supreme court of the state, and in the writs of error in this court. The suit in the court of original jurisdiction was in the nature of a bill in chancery to quiet title, and to compel a conveyance of the legal title held by defendants under patents from the United States to plaintiff, who asserted title to it in equity. The cases all depend on the same pleadings and evidence, and were consolidated in the inferior court, and have been considered and argued together in the supreme court of Iowa, and in this court, except No. 1,139-the Jewell Case-which is submitted in this court on the same argument.

The defendants are in possession of the land in controversy in each case under a purchase from the United States, with a patent from the government, and the plaintiff, the railroad company, asserts a superior title, either legal or equitable, under certain land grants by act of congress to aid in building railroads. The first of these acts is that of May 15, 1856, (11 U.S. St. 9,) by which congress granted lands lying within the state of Iowa to that state to aid in building four principal railroads from the Mississippi to the Missouri river. One of these was for a road 'from Lyons city, on the Mississipi river, to a point of intersection with the main line of the Iowa Central Airline Railroad near Maquoketa; thence on said main line, running as near as practicable to the forty-second parallel across the said state to the Missouri river.' For each of these roads there was given to the state of Iowa, 'as soon as the road is completed, every alternate section of land designated by odd numbers for six sections in width on each side of each of said roads.' And it was provided that if, when the line of a road was definitely located, it was found that the United States had disposed of any of these odd sections, or rights had attached to them by pre-emption or otherwise, an agent appointed by the state might, in lieu of these, select other alternate sections anywhere within 15 miles of the line of the road.

The state of Iowa, by an act of the general assembly approved July 14, 1856, accepted the trust reposed in it by the above act of congress, and granted and conferred upon four corporations all these lands, under the terms and restrictions of the act of congress. These corporations were to construct the roads across the state according to that act, and the corporation on whom was conferred the grant for a road from Lyons to the Missouri river was the Iowa Central Air-line Railroad Company. The only result of this particular grant of the state was that the company received the 120 sections of land which this court held, in the case of Railroad Land Co. v. Courtright, 21 Wall. 310, could be secured before any road was built; but having built no road up to March 17, 1860, the state, by an act of its legislature of that date, declared the grant forfeited and resumed control of it. On the twenty-sixth of that month, by another act of assembly, the state granted the same lands to the Cedar Rapids & Missouri River Railroad Company-the plaintiff in error-upon conditions similar in all material respects to the grant to the Air-line Company. The Air-line Company had before this time surveyed and located the line of the road from Lyons to the Missouri river through the town of Cedar Rapids, and the map of this survey and location had been accepted by the state of Iowa and the land-office of the United States as the true line, and as governing the location of the land grant for that road. A road had also been built by another company, the Chicago, Iowa & Nebraska, which had no land grant, from a point on the Mississippi river within three miles of Lyons city to Cedar Rapids. Hence, the grant of the state to the Cedar Rapids Company required them to build speedily from Cedar Rapids west along the line thus adopted to the Missouri river.

Under this arrangement the Cedar Rapids Company pushed its road on the designated line, so that it had completed about a hundred miles west of the town of that name by the year 1864, when several matters seemed to call for legislation by congress in regard to it, and to the other companies building roads across the state under the grants of the act of 1856. As regards the Cedar Rapids Company, it had become clearly unnecessary to build another road from the Missisippi at Lyons to Cedar Rapids, along the line occupied by the Iowa & Nebraska road. It had also become apparent that a shorter and better line to the Missouri river could be had from the point to which the road had now been constructed, and it as thought that a road from some point on its existing line to some point south of it, on the line of the Mississippi & Missouri River Railroad,-one of the four land-grant roads,-would be desirable. It had also been ascertained that the necessary quantity of lands in lieu of the odd sections disposed of within six miles could not be satisfied by alternate sections within the 15-mile limit. In this condition of the matter congress passed the statute on which the result of this litigation depends, which was approved June 2, 1864. 15 U.S. St. 95. This statute, after granting certain relief to the Mississippi & Missouri River Railroad Company and to the Burlington & Missouri River Railroad Company, two other of the land-grant roads in Iowa, proceeds in its fourth section to grant relief to the present plaintiff company.

