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United States v. Flanders/Opinion of the Court

This is a suit brought by the United States, in the circuit court of the United States for the Eastern district of Louisiana, against George S. Denison, and the sureties on his bond, as collector of internal revenue for the first collection district of Louisiana, to recover $4,346.84 as public money which he collected and did not pay over. Three of the sureties defended the suit, and on a trial before a jury there was a verdict in their favor, and a judgment accordingly. The United States have sued out a writ of error. The answer sets up that Denison or his estate is entitled to further credits than those allowed to him, which claims for credits he presented to the accounting officers of the treasury, but they disallowed them, to the amount of $4,199.74 on account of his compensation as collector, and to the amount of $777 on account of money paid by him for necessary and legal advertising. The bill of exceptions sets forth that there was evidence tending to show that Denison was appointed collector by a commission dated March 4, 1863; that he took the oath of office, and executed his bond as such collector on the fifteenth of May, 1863, and remained in office until the eleventh of December, 1863; that his accounts were adjusted by the accounting officers of the treasury at various dates subsequent to June 3, 1864, but in these adjustments he had not concurred, and the proper notice had been given to lay the foundation for the introduction of evidence as to the additional credits claimed; that he entered upon the discharge of his official duty as collector on the eleventh of March, 1863, and continued so to act until December 11, 1863; and that his accounts were regularly transmitted monthly during his whole term of office, and at the end thereof, and all prior to June 30, 1864. The counsel for the plaintiffs asked the court to instruct the jury that Denison was not entitled to any compensation as collector prior to May 15, 1863, the date on which he gave the bond and took the oath of office. The court refused to give that instruction, but instead thereof gave the following: That the government could have properly refused to allow Denison to assume the office of collector until he had taken the oath of office and given the requisite bond; that for certain purposes he could not be an officer until he had taken the oath and given the bond; but if the jury found that after he had received his commission, the government permitted him to discharge the duties of the office, and accepted of his services therein prior to the time of his taking the oath and giving the bond, he was entitled to compensation from the time when he commenced to discharge his official duties and his services in the office were accepted by the government; and that it being admitted that he had collected the sum of $577,791.28, he was entitled to compensation at the rate of $833.33 1/3 per month during the time he held the office of collector, counting from the time when, after receiving his commission, he was permitted by the government to discharge the duties of the office, and his services were accepted therein, although, during a portion of such time, he had not taken his official oath, nor given his official bond. To this refusal and instruction there was an exception by the plaintiffs.

It is contended that there was error in the instruction that the collector was entitled to compensation for the time before he took the oath and gave the bond. His commission was dated March 4, 1863, and the government permitted him to discharge the duties of the office, and accepted his services from March 11, 1863. At that time the act of July 2, 1862, (12 St. 502,) was in force which provided that every person appointed to any office of profit under the government, in any civil department of the public service, except the president, should, 'before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe' an oath or affirmation, the form of which is given. Section 4 of the act of July 1, 1862, (12 St. 433,) provided that, before any collector of internal revenue should 'enter upon the duties of his office,' he should give a specified bond, with sureties. The compensation to which Denison was entitled was at the rate of $10,000 a year, under section 34 of the act of July 1, 1862, (12 St. 445.) That section allows the compensation to the collector 'appointed,' in full compensation for his services and those of his deputies. The compensation is by a specified percentage commission, to be computed on the moneys 'paid over and accounted for under the instructions of the treasury department,' the commissions not to exceed $10,000 a year, in any case. The compensation is given by the statute to the collector, when appointed, and is based wholly on the amount of moneys paid over and accounted for. If he is appointed, and acts, and collects the moneys, and pays them over and accounts for them, and the government accepts his services and receives the moneys, his title to the compensation necessarily accrues, unless there is a restriction growing out of the fact that another statute says that he must take the oath 'before being entitled to any of the salary or other emoluments' of the office. But we are of opinion that the statute is satisfied by holding that his title to receive, or retain, or hold, or appropriate the commissions as compensation, does not arise until he takes and subscribes the oath or affirmation, but that, when he does so, his compensation is to be computed on moneys collected by him, from the time when, under his appointment, he began to perform services as collector, which the government accepted, provided he has paid over and accounted for such moneys. This was, in substance, the charge given, and it was correct.

The counsel for the plaintiffs requested the court to instruct the jury that during the time Denison was collector the law did not provide for the reimbursement to collectors of internal revenue of any amount expended by them for advertisements; and that there being no proof that the secretary of the treasury had ever made any allowance to Denison for amounts expended by him for advertisements, nothing could be allowed to the defendants for advertising. The court refused to give that instruction, but gave the following: That 'if, in accordance with the terms of the statute, defendant Denison was required, as collector of internal revenue, to make, and did make, in certain newspapers, certain advertisements for which he was required to pay, and did pay, and if, also, the jury found that the amounts so paid were reasonable and proper amounts, he was entitled to a credit for the amounts so paid by him, although the secretary of the treasury had made no allowance to him therefor.' To this refusal and instruction the plaintiffs excepted. The nineteenth section of the act of July 1, 1862, (12 St. 439,) required the collector to give notices by advertisement that duties were due and payable, and to advertise notices of the sale of articles distrained. The item of $777 for bills for advertising was disallowed by the accounting officers, because section 34 of the act of July 1, 1862, before cited, after providing for compensation, went on to say that there should also be allowed to be collector his necessary and reasonable expenses for stationery and blank books used in the performance of his official duties, to be paid out of the treasury, after being duly examined and certified by the commissioner of internal revenue, and did not include expenses for advertising, and they were not included until provided for by amendment by the act of March 3, 1865, (13 St. 469,) which took effect April 1, 1865. But we are of opinion that, as the statute required the advertisements to be made, the collector was entitled to a credit for the reasonable and proper amounts paid therefor, although such amounts were not formally allowed or certified. It was submitted to the jury to say whether the collector made and paid for the advertisements, and whether they were such as fell within those named in the statute, and whether the amounts paid for them were reasonable and proper. The instruction given is not open to the criticism made that it submitted to the jury a question of law. It was not left to the jury to determine whether the advertising for which credit was claimed was such as the collector was required to make in the sense that it was left to the jury to determine what advertisements the law required to be made. But it must be inferred that the court explained the statute as to the advertisements, and the fair meaning of the instruction is that it was left to the jury to say whether, in view of the advertisements which the statute as explained by the court required, those made by the collector were such advertisements, and were made and were paid for, and were reasonable and proper is amount.

In Andrewe v. U.S. 2 Story, 202, which was a suit on the bond of a collector of customs, Mr. Justice STORY held that expenditures by a collector of customs for office-rent, fuel, clerk-hire, and stationery were properly to be deemed incidents to the office, and ought, therefore, to be allowed as proper charges against the United States, and as a set-off in the suit. In that case, the statute required the collector to keep and transmit accounts of those particular expenditures. The treasury department disallowed them, but the court held that the statute contemplated their allowance, and that the collector had a right to be reimbursed their amount, even though he did not keep or transmit the accounts of them. The view taken was that, if a claim, though not strictly of a legal nature, was ex oequo et bono due to the defendant, for moneys expended on account of, and for the benefit of, the United States, he was entitled to an allowance and compensation therefor, upon the footing of a quantum meruit, under section 3 of the act of March 3, 1797, (1 St. 514.) That statute is now embodied in section 957 of the Revised Statutes, which provides that in all suits against a person accountable for public moneys he may show that he is equitably entitled to credits which have been rejected. In U.S. v. Wilkins, 6 Wheat. 135, 144, this court said of section 3 of the act of 1797 that it supposed that 'not merely legal but equitable credits ought to be allowed to debtors of the United States by the proper officers of the treasury;' that all such credits could be allowed at the trial of the suit; and that a judgment was required for such sum only as the defendant, in equity and justice, should be proved to owe to the United States. This view was affirmed in Gratiot v. U.S. 15 Pet. 336, 370, and in Watkins v. U.S. 9 Wall. 759, 765.

In the present case, the statute required the advertisements to be made, and there is nothing in it which implies that they are to be paid for out of the compensation to be allowed, or that they are not to be reimbursed because they are not named with stationery and blank books, or because 'advertising' was first inserted in the act of 1865. In section 115 of the same act of July 1, 1862, (12 St. 488,) it was provided that the pay of collectors should be paid out of the accruing internal duties or taxes before they were paid into the treasury, and $500,000 was appropriated 'for the purpose of paying' various specified expenses, including 'advertising, and any other expenses of carrying this act into effect.' This advertising was an expense of carrying the act into effect, and was aside from the pay of the collector, and was to be paid out of the treasury, as an expense. The allowance of it by the accounting officers, or otherwise, was not a prerequisite to the right of Denison to have it credited to him in this suit. Campbell v. U.S. 107 U.S. 407; S.C.. 2 SUP. CT. REP. 759.

The judgment of the circuit court is affirmed.


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

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text:
Elk v. Wilkins

A. J. Poppleton and J. L. Webster, for plaintiff in error.

G. M. Lamberton, for defendant in error.

GRAY, J.

title: Elk v. Wilkins


text: Talk:Elk v. Wilkins

title: Talk:Elk v. Wilkins


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Elk v. Wilkins/Opinion of the Court

This is an action brought by an Indian, in the circuit court of the United States for the district of Nebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein. The petition was as follows: 'John Elk, plaintiff, complains of Charles Wilkins, defendant, and avers that the matter in dispute herein exceeds the sum of five hundred dollars, to-wit, the sum of six thousand dollars, and that the matter in dispute herein arises under the constitution and laws of the United States; and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hereinafter complained of he had severed his tribal relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States; and avers that, under and by virtue of the fourteenth amendment to the constitution of the United States, he is a citizen of the United States, and entitled to the right and privilege of citizens of the United States. That on the sixth day of April, 1880, there was held in the city of Omaha (a city of the first class, incorporated under the general laws of the state of Nebraska, providing for the incorporation of cities of the first class) a general election for the election of members of the city council and other officers for said city. That the defendant, Charles Wilkins, held the office of and acted as registrar in the Fifth ward of said city, and that as such registrar it was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election. That this plaintiff was a citizen of and had been a bona fide resident of the state of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a Bona fide resident of Douglas county, wherein the city of Omaha is situate, for more than forty days, and in the Fifth ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and at the time of his attempted registration, as hereinafter set forth, and was in every way qualified, under the laws of the state of Nebraska and of the city of Omaha, to be registered as a voter, and to cast a vote at said election, and complied with the laws of the city and state in that behalf. That on or about the fifth day of April, 1880, and prior to said election, this plaintiff presented himself to said Charles Wilkins, as such registrar, at his office, for the purpose of having his name registered as a qualified voter, as provided by law, and complied with all the provisions of the statutes in that regard, and claimed that, under the fourteenth and fifteenth amendments to the constitution of the United States, he was a citizen of the United States, and was entitled to exercise the elective franchise, regardless of his race and color; and that said Wilkins, designedly, corruptly, willfully, and maliciously, did then and there refuse to register this plaintiff, for the sole reason that the plaintiff was an Indian, and therefore not a citizen of the United States, and not, therefore, entitled to vote, and on account of his race and color, and with the willful, malicious, corrupt, and unlawful design to deprive this plaintiff of his right to vote at said election, and of his rights, and all other Indians of their rights, under said fourteenth and fifteenth amendments to the constition of the United States, on account of his and their race and color. That on the sixth day of April this plaintiff presented himself at the place of voting in said ward, and presented a ballot, and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward, in further carrying out his willful and malicious designs as aforesaid, declared to the plaintiff and to the other election officers that the plaintiff was an Indian, and not a citizen, and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff, for that he was not registered as required by law. Plaintiff avers the fact to be that by reason of said willful, unlawful, corrupt, and mailcious refusal of said defendant to register this plaintiff, as provided by law, he was deprived of his right to vote at said election, to his damage in the sum of $6,000. Wherefore, plaintiff prays judgment against defendant for $6,000, his damages, with costs of suit.'

The defendant filed a general demurrer for the following causes: (1) That the petition did not state facts sufficient to constitute a cause of action; (2) that the court had no jurisdiction of the person of the defendant; (3) that the court had no jurisdiction of the subject of the action. The demurrer was argued before Judge McCRARY and Judge DUNDY, and sustained; and, the plaintiff electing to stand by his petition, judgment was rendered for the defendant, dismissing the petition, with costs. The plaintiff sued out this writ of error.

By the constitution of the state of Nebraska, art. 7, § 1, 'every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector: First, citizens of the United States; second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.' By the statutes of Nebraska, every male person of the age of 21 years or upward, belonging to either of the two classes so defined in the constitution of the state, who shall have resided in the state 6 months, in the county 40 days, and in the precinct, township, or ward 10 days, shall be an elector; the qualifications of electors in the several wards of cities of the first class (of which Omaha is one) shall be the same as in precincts; it is the duty of the registrar to enter in the register of qualified voters the name of every person who applies to him to be registered, and satisfies him that he is qualified to vote under the provisions of the election laws of the state; and at all municipal, as well as county or state elections, the judges of election are required to check the name, and receive and deposit the ballot, of any person whose name appears on the register. Comp. St. Neb. 1881, c. 26, § 3; c. 13, § 14; c. 76, §§ 6, 13, 19.