The fourth section of that act-the one which we are required to construe-reads as follows:

'Sec. 4. And be it further enacted, that the Cedar Rapids &     Missouri River Railroad Company, a corporation established      under the laws of the state of Iowa, and to which the said      state granted a portion of the land mentioned in the title of this      act, may modify or change the location of the uncompleted      portion of its line, as shown by the map thereof, now on file      in the general land-office of the United States, so as to      secure a better and more expeditious line to the Missouri      river and to a connection with the Iowa branch of the Union      Pacific Railroad; and for the purpose of facilitating the      more immediate construction of a line or railroads across the      state of Iowa, to connect with the Iowa branch of the Union      Pacific Railroad Company, aforesaid, the said Cedar Rapids &      Missouri River Bailroad Company is hereby authorized to      connect its line by a branch with the line of the Mississippi      & Missouri Railroad Company; and the said Cedar Rapids &      Missouri River Railroad Company shall be entitled, for such      modified line, to the same lands and to the same amount of      lands per mile, and for such connecting branch the same      amount of land per mile, as originally granted to aid in the      construction of its main line, subject to the conditions and      forfeitures mentioned in the original grant, and, for the      same purpose, right of way through the public lands of the      United States is hereby granted to said company. And it is     further provided, that whenever said modified main line shall      have been established or such connecting line located, the      said Cedar Rapids & Missouri River Railroad Company shall      file in the general land-office of the United States a map      definitely showing such modified line and such connecting      branch aforesaid; and the secretary of the interior shall      reserve and cause to be certified and conveyed to said      company, from time to time, as the work progresses on the      main line, out of any public lands now belonging to the      United States not sold, reserved, or otherwise disposed of,      or to which a pre-emption right or right of homestead      settlement has not attached, and on which a bona fide      settlement and improvement has not been made under color of      title derived from the United States or from the state of      Iowa, within fifteen miles of the original main line, an      amount of land equal to that originally authorized to be      granted to aid in the construction of the said road by the      act to which this is an amendment. And if the amount of land     per mile granted, or intended to be granted by the original      act, to aid in the construction of said railroad, shall not      be found within the limits of the fifteen miles therein      prescribed, then such selections may be made along said      modified line and connecting branch within twenty miles thereof:      Provided, however, that such new located or modified line      shall pass through or near Boonesboro, in Boone county, and      intersect the Boyer river not further south than a point at      or near Dennison, in Crawford county: And provided further,      that in case the main line shall be so changed and modified      as not to reach the Missou i river at or near the      forty-second parallel north latitude, it shall be the duty of      said company, within a reasonable time after the completion      of its road to the Missouri river, to construct a branch road      to some point in Monona county in or at Onawa City; and to      aid in the construction of such branch the same amount of      lands per mile are hereby granted as for the main line, and      the same shall be reserved and certified in the same manner;      said lands to be selected from any of the unappropriated      lands, as hereinbefore described, within twenty miles of said      main line and branch; and said company shall file with the      secretary of the interior a map of the location of said      branch: And provided further, that the lands hereby granted      to aid in the construction of the connecting branch aforesaid      shall not vest in said company, nor be incumbered or disposed      of, except in the following manner: When the governor of the      state of Iowa shall certify to the secretary of the interior      that the said company has completed in good running order a      section of twenty consecutive miles of the main line of said      road west of Nevada, then the secretary shall convey to said      company one-third, and no more, of the lands granted for said      connecting branch. And when said company shall complete an     additional section of twenty consecutive miles, and furnish      the secretary of the interior with proof as aforesaid, then      the said secretary may convey to the said company another      third of the lands for said connecting branch; and when said      company shall complete and additional section of twenty      miles, making in all sixty miles west of Nevada, the      secretary, upon proof furnished as aforesaid, may convey to      the said company the remainder of said lands to aid in the      construction of said connecting branch: Provided, however,      that no lands shall be conveyed to said company on account of      said connecting branch road until the governor of the state      of Iowa shall certify to the secretary of the interior that      the same shall have been completed as a first-class railroad. And no land shall be conveyed to said company situate and     lying within fifteen miles of the original line of the      Mississippi & Missouri Railroad as laid down on a map on file in the      general land-office: Provided, further, that it shall be the      duty of the secretary of the interior, and he is hereby      required, to reserve a quantity of land embraced in the grant      described in this section, sufficient, in the opinion of the      governor of Iowa, to secure the construction of a branch road      from the town of Lyons, in the state of Iowa, so as to      connect with the main line in or west of the town of Clinton,      in said state, until the governor of said state shall certify      that said branch railroad is completed according to the      requirements of the laws of said state: Provided, further,      that nothing herein contained shall be so construed as to      release said company from its obligation to complete the said      main line within the time mentioned in the original grant:      Provided, further, that nothing in this act shall be      construed to interfere with or in any manner impair any      rights acquired by any railroad company named in the act to      which this is an amendment, or the rights of any corporation,      person or persons, acquired through any such company; nor      shall it be construed to impair any vested right of property,      but such rights are hereby reserved and confirmed: Provided,      however, that no lands shall be conveyed to any company or      party whatsoever, under the provisions of this act and the      act amended by this act, which have been settled upon and      improved in good faith by a bona fide inhabitant, under color      of title derived from the United States or from the state of      Iowa, adverse to the grant made by this act, or the act to      which this act is an amendment. But each of said companies     may select an equal quantity of public lands as described in      this act, within the distance of twenty miles of the line of      each of said roads, in lieu of said lands thus settled upon      and improved by bona fide inhabitants in good faith under      color of title as aforesaid.'

We are of opinion that the purpose of this enactment was-(1) To relieve the company from the obligation to build that part of its line as found in the land-office, between the Mississippi river and Cedar Rapids, because there already existed a road between those points built by another corporation. (2) To require the company to connect the city of Lyons with that corporation's road, so that it would be, as originally intended, the Mississippi terminus of the land-grant road across the state. This required the construction of about two and a half miles of road. (3) To authorize the company to change the location of its road yet to be constructed west of Cedar Rapids for its convenience. (4) If this change left the city of Onawa, in Monona county, off the line of the road, they were to build a branch to that place. (5) To construct a new line connecting its existing road with the road from Davenport, on the Mississippi river, to Council Bluffs, on the Missouri river. (6) To adjust the amount of lands to which the company would be entitled under this new order of things, and to enlarge the source from which selections might be made for the loss of that not found in place. This latter it accomplished by declaring that all the sections within the 15-mile limits shall be subject to such selection on the same terms on which only alternate sections could previously be selected; and if this limit, which had exclusive reference to the line first located, did not satisfy the grant, then selection could be made within 20 miles of the new line.

Before proceeding further it is as well to say that the short road connecting the Iowa & Nebraska line with Lyons city was built, the connection with the Mississippi & Missouri River road was not built, and though the new line was located 15 miles or more from Onawa, the branch to that city was not built. The road of this company, as originally located, from Lyons city to the Missouri river, was 345 miles in length, and as constructed by the company, from Cedar Rapids to the Missouri river, it is 271 miles long, making a difference of 74 miles.

The plaintiff in error insists that, under the act of 1864, it is entitled to six sections per mile, as measured by the original location of the road, while defendants assert that the length of the road, as constructed by the plaintiff, is to be taken as determining the quantum of thd grant. This is the first and most important question in the case, as argued by counsel and decided by the supreme court of Iowa in favor of the latter proposition, and its importance depends upon the fact asserted by defendants, that the company has received all the land it is entitled to without resorting to that which they have purchased from the government, and for which they hold its patents. Manifestly, if this be so, plaintiff can have no just claim upon the lands of defendants, though they are all located within the 15-mile limit and outside of the 6-mile limit. It is believed that in no instance of the many grants of public land made by congress to aid in building railroads, has the quantity been measured by any other rule than the length of the road constructed, or required to be constructed, by the grantee or its privy; and it would be the first departure from this principle known to us, if in this case congress intended to give the same amount per mile of land for road not constructed, and from the construction of which the grantee, at its own request was released, as for road which it was required to build and which it actually built. In the case of the additional road required to be built as the Onawa branch, and in the new branch authorized to connect the main line with the Mississippi & Missouri River road, the old rule is adhered to, and a grant made of six sections per mile of this additional road which should be actually constructed. It would therefore require very plain language n that part of the act of 1864, which defines the quantity of land to be taken by the company, under these new circumstances, to justify us in holding it to cover six sections per mile for raod never to be constructed by this company, from the obligation to construct which it was relieved by this very act, and which was then already built by another company having no privity with the grantee in this case. So far, however, from finding this plain language favoring that view, we are of opinion that its fair construction is in accord with the uniform policy of congress on this subject, and with what the circumstances suggest as the reasonable intent of that body.