The plaintiff, in support of his action, relies on the first clause of the first section of the fourteenth article of amendment of the constitution of the United States, by which 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside;' and on the fifteenth article of amendment, which provides that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.' This being a suit at common law in which the matter in dispute exceeds $500, arising under the constitution of the United States, the circuit court had jurisdiction of it under the act of March 3, 1875, c. 137, § 1, even if the parties were citizens of the same state. 18 St. 470; Ames v. Kansas, 111 U.S. 449; S.C.. 4 SUP. CT. REP. 437. The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. Mayor v. Cooper, 6 Wall. 247; Mansfield, C. & L. M. Ry. v. Swan, 111 U.S. 379; S.C.. 4 SUP. CT. REP. 510. And the only point argued by the defendant in this court is whether the petition sets forth facts enough to constitute a cause of action. The decision of this point, as both parties assume in their briefs, depends upon the question whether the legal conclusion, that under and by virtue of the fourteenth amendment of the constitution the plaintiff is a citizen of the United States, is supported by the facts alleged in the petition and admitted by the demurrer, to-wit: The plaintiff is an Indian, and was born in the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still continues to be subject to the jurisdiction of the United States, and is a bona fide resident of the state of Nebraska and city of Omaha. The petition, while it does not show of what Indian tribe the plaintiff was a member, yet, by the allegations that he 'is an Indian, and was born within the United States,' and that 'he had severed his tribal relations to the Indian tribes,' clearly implies that he was born a member of one of the Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the United States. Though the plaintiff alleges that he 'had fully and completely surrendered himself to the jurisdiction of the United States,' he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen.

The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the fourteenth amendment of the constitution. Under the constitution of the United States, as originally established, 'Indians not taxed' were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states; and congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state. General acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. Const. art. 1, §§ 2, 8; art. 2, § 2; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; U.S. v. Rogers, 4 How. 567; U.S. v. Holliday, 3 Wall. 407; Case of the Kansas Indians, 5 Wall. 737; Case of the New York Indians, Id. 761; Case of the Cherokee Tobacco, 11 Wall. 616; U.S. v. Whisky, 93 U.S. 188; Pennock v. Commissioners, 103 U.S. 44; Crow Dog's Case, 109 U.S. 556; S.C.. 3 SUP. CT. REP. 396; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N. Y. 293.

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life; for examples of which see treaties in 1817 and 1835 with the Cherokees, and in 1820, 1825, and 1830 with the Choctaws, (7 St. 159, 211, 236, 335, 483, 488; Wilson v. Wall, 6 Wall. 83; Opinion of Atty. Gen. TANEY, 2 OP. Attys. Gen. 462;) in 1855 with the Wyandotts, (10 St. 1159; Karrahoo v. Adams, 1 Dill. 344, 346; Gray v. Coffman, 3 Dill. 393; Hicks v. Butrick, Id. 413;) in 1861 and in March, 1866, with the Pottawatomies, (12 st. 1192; 14 st. 763;) in 1862 with the Ottawas, (12 St. 1237;) and the Kickapoos, (13 St. 624;) and acts of congress of March 3, 1839, c. 83, § 7, concerning the Brothertown Indians; and of March 3, 1843, c. 101, § 7, August 6, 1846, c. 88, and March 3, 1865, c. 127, § 4, concerning the Stockbridge Indians, (5 St. 351, 647; 9 St. 55; 13 St. 562.) See, also, treaties with the Stockbridge Indians in 1848 and 1856, (9 St. 955; 11 St. 667; 7 Op. Attys. Gen. 746.)

Chief Justice TANEY, in the passage cited for the plaintiff from his opinion in Scott v. Sandford, 19 How. 393, 404, did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: 'They' (the Indian tribes) 'may without doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of a state, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.' But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which 'no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;' and 'the congress shall have power to establish an uniform rule of naturalization.' Const. art. 2, § 1; art. 1, § 8. By the thirteenth amendment of the constitution slavery was prohibited. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303, 306.

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the fourteenth amendment, which provides that 'representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.' Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens. So the further provision of the second section for a proportionate reduction of the basis of the representation of any state in which the right to vote for presidential electors, representatives in congress, or executive or judicial officers or members of the legislature of a state, is denied, except for participation in rebellion or other crime, to 'any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States,' cannot apply to a denial of the elective franchise to Indians not taxed, who form no part of the people entitled to representation.

It is also worthy of remark that the language used, about the same time, by the very congress which framed the fourteenth amendment, in the first section of the civil rights act of April 9, 1866, declaring who shall be citizens of the United States, is 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.' 14 St. 27; Rev. St. § 1992. Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the fourteenth amendment, by being 'naturalized in the United States,' by or under some treaty or statute. The action of the political departments of the government, not only after the proposal of the amendment by congress to the states in June, 1866, but since the proclamation in July, 1868, of its ratification by the requisite number of states, accords with this construction. While the amendment was pending before the legislatures of the several states, treaties containing provisions for the naturalization of members of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 with various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. 14 St. 794, 796; 15 St. 513, 532, 533, 637.

The treaty of 1867 with the Kansas Indians strikingly illustrates the principle that no one can become a citizen of a nation without its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of the tribe. That treaty not only provided for the naturalization of members of the Ottawa, Miami, Peoria, and other tribes, and their families, upon their making declaration, before the district court of the United States, of their intention to become citizens, (15 St. 517, 520, 521;) but, after reciting that some of the Wyandotts, who had become citizens under the treaty of 1855, were 'unfitted for the responsibilities of citizenship,' and enacting that a register of the whole people of this tribe, resident in Kansas or elsewhere, should be taken, under the direction of the secretary of the interior, showing the names of 'all who declare their desire to be and remain Indians and in a tribal condition,' and of incompetents and orphans as described in the treaty of 1855, and that such persons, and those only, should thereafter constitute the tribe, it provided that 'no one who has heretofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members of the tribe, except by the free consent of the tribe after its new organization, and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exercise of the responsibilities of citizenship of the United States, and likely to become a public charge.' 15 St. 514, 516.

Since the ratification of the fourteenth amendment, congress has passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become without any action of the government, citizens of the United States. By the act of July 15, 1870, c. 296, § 10, for instance, it was provided that if at any time thereafter any of the Winnebago Indians in the state of Minnesota should desire to become citizens of the United States, they should make application to the district court of the United States for the district of Minnesota, and in open court make the same proof, and take the same oath of allegiance as is provided by law for the naturalization of aliens, and should also make proof, to the satisfaction of the court, that they were sufficiently intelligent and prudent to control their affairs and interests, that they had adopted the habits of civilized life, and had for at least five years before been able to support themselves and their families; and thereupon they should be declared by the court to be citizens of the United States, the declaration entered of record, and a certificate thereof given to the applicant; and the secretary of the interior, upon presentation of that certificate, might issue to them patents in fee-simple, with power of alienation, of the lands already held by them in severalty, and might cause to be paid to them their proportion of the money and effects of the tribe held in trust under any treaty or law of the United States; and thereupon such persons should cease to be members of the tribe; and the lands so patented to them should be subject to levy, taxation, and sale in like manner with the property of other citizens. 16 St. 361. By the act of March 3, 1873, c. 332, § 3, similar provision was made for the naturalization of any adult members of the Miami tribe in Kansas, and of their minor children. 17 St. 632. And the act of March 3, 1865, c. 127, before referred to, making corresponding provision for the naturalization of any of the chiefs, warriors, or heads of families of the Stockbridge Indians, is re-enacted in section 2312 of the Revised Statutes.

The act of January 25, 1871, c. 38, for the relief of the Stockbridge and Munsee Indians in the state of Wisconsin, provided that 'for the purpose of determining the persons who are members of said tribes, and the future relation of each to the government of the United States,' two rolls should be prepared under the direction of the commissioner of Indian affairs, signed by the sachem and councilors of the tribe, certified by the person selected by the commissioner to superintend the same, and returned to the commissioner; the one, to be denominated the citizen roll, of the names of all such persons of full age, and their families, 'as signify their desire to separate their relations with said tribe and to become citizens of the United States,' and the other to be denominated the Indian roll, of the names of all such 'as desire to retain their tribal character and continue under the care and guardianship of the United States;' and that those rolls, so made and returned, should be held as a full surrender and relinquishment, on the part of all those of the first class, of all claims to be known or considered as members of the tribe, or to be interested in any provision made or to be made by the United States for its benefit, 'and they and their descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States.' 16 St. 406.

The pension act exempts Indian claimants of pensions for service in the army or navy from the obligation to take the oath to support the constitution of the United States. Act of March 3, 1873, c. 234, § 28, (17 St. 574; Rev. St. § 4721.) The recent statutes concerning homesteads are quite inconsistent with the theory that Indians do or can make themselves independent citizens by living apart from their tribe. The act of March 3, 1875, c. 131, § 15, allowed to 'any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations,' the benefit of the homestead acts, but only upon condition of his 'making satisfactory proof of such abandonment, under rules to be prescribed by the secretary of the interior;' and further provided that his title in the homestead should be absolutely inalienable for five years from the date of the patent, and that he should be entitled to share in all annuities, tribal funds, lands, and other property, as if he had maintained his tribal relations. 18 St. 420. And the act of March 3, 1884, c. 180, § 1, while it allows Indians 'located on public lands' to 'avail themselves of the homestead laws as fully, and to the same extent, as may now be done by citizens of the United States,' provides that the form and the legal effect of the patent shall be that the United States does and will hold the land for twenty-five years in trust for the Indian making the entry, and his widow and heirs, and will then convey it in fee to him or them. 23 St. 96. The national legislation has tended more and more towards the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself. There is nothing in the statutes or decisions, referred to by counsel, to control the conclusion to which we have been brought by a consideration of the language of the fourteenth amendment, and of the condition of the Indians at the time of its proposal and ratification.

The act of July 27, 1868, c. 249, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that 'in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship,' while it affirms the right of every man to expatriate himself from one country, contains nothing to enable him to become a citizen of another without being naturalized under its authority. 15 St. 223; Rev. St. § 1999. The provision of the act of congress of March 3, 1871, c. 120, that 'hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' is coupled with a provision that the obligation of any treaty already lawfully made is not to be thereby invalidated or impaired; and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treaty-making power. 16 St. 566; Rev. St. § 2079.

In the case of U.S. v. Elm, 23 Int. Rev. Rec. 419, decided by Judge WALLACE in the district court of the United States for the Northern district of New York, the Indian who was held to have a right to vote in 1876 was born in the state of New York, one of the remnants of a tribe which had ceased to exist as a tribe in that state; and by a statute of the state it had been enacted that any native Indian might purchase, take, hold, and convey lands, and, whenever he should have become a freeholder to the value of $100, should be liable to taxation, and to the civil jurisdiction of the courts, in the same manner and to the same extent as a citizen. N. Y. St. 1843, c. 87. The condition of the tribe from which he derived his origin, so far as any fragments of it remained within the state of New York, resembled the condition of those Indian nations of which Mr. Justice JOHNSON said in Fletcher v. Peck, 6 Cranch, 87, 146, that they 'have totally extinguished their national fire, and submitted themselves to the laws of the states;' and which Mr. Justice MCLEAN had in view when he observed in Worcester v. Georgia, 6 Pet. 515, 580, that in some of the old states 'where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the state have been extended over them, for the protection of their persons and property.' See, also, as to the condition of Indians in Massachusetts, remnants of tribes never recognized by the treaties or legislative or executive acts of the United States as distinct political communities, Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish, 129 Mass. 469; Mass. St. 1862, c. 184; 1869, c. 463.

The passages cited as favorable to the plaintiff, from the opinions delivered in Ex parte Kenyon, 5 Dill. 385, 390, in Ex parte Reynolds, 5 Dill. 394, 397, and in U.S. v. Crook, 5 Dill. 453, 464, were obiter dicta. The Case of Reynolds was an indictment, in the circuit court of the United States for the Western district of Arkansas, for a murder in the Indian country, of which that court had jurisdiction if either the accused or the dead man was not an Indian, and was decided by Judge PARKER in favor of the jurisdiction, upon the ground that both were white men, and that, conceding the one to be an Indian by marriage, the other never was an Indian in any sense. 5 Dill. 397, 404. Each of the other two cases was a writ of habeas corpus; and any person, whether a citizen or not, unlawfully restrained of his liberty, is entitled to that writ. Case of the Hottentot Venus, 13 East, 195; Case of Dos Santos, 2 Brock. 493; In re Kaine, 14 How. 103. In Kenyon's Case, judge PARKER held that the court in which the prisoner had been convicted had no jurisdiction of the subject-matter, because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was truly said, 'this alone would be conclusive of this case.' 5 Dill. 390. In U.S. v. Crook, the Ponca Indians were discharged by Judge DUNDY because the military officers who held them were taking them to the Indian Territory by force and without any lawful authority, (5 Dill. 468;) and in the case at bar, as the record before us shows, that learned judge concurred in the judgment below for the defendant.