The section of the act which we have copied, after authorizing the change in the location of the line of the road and the connection with the line of the Mississippi & Missouri River Railroad Company, says: 'And the said Cedar Rapids & Missouri River Railroad Company shall be entitled for such modified line to the same lands, and to the same amount of lands per mile, and for such connecting branch to the same amount of land per mile, as originally granted to aid in the construction of its main line.' If congress simply meant that the company, notwithstanding the change in the line of its road, should have the lands it would have had if it had built the whole of the original line, it would have been easy to express this purpose. In such case no description of the grant, as for such modified line, nor of the same amount of lands per mile, would have been necessary. If such was the purpose, the use of this language was unnecessary and was confusing. If, however, it was the purpose of congress to measure this grant under the new circumstances by the length of the modified line, and give the same number of sections per mile of the line thus modified, the language is, in our opinion, appropriate and unambiguous. The words 'the same lands,' which plaintiff's counsel insist mean all the lands of the old grant, are intended, we think, to show that the lands are to be taken along the line of the old survey; that the odd sections on each side of that old line which became vested in the state when it was established should be a part of the new grant to this company, and that the deficiencies should in like manner be made up by sections within the 15-mile limit of that line. This is confirmed by that part of the next sentence of this section, which directs the secretary of the interior, when the new line shall have been established, to reserve all the lands without regard to alternate sections within that limit, so far as may be necessary to satisfy these selections, for the loss of odd sections previously disposed of. We see no error, therefore, in the ruling of the supreme court of Iowa that the quantity of the grant is to be determined by the length of the new lines, as constructed by the company.

The plaintiff, however, insists that, adopting this principle, there is still a deficiency of the grant of 292,019 acres, to supply which it is entitled to resort to the lands now in possession of defendants. The supreme court of Iowa, in the opinion delivered in the nine cases decided in 1879, conceded that the company had not received the full amount it was entitled to on this basis by about 5,000 acres, but as it had selected lands enough, not including those of defendants, and had not shown that those selections had been abandoned by the company, or disallowed by the land department, they had not shown a case for relief against the defendants. In the Case of Jewell, decided by that court in 1882, it is shown, by a discussion of the deductions claimed by plaintiff, that 24,000 acres have been selected and claimed in excess of what the company is entitled to. The questions on which these deductions depend, and what weight is to be given to the selection of other lands not yet certified to the company or approved by the secretary of the interior, are not free from difficulty, and re to us much more embarrassing than one which the supreme court in its last opinion seemed to have encountered and been unable to decide. In that opinion it is said:

'The counsel for the respective parties have discussed with     great learning and ability the nature of the right which the      railroad company acquired in the land in question by the      passage of the act. We do not care to go into a consideration     of this question. The company, doubtless, as against the     United States, acquired, upon the construction of the road,      the right to select and claim the land as a part of the      intended indemnity, if the deficiency was such as to justify      it. What right the company acquired previous to selection as     against the defendant, a homestead settler, is a question      which presents no little embarrassment, and upon which there      there is not, perhaps, entire harmony in the adjudication. As     to this we are not at present entirely agreed. For the     purpose of the opinion it may be conceded that the plaintiffs      would be entitled to resort to this land if it were necessary      to fill the required indemnity. But it will not be denied     that if the indemnity has been filled, the interest in the      land which the plaintiffs may have had prior thereto would be extinguished. As to     whether it has been filled the parties differ widely. They     differ, also, as to who has the burden of proof upon such      question.'

In the case of Grinnell v. Railroad Co. 103 U.S. 742, this court said, in construing the granting clause of the original act of May 15, 1856:

'So far as lands are found in place whenever this is done,     [that is, the location of the road filed in the proper      office,] not coming within the exceptions as sold, or held      under pre-emption, the title, or at least the right, to this      land in place is at once vested in the state, or in the      company to which the state has granted it, and the means of      ascertaining what lands have passed by the grnat is found in      the map of the line of the road, which is filed in the      general Land-office under the provisions of the statute. As     regards the lands to be selected in lieu of those lost by      sale or otherwise, it may be that no valid right accrues to      any particular section or part of a section until the      selection is made and reported to the land-office, and      possibly not then until the selection is approved by the      proper officer.'