The law upon the question before us has been well stated by Judge DEADY in the district court of the United States for the district of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: 'Being born a member of 'an independent political community'—the Chinook—he was not born subject to the jurisdiction of the United States—not born in its allegiance.' McKay v. Campbell, 2 Sawy. 118, 134. And in a later case he said: 'But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.' U.S. v. Osborne, 6 Sawy. 406, 409. Upon the question whether any action of a state can confer rights of citizenship on Indians of a tribe still recognized by the United States as retaining its tribal existence, we need not, and do not, express an opinion, because the state of Nebraska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac v. Chirac, 2 Wheat. 259; Fellows v. Blacksmith, 19 How. 366; U.S. v. Holliday, 3 Wall. 407, 420; U.S. v. Joseph, 94 U.S. 614, 618. The plaintiff, not being a citizen of the United States under the fourteenth amendment of the constitution, has been deprived of no right secured by the fifteenth amendment, and cannot maintain this action. Judgment affirmed.

title: Elk v. Wilkins/Opinion of the Court


text: Talk:Elk v. Wilkins/Opinion of the Court


text:
Adams Company v. Burlington & Missouri River Railroad Company

E. M. Davis and ''Geo. G. Wright'', for plaintiff in error.

S. Shellabarger, J. M. Wilson, and T. M. Stuart, for defendant in error.

WAITE, C. J.

This is a suit in equity brought by Adams county, Iowa, the plaintiff in error, on the twenty-third of December, 1869, against the Burlington & Missouri River Railroad Company, in a state court of Iowa, to quiet its title to 66 40-acre lots of land. The county asserts title under the swamp-land act of September 28, 1850, (9 St. 519, c. 84,) and the railroad company under the Iowa land-grant act of May 15, 1856, (11 St. 9, c. 28.) The company, in its answer, denied the title of the county, on the ground that the lands were not swamp lands within the meaning of the swamp-land act, and took issue on every material averment of fact in the bill to support a title under that act. It then set up its own title under the land-grant act. The petition averred a selection of the lands in dispute, as swamp lands, by Walter Trippett, county surveyor of the county, under the authority of the secretary of the interior and commissioner of the general land-office, as well as the governor and legislature of Iowa, and the report thereof, in due form, to the commissioner of the general land-office, on the thirtieth of September, 1854. On account of this selection and report, it was claimed that the right of the state to a patent for the lands selected was perfected by the act of March 3, 1857, c. 117, (11 St. 251.) The railroad company filed an answer in the nature of a cross-bill asking for affirmative relief on the following facts: 'Petitioner further states that on the twenty-fifth day of October, 1861, the claim or right of said plaintiff to said lands under and by virtue of said pretended selection of said Trippett was submitted to the commissioner of the general land-office for final adjudication, and defendant appeared before said commissioner and resisted the claims of said plaintiff to said lands, and asserted its rights thereto as lands granted to the state of Iowa for railroad purposes, and said commissioner, after full and careful examination of plaintiff's claim, rejected the same as fraudulent and unfounded, and afterwards, on the twenty-fifth of October, 1862, said commissioner certified and conveyed said lands to the state of Iowa for railroad purposes, under and in pursuance of act of congress of date of May 15, 1856, * * * and that on the ___ day of ___ the said state certified and conveyed the same to defendant in pursuance of the said act of the legislature of the said state of date of ___, 1856. * * * Defendant here avers the fact to be that the said plaintiff, well knowing that her claims to said lands were fraudulent and unfounded, did, upon the said decision of the said commissioner against her, voluntarily abandon all claim, right, or interest in said lands, and has, since the date of such decision, and up to the time of the commencement of this suit, recognized and treated defendant as the owner of said lands; that the said county of Adams, since the twenty-fifth day of October, 1861, has, by numerous and repeated acts, not only abandoned all claims to said lands, but has recognized, treated, and acknowledged the same to belong to defendant; that since the date of said decision said county has regularly each year (up to and including the year 1871) listed and assessed said lands as the land of the defendant, and has, since the date aforesaid, regularly levied and collected taxes thereon from defendant. That the taxes thus levied and collected on said lands from defendant since the twenty-fifth day of October, 1861, would, with the legal interest thereon, amount to about ten thousand dollars. That prior to the twenty-fifth of October, 1861, the county had assumed to contract portions of said land to certain individuals under the pre-emption laws, and some of said pre-emptors had taken possession of said land, and made valuable improvements thereon, but that plaintiffs, after that date, ceased to take any further notice or control of said land, or attempt in any manner to fulfill their said agreement with said pre-emptors; and, relying upon their title to said lands, and having every reason to believe, from the acts and conduct of the plaintiff, that she had acquiesced in the decision of said commissioner, and abandoned all claim to said lands, defendant contracted with said preemptors, and with the knowledge of the plaintiff, and without any objections being made by said plaintiff, defendant sold and conveyed by warranty deed parcels of said land aforesaid, and defendant afterwards, and before the commencement mencement of this suit, sold and conveyed by warranty deed these portions of said land to different persons, many of whom are now, and for the last six years have been, in the actual possession of the same, and have made valuable improvements thereon. That on the seventeenth day of June, 1869, the said plaintiff, for the purpose of inducing defendant to bring said lands into market, made and entered into a written contract, whereby she expressly recognized defendant's ownership of said lands, and agreed, in consideration of defendant's bringing said lands into market, and selling the same to settlers, to remit a portion of the taxes that she had levied thereon, and defendant then and there paid to said county the sum of ten thousand dollars as taxes on certain lands, including the land in controversy.'