In the case of Van Wyck v. Knevals, 106 U.S. 360, [S.C.. 1 SUP. CT. REP. 336,] the subject is discussed with exclusive reference to the odd-numbered sections specifically granted, and it is there held that the adoption by the company of a surveyed line of the route of its road, and the filing of the map of the same with the secretary of the interior, cuts off the right of entry of these odd sections by any one else, whether there is a proclamation or order withdrawing them or not.

It is obvious, however, that the right to these odd sections, and the right to others in lieu of such odd sections as have been previously disposed of, depend upon very different circumstances, and it is not easy to see how rights can be vested in any particular section or sections of the latter class until it is ascertained how many of the original odd-numbered sections are thus lost, and until the grantee has exercised his right of selection. These latter, unlike the odd numbers within the six-mile limit, are not ascertained and made specific by the protraction of the established line through the maps of the public lands. They are not and cannot be made specific until the grantee's right of selection has been exercised.

This court, in construing the same clause of the grant to the California & Oregon Railroad Company, (14 U.S. St. 239,) said:

'When the road was located and the maps were made, the right     of the company to the odd sections first named became fixed      and absolute. With respect to the 'lieu lands,' as they are     called, the right was only a float, and attached to no      specified tracts until the selection was actually m de in the      manner prescribed.'

'It was within the secondary or indemnity territory where the     deficiency was to be supplied. The railroad company had not     and could not have any claim to it, until specially selected,      as it was for that purpose.' Ryan v. Railroad co. 99 U.S.     382.

But from what shall the selection be made, and how long a time may the grantee have to make his selection? The question presents itself in two aspects, namely: the right to make these selections as against the United States, the grantor of this right, and the right as against a purchaser from the United States before the selection is made. As regards the former, it is only important to consider when it commences in the present case, and we are of opinion that no right of selection in any of these lands accrues until the entire line of the road to be built has been established by the company, and filed in the general land-office at Washington, and that until then no duty devolves on the secretary to withdraw or withhold the land from sale or pre-emption. This is the necessary inference from the language, both of the original grant of 1856 and the amendatory act of 1864. The first declares: 'In case it shall appear that the United States have, when the lines and routes of said roads are definitely fixed, sold any sections or parts thereof granted as aforesaid, or that rights of pre-emption have attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select other lands.' It is only when the line and routes of the roads are definitely fixed that any right of selection exists. This must necessarily be so, because until then the quantity of land lost by the previous disposition of the odd sections cannot be known, and the number of sections to be selected can only then be ascertained. And the act of 1864, under which plaintiff's claim can alone exist, while it directs the secretary to withdraw from sale the lands from which these selections are to be made, only requires this to be done after the new line of the road shall have been so established. The language is:

'And it is further provided, that, whenever said modified     main line shall have been established, or such connecting      line located, the said Cedar Rapids & Missouri River Railroad      Company shall file in the general land-office of the United      States a map definitely showing such modified line and such      connecting branch as aforesaid, and the secretary of the      interior shall reserve and cause to be certified and conveyed      to said company, from time to time as the work progresses on      the main line, out of any public lands now belonging to the      United States not sold, reserved, or otherwise disposed of, *      *  * within fifteen miles of the original main line, an amount      equal to that originally authorized.'