The prayer was 'that plaintiff's bill may be dismissed, and that defendant have and obtain a decree and judgment quieting their title to said lands, and for costs of this case;' and, if the title of the defendant was not sustained, that there might be a judgment in favor of the defendant and against the county for the taxes that have been paid on the land. Under these pleadings testimony was taken, and the cause heard in the court of original jurisdiction, where, on the eighth of May, 1878, a decree was rendered dismissing the plaintiff's bill, and 'finding that the allegations of defendant's cross-bill are true, and that the defendant is entitled to the relief prayed for; that the lands in controversy * * * were duly certified to the defendant as land inuring to it, as alleged in the cross-bill; that the defendant became thereby the legal owner of said lands, as alleged in the cross-bill; and that plaintiff has, since 1862, recognized and treated said defendant as the owner of said land, as alleged in said cross-bill; and plaintiff is now, by such acts and conduct, estopped from claiming the same or denying the defendant's title thereto.' Upon this finding the decree established the title of the company and quieted it as against the claim of the county. From this decree an appeal was taken to the supreme court of the state, where, on the twenty-fourth of October, 1879, it was affirmed. Thereupon the county presented to the chief justice of the supreme court a petition for the allowance of a writ of error to this court. In this petition it was stated that 'in the pleadings, record, judgment, and decree * * * there was drawn in question the rights' of the county under the swamp-land act and the act of March 3, 1857, as well as the construction of the acts making the railroad grant, and that the decision was against the right claimed by the county. In his certificate of the allowance of the writ the chief justice stated that he found from the record that the 'facts stated in the petition are true.'


text: Talk:Adams Company v. Burlington & Missouri River Railroad Company


text:
Adams Company v. Burlington & Missouri River Railroad Company/Opinion of the Court

The case was several times considered by the supreme court before the final judgment of affirmance was rendered, and the record contains four opinions, filed at different times in the course of the proceeding, from which it appears, in the most positive manner, that the decision of the cause in favor of the company was placed entirely on the ground of estoppel, as set up in the cross-bill. The original title of the county is nowhere, in any of the opinions, disputed or denied. A motion is made to dismiss the writ to this court for want of jurisdiction, on the ground that no federal question is involved. To give us jurisdiction of a writ of error for the review of the judgment of a state court, it must appear affirmatively, not only that a federal question was raised and presented for decision to the highest court of the state having jurisdiction, but that it was decided, or that its decision was necessary to the judgment that was rendered. The cases to this effect are numerous. Murdock v. Memphis, 20 Wall. 590, 636; Chouteau v. Gibson, 111 U.S. 200; S.C.. 4 SUP. CT. REP 340. This record shows that there were two questions presented by the pleadings, to-wit: (1) Whether the county acquired a title in equity to the lands in dispute under the operation of the swamp-land act, supplemented as it was by the act of March 3, 1857; and (2) whether, if it did, it was estopped by its subsequent acts from setting up that title as against the railroad company.

It may be conceded that the first of these questions was federal in its character, but we are clearly of opinion the second was not. A consideration of no act of congress was involved in its decision. There was nothing in the swamp-land grant to prevent the county from surrendering the property to the railroad company, if that was thought best. Under this defense the validity of the original title was not disputed. The claim was that, in legal effect, that title had been ceded to the railroad company, and that the county was in no condition to demand it back. There was no dispute about the federal right itself, but about the consequences of what had been done by the parties in respect to it, after the title had passed in equity from the United States to the county. To our minds, for the purposes of the present question, the case is, in all respects, the same as it would be if the dispute had been about the effect of an instrument intended as a conveyance of the property from the county to the company. The controversy is not as to the right to convey, but as to the effect of what has been done to make a conveyance. That depends, not on federal, but on state law.

It is contended, however, that inasmuch as the alleged compromise between the county and the company included, among other things, the claim of the county for taxes levied on the lands, the right to tax the lands before a patent was issued for them by the United States must have been passed upon by the court below in the decision which was rendered. Clearly this is not necessarily so. The company claims nothing under the taxation. Its rights against the county do not depend on the validity of the taxes. The right to tax was one of the matters in dispute between the county and the company, and that was compromised with the rest. The effect of the compromise upon the title of the county would be the same whether the tax was properly levied or not. It follows, therefore, that the decision of the court below on this branch of the case did not involve the question of the validity of the title set up by the county under laws of the United States. This brings us to the inquiry whether it appears sufficiently that the case was disposed of below on this defense. If it does, the motion to dismiss must be granted, and, having no jurisdiction, we cannot pass on the correctness of that decision.

The record discloses that this separate and distinct defense was made, and that it in no way depended on the validity or invalidity of the original title of the county. In our opinion it is clearly to be inferred from the decree of the court of original jurisdiction, which was affirmed in the supreme court, that the decision in favor of the company was placed entirely on that ground. So far as the original bill of the county is concerned, the decree finds in favor of the company, and dismisses the bill. Then, as to the cross-bill, it finds the legal title to be in the company, and that the county is estopped from claiming the lands, or denying the company's title thereto. This of itself implies that there was in fact no decision against any right, title, privilege, or immunity claimed under the constitution or laws of the United States, and that the decree rested alone on the defense of estoppel, which was broad enough to control the rights of the parties without disposing of the federal question which it was attempted to raise. In other words, it was adjudged by the state court that the title of the company must prevail in this suit because the county was precluded by its conduct from insisting to the contrary. But if we look to the opinions which, under the laws of Iowa, must be filed before a judgment is rendered, and which, when such is the law, may certainly be looked at to aid in construing doubtful expressions in a decree, it is shown, unmistakably, that the decision was put on that ground alone. Gross v. U.S. Mortgage Co. 108 U.S. 486, 487; S.C.. 2 SUP. CT. REP. 940.

In the petition which was presented to the chief justice of the court for the allowance of a writ of error, it was stated 'that in the pleadings, record, and judgment and decree, there were drawn in question' the rights of the county under the swamp-land acts, as well as the construction of the land-grant acts, and that the judgment was against these rights. The chief justice, in his allowance of the writ, certified that he found the statements in the petition to be true; but, if this certificate is to have any effect at all upon this question, it certainly cannot be taken as conclusive when the same chief justice, in an opinion on file in the case, places the decision entirely on the ground of estoppel. It follows that we have no jurisdiction, and the motion to dismiss is granted.


text: Talk:Adams Company v. Burlington & Missouri River Railroad Company/Opinion of the Court


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Nix v. Allen Executrix

A. H. Garland, for appellant.

A. T. Britton, J. H. McGowan, John F. Dillon, and Wager Swayne, for appellees.

WAITE, C. J.