It seems to us quite plain that, as in the original grant, no obligation on the secretary to reserve any of this land from sale arises until the new line is established; that is, surveyed, approved by the directors, and filed in the general land-office. Such is the language of the statute, and the reason for it is the same as in the original statute, that,-as the number of sections the company would be entitled to could not be known until this was done, and the length of the road ascertained, the secretary could not know how much land it was necessary to reserve to satisfy the demand. Of course, until this was done, the sections not included within the six-mile limit were open to sale and pre-emption. The time when it became the duty of the land-officers to suspend these sales was under the control of the company, for whenever they established and filed in the general land-office a map 'definitely showing this modified line of their road,' the duty of the secretary arose, and not until then. This was not done until December 1, 1867, three years and a half after the passage of the act requiring it to be done, under which plaintiff's rights a crued. It is true, a map of part of the line was filed in 1865, but this can in no sense be said to be a map definitely showing the modified line of the road. It showed only a part of it, and left the secretary in ignorance where the road would yet be carried to, and what quantity of land it would be entitled to when finished. In all these cases the requirement has been of a map of the line of the road,-of the whole road, not part of it; a complete, not a partial, map; a map definitely showing that line, as the language clearly means. It was during this delay of three years and a half that the entries were made under which defendants hold the land and acquired the legal title, except in a single instance, made January 4, 1868, before any action of the secretary could be had to withdraw the lands, and it was not until March 16, 1876, that any of the lands in controversy were selected by the company,-an average of 10 years after the rights of defendants had vested. We are of opinion that the defendants had the right to do this in regard to any but the odd sections within the sixmile limit; that there was no contract between the United States and plaintiff which forbid it. No right existed in plaintiff to all these lands, or to any specific sections of them, during this period; no obligation of the government to withdraw them from sale until plaintiff filed a map definitely showing the entire line of its road in the general land-office. The defendants purchased from officers who had the power to sell. They acquired a valid title. If plaintiff has been injured it is by its own laches. If there is no land to satisfy its demand, it is because it delayed over three years to file its map to establish the line of its road, and for years afterwards to make selections. It is unreasonable to say that during all that time these valuable lands were to be kept out of the market, when the country was rapidly filling up with an agricultural population, settling and making valuable farms on them.

The judgments of the supreme court of Iowa are affirmed.


text: Talk:Cedar Rapids Company v. Herring/Opinion of the Court


text:
Taylor v. Bemiss Bemiss

''Geo. S. Boutwell'', for Taylor and Wood.

Enoch Totten, for Bemiss and others.

F. T. Browning, for L. J. Bemiss.

MILLER, J.

title: Taylor v. Bemiss Bemiss


text: Talk:Taylor v. Bemiss Bemiss

title: Talk:Taylor v. Bemiss Bemiss


text:
Taylor v. Bemiss Bemiss/Opinion of the Court

Laura J. Bemiss, widow of John Bemiss, having a claim against the United States pending before the commission commonly called the southern claims commission, under the act of March 3, 1871, employed George Taylor and F. C. Wood, attorneys at law, residing in Washington City, to prosecute said claim, and by an instrument in writing agreed to give them 50 per cent. of the amount which might be recovered. The sum recovered was $27,310, and, under a power of attorney given by her to Mr. Taylor, he received from the treasury the sum of $14,598.33, and Mrs. Bemiss the balance, of $12,711.67. The present suit originates in a bill in chancery brought by Belle Bemiss, Elizabeth Bemiss, and Mattie Bemiss, minor children of Mrs. Bemiss and of her husband, John Bemiss, deceased, to recover of Taylor and Wood, and of Mrs. Bemiss, the money thus received. Mrs. Bemiss makes her answer a cross-bill against Taylor and Wood, and asserts the invalidity of her contract with them for compensation, and prays also that they may be required to refund the money which they received under it. To the bill and cross-bill Taylor and Wood answer, under oath, (and their answer is in no material matter disproved,) that they were employed by Mrs. Bemiss by a letter written from Louisiana, where she resided, asking them to accept a retainer in the case, by reason of a suggestion of a friend of hers in Louisiana, and she offered them 5 per cent. of the amount recovered as their compensation. To this they assented, and inclosed her a contract to that effect, which she signed and returned to them. She also executed a power of attorney to them, authorizing them to manage the case and receive the sum awarded to her. The answer further states that, without any suggestion from them, Mrs. Bemiss employed, at different times, two other attorneys in Louisiana, to each of whom she agreed to pay 10 per cent. of the amount of the award, and that defendants had advanced to Mrs. Bemiss, pending the litigation, the sum of $800, which, with interest to the time they received the money from the treasury, was added to the one-half they were entitled to by the terms of the contract. They also paid the 10 per cent. out of their share to each of the attorneys employed by her, so that, deducting this 20 per cent., and the money advanced to her and its interest, they received for their compensation only 30 per cent. of the money recovered, or $8,193.

It is urged against the validity of this contract of employment that Mrs. Bemiss had no authority to bind her children, the minor heirs of her deceased husband, by such a contract, and that as to their interest in the award it is void. The bill of the minor heirs states that Mrs. Bemiss had been appointed by the proper court in Louisiana uatural tutrix of these children. We are of opinion that this appointment made it her duty to take the necessary legal steps to obtain this money from the United States, and that, whether the suit was brought in her own name or in hers jointly with her children, she was equally bound to prosecute it with diligence, and to do all that was necessary to recover the money. It would be a queer condition of the law if, while it imposed this obligation upon her, it gave her no authority to employ counsel to prosecute the claim before the only legal tribunal which could allow it; and if she could employ counsel, it follows, as a matter of course, she could make a contract for the amount of their compensation. This agreement would bind her as tutrix as well as in her individual right, and it is in both characters she professes to contract. Such undoubtedly is the law of Louisiana, which must govern as to her powers as tutrix, since it is there she was appointed, and there both she and her children resided when she made the agreement with Taylor and Wood. Of her authority to make such a contract tract as tutrix we have no doubt.

Another objection raised is that, since by the act of congress making the appropriation to pay the money, it is expressly made payable to Mrs. Bemiss and her children by name, her authority as tutrix under the Louisiana appointment did not authorize payment to her in the District of Columbia. The subject of such payments by the United States to administrators appointed in the states is very fully discussed in the case of Wyman v. U.S., [ante, 417,] decided simultaneously with the present case, and upon the principles there laid down we are of opinion that payment to Mrs. Bemiss as tutrix under the Louisiana appointment is a valid payment, and that she is responsible under that appointment, and the receipt of the money by herself and by her authorized attorney, to these minors, if they have been wronged. And this is a matter of accounting with them in her fiduciary character of tutrix.

It remai § to be considered whether there is in this contract of employment anything which, after it has been fully executed on both sides, should require it to be declared void in a court of equity, and the money received under it returned. It was decided in the case of Stanton v. Embry, 93 U.S. 548, that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well-known difficulties and delays in obtaining payment of just claims which are not within the ordinary course of procedure of the auditing officers of the government, justifies a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means, residing far from the seat of government, who can give neither money nor personal attention to securing their rights. This, however, does not remove the suspicion which naturally attaches to such contracts, and where it can be shown that they are obtained from the suitor by any undue influence of the attorney over the client, or by any fraud or imposition, or that the compensation is clearly excessive, so as to amount to extortion, the court will in a proper case protect the party aggrieved. While 50 per cent. seems to be more than a fair proportion in the division between client and attorney in an ordinary case, we are not prepared to assume that it is extortionate for that reason alone, and the testimony of the lawyers on that subject, taken as experts, does not justify such a conclusion. In the case before us, it is beyond dispute that the attorneys of Mrs. Bemiss exercised no influence over her what in adjusting the amount of the fee stipulated in the agreement. They had never known her until this employment, and it was through no suggestion of theirs or any agent of theirs that she applied to them. Her first letter to them on the subject made the offer of 50 per cent., and no more was asked for by them. The evidence of two of the judges who composed the court shows that the case was a difficult and complicated one, and that both Taylor and Wood attended to it vigorously, and gave it much time and attention, and that it was in court a considerable time. It seems probable that Mrs. Bemiss was an impatient and not very wise woman, but there is no evidence of such weakness of mind as to incapacitate her from making a contract, and there is absolutely no evidence of any advantage taken of her at any stage of the proceeding. On the contrary, the payment by these principal attorneys of two-fifths of the fee they had contracted for to other attorneys employed by her without consulting them, for which she was bound, while they were not, shows anything but harsh or oppressive conduct, and would go far to mitigate any objection to enforcing the contract founded on the idea of excessive compensation.

We are of opinion that on the appeal of Taylor and Wood the decree of the court below must be reversed, and as the minor children, plaintiffs below, assign no error, because they had no decree against their mother, a decree must be rendered in that court dismissing the bill.


text: Talk:Taylor v. Bemiss Bemiss/Opinion of the Court


text:
Gilmer v. Higley

''Nath. Wilson and J. Hubley Ashton'', for plaintiffs in error.

R. T. Merrick a d M. F. Morris, for defendant in error.

MILLER, J.

title: Gilmer v. Higley


text: Talk:Gilmer v. Higley

title: Talk:Gilmer v. Higley