title: Nix v. Allen Executrix


text: Talk:Nix v. Allen Executrix

title: Talk:Nix v. Allen Executrix


text:
Nix v. Allen Executrix/Opinion of the Court

This is a suit in equity, brought by John B. Nix, the appellant, on the second day of May, 1879, enjoin the execution of a judgment in ejectment recovered against him by Thomas Allen, the appellee, on the ___ of April, 1879, for the possession of the W. 1/2 and the S. E. 1/4 of the N. E. 1/4 of section 30, township 15 S., range 28 E., in Arkansas, and to obtain a conveyance of the legal title to the property, on the ground that Allen holds it in trust for him. The case shows that in 1846 Sarah Nix, the mother of John B. Nix, then a minor residing with her, took possession of the whole of the N. E. 1/4 of the section. Mrs. Nix had all the legal qualifications of a premptor, and while in possession built a house on the N. E. 1/4 of the quarter section, and cleared and cultivated a portion of the land on that and on each of the other quarters of the quarter. The principal part of the clearing and cultivation, however, was on the quarter where the house stood. On the ninth of February, 1853, congress passed an act granting lands to the state of Arkansas to aid in building a railroad from a point on the Mississippi, opposite the mouth of the Ohio, to the Texas boundary line, near Fulton, in Arkansas. 10 St. 155, c. 59. The lands now in question lie within the limits of that grant, and were withdrawn from entry on the nineteenth of May, 1853, but the granting act contained the usual reservation in favor of preemption settlers. On the twenty-second of April, 1853, Mrs. Nix made and filed her declaratory statement and proof for the pre-emption of the whole of the N. E. 1/4 of the section. In her statement she fixed the first of April, 1853, as the date of her settlement on the lands. At the time of filing the statement and proof she made no payment. On the twenty-seventh of March, 1854, congress passed the following 'Act for the relief of settlers on lands reserved for railroad purposes,' (10 St. p. 269, c. 25:) 'That every settler on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them: provided, they shall prove up their rights according to such rules and regulations as may be prescribed by the secretary of the interior, and pay for the same before the day that may be fixed by the president's proclamation for the restoration of said lands to market.'

On the thirty-first of March, 1854, Mrs. Nix made a pre-emption cash entry of the N. E. 1/4 of the N. E. 1/4 of the section, and a patent for this tract was issued in her name under that entry on the tenth of December, 1874. In her affidavit to support the entry she fixed the first of April, 1853, as the date of her settlement, the same as in her original declaratory statement. It is now claimed that this entry was not her own act, but the testimony shows unmistakably that it was. She was feeble at the time and unable to go to the land-office herself, but the business was done for her by Benjamin Nix, her nephew and the guardian of John B. Nix, who furnished the money to make the payment from funds in his hands as guardian. Mrs. Nix had no means of her own, and the $50 which was required to pay for the 40 acres was all that John B. had. Neither the mother nor the son was able to buy more than was then entered. On the twenty-eighth of September, 1858, Mrs. Nix conveyed the land she entered to John B., who arrived at full age during the year 1857. Mrs. Nix and John B. Nix lived together in the house on the N. E. 1/4 of the quarter section until her death in 1863, and John B. Remained there down to the time he filed the bill in this case. While occupying the N. E. 1/4 of the quarter they have used and cultivated some part of the other quarters, but the actual residence, both of the mother and son, has always been on the part that was entered by and patented to the mother. Mrs. Nix left other heirs besides John B. Nix, some of whom were living when this suit was begun. On the sixteenth of January, 1855, the state of Arkansas transferred the grant of congress, so far as it related to the lands in dispute, to the Cairo & Fulton Railroad Company, 'subject to all the conditions, limitations, and restrictions contained in the act of congress aforesaid, and in the act of congress entitled 'An act for the relief of settlers on lands reserved for railroad purposes,' approved March 27, 1854.' The act by which this transfer was made contained the following provision: 'That citizens or heads of families, being settlers or occupants previous to the passage of this act on the land herein transferred to the said Cairo & Fulton Railroad Company, shall each be entitled to a preference right of entry of any legal subdivision of land not exceeding one hundred and sixty acres, which shall be upon such legal subdivision as will include the residence of the said settler, which preference right shall be at the price of two dollars and fifty cents per acre, which preference right of entry shall exist from the passage of this act, and for three months after notice has been given for three successive weeks in a newspaper published in the city of Little Rock, that the said land is in market.' Laws Ark. 1854-55, p. 150, § 1. This provision of the act of 1855 was repealed on the twenty-sixth of November, 1856, and the following enacted in its place:

'Sec. 2. Every person who, on the ninth of February, 1853, occupied, by residence and cultivation thereon, any tract of land comprised in the grant made by virtue of, and under the provisions of, such act of congress of February 9, 1853, may purchase from said Fulton & Cairo Railroad Company, at two dollars and fifty cents per acre, the legal subdivision of such land as shall include his residence and actual improvements, not to exceed one quarter section, by complying with the following conditions:

'Sec. 3. Such claimant shall, within three months after said lands are selected and confirmed to said company, and a list or plat thereof filed in the recorder's office in the county in which such lands may lie, file with the auditor of state his own affidavit, accompanied by the affidavits of two disinterested freeholders of his county, describing the land claimed by legal subdivisions, proving the fact of such occupancy, residence, and cultivation upon such legal subdivisions with a view to actual cultivation and settlement, before the day above specified, said company may, by giving reasonable notice to such claimant, appear before the auditor and controvert the facts set forth in such affidavits, and the auditor may swear witnesses, hear proof, and, for cause shown, set aside any such claims: provided, that no such claim shall be set aside for misdescription, or error in form only, founded on mistake; but on affidavit showing such mistake, reasonable time may be given for the filing of corrected proof.

'Sec. 4. Said claimants shall, after three months, or as soon thereafter as said company shall be in a condition to make title, pay to said company the consideration for said land as hereinbefore provided, whereupon he shall be entitled to receive from said company a deed for the same, but in case of failure to file said proof, or pay said consideration money within the respective time specified, the right to make such purchase shall cease.' Laws Ark. 1856, p. 4, §§ 2, 3, 4.

On the first of February, 1859, another act was passed on the same subject, which contained this provision:

'Sec. 3. Be it further enacted, that every person who, on the first day of November 1858, resided on or cultivated any improvement on any of the land comprised in the grant made by virtue of the act of congress approved February, 9, 1853, may purchase from the said Cairo & Fulton Railroad Company, at two dollars and fifty cents per acre, one hundred and sixty acres, which may include the actual residence or the farm of such person, as he or she chooses to elect, by complying with the conditions prescribed by an act passed by the last general assembly of this state, entitled 'An act to amend an act to aid in the construction of the Cairo & Fulton Railroad,' approved January 16, 1855, which act was approved November 26, 1856; and provided, further, that, until such default mentioned in said act, the owners of such improvements shall be entitled to use and occupy the same free of rent or charges.' Laws Ark. 1858-59, p. 62, c. 61, § 3.

And, finally, on the twenty-eighth of March, 1871, the following was enacted:

Section 1. That where any settler, who, on or before the eighth day of March, 1870, was residing and made improvements on the lands belonging or claimed by the Cairo & Fulton Railroad Company, or its branches, shall have the right to purchase the same, not to exceed one hundred and sixty acres, under the legal subdivision of said lands, and including the homestead and improvements of such settler, at not exceeding the rate of two dollars and fifty cents ($2.50) per acre, in preference to any and all other persons, from and after the passage of this act, and for three (3) months after said land has been advertised according to law.

'Sec. 2. That any person authorized to purchase land under the provisions of section one of this act, tender to the authorized agent of said Cairo & Fulton Railroad Company, at the principal office of said company, or at the principal office of the branches of said Cairo & Fulton Railroad Company, and to the authorized agent thereof, the amount of the purchase money of said land, and demand a title therefor, or his preference right thereto shall be barred.' Laws Ark. 1871, p. 289, c. 59.

On the thirteenth of July, 1857, the commissioner of the general land-office certified these lands with others to the Cairo & Fulton Railroad Company under its grant, and on the eighteenth of February, 1858, the company filed in the recorder's office of Lafayette county, which then embraced the lands in dispute, a list of all lands in that county 'selected and confirmed to that company.' On the fifteenth of April, 1874, the land commissioner of the railroad company published in the Arkansas Daily Gazette a notice that the lands of the company between Little Rock and the Texas line would be sold at the office of the company on and after June 16, 1874, reserving, however, mineral lands and lands through which the road ran. The road went through the N. E. 1/4 of this section. The Gazette was a newspaper published at Little Rock, and designated by the governor of the state for the publication of official notices, and the advertisement was continued from the fifteenth of April to the fifteenth of June, 1874. The notice also called on all actual settlers who had not made application to purchase to do so before the day of sale. On the twenty-eighth of July, 1874, John B. Nix went to the land commissioner of the company and claimed the right to purchase the N. E. 1/4 of the section at $2.50 an acre. He, at the same time, tendered $400 in payment of the purchase money, and demanded a conveyance. The commissioner would not admit his right to buy, and refused his tender. On the fourteenth of May, 1875, the company sold and conveyed the lands in dispute, being the 120 acres, to Thomas Allen, the appellee, and on the twenty-third of the same month he began a suit against Nix to recover possession. On the nineteenth of June, 1878, while this suit was pending, John B. Nix made application to the land-officers of the United States, as heir at law of Sarah Nix, to purchase the whole N. E. 1/4 under the pre-emption claim of his mother. At the same time he deposited with the register of the land office $300 'to pay out his mother's pre-emption.' This application was refused.

Upon these facts the court below dismissed the bill, and this appeal was taken from a decree to that effect.

The claim of the appellant is (1) that he has a complete equitable title to the lands under the acts of congress as a pre-emptor; and (2) that if this fails, the laws of the state gave him the right to purchase in preference to all others, and that he fully complied with all the requirements of those laws to complete and perfect his right of purchase before Allen, the appellee, got title. These will be considered in their order.

1. All the rights of pre-emption which the appellant sets up originated with his mother. In his application to enter the lands, made in 1878, he expressly bases his claim on her original settlement, and his inheritance from her. He does not pretend that he made a settlement himself before the rights of the railroad company accrued. In fact, he could not have made such a settlement, because he remained a minor until 1857, and the lands were withdrawn from market in 1853, on account of the railroad grant. Only persons over the age of 21 years could become pre-emption settlers. Such is the express provision of the pre-emption act. If, then, his mother, had she been alive, could not have made a pre-emption entry in 1878, he could not. The settlement and claim of Mrs. Nix were made under the act of September 4, 1841, c. 16, (5 St. 453,) and in that statute it was expressly provided (section 10) that 'no person shall be entitled to more than one pre-emptive right by virtue of this act.' When, therefore, Mrs. Nix, on the thirty-first of March, 1854, made her pre-emption entry of the N. E. 1/4 of the quarter section on which she settled, and as to which she filed her declaratory statement in 1853, she, in law, abandoned her settlement on the other three-quarters of the quarter section for the purpose of pre-emption, and surrendered all the pre-emption rights she ever had in them. This is clearly shown by the provision in section 13, 'that before any person claiming the benefit of this act shall be allowed to enter such lands,' he shall make oath 'that he has never had the benefit of any right of pre-emption under this act.' The right of pre-emption is the right to enter lands at the minimum price in preference to any other person, if all the requirements of the law are complied with. The prior settlement, declaratory statement, and proof are not the pre-emption, but only the means of securing the right of pre-emption. By entering the 40 acres in 1854, Mrs. Nix exhausted the one right of that kind which the law secured to her, and she could not claim another. She could have entered the whole 160 acres at the time if she wished to, and had the money, but such an entry would have required $200, and she had but 50. The 50 would pay for 40 acres, and so she bought that and gave up the rest. The law made no provision for entering a part of the quarter section at one time and saving the right to enter the remainder at another. The averment in the bill, therefore, that the payment of the $50 at the time of the entry of the 40 acres was 'intended as a part payment of the whole,' cannot be true. The law permitted nothing of the kind. The evident purpose of the act of March 27, 1854, was to aid pre-emptors. It gave the designated settlers the right of pre-emption; that is to say, a preferred right to buy the lands on which they had settled under the pre-emption laws at the ordinary minimum price. If a settler had once had the benefit of those laws, this statute gave him no new rights. He could not be a pre-emptor, because he could not take the necessary oath. Consequently, when Mrs. Nix, on the thirty-first of March, four days after the act of March 27th was approved, made her pre-emption entry of the 40 acres, she exhausted all her rights under the act of 1854, as well as those under the act of 1841. It follows that the appellant has no right under the various acts of congress which are relied on.

2. The Arkansas act of 1855, giving settlers and occupants a preference right of purchasing the lands thereby granted to the railroad company at $2.50 an acre, was repealed by the act of November 26, 1856, before either the appellant or his mother attempted to avail themselves of its provisions. The act of 1856 required claimants to file with the auditor of state certain affidavits within three months after the lands were selected and confirmed to the company, and a list and plat thereof filed in the recorder's office of the county in which the lands were situate. The list and plat of these lands were filed in the proper recorder's office on the thirteenth of July, 1857. No affidavits, such as the act required, were ever filed by the appellant or his mother in the office of the auditor of state, and, for this reason, in accordance with the express provisions of section 4, 'the right to make such purchase' ceased as long ago as the year 1857. The act of 1859 did not inure to the benefit of the appellant or his mother for the same reason. The privileges of that act could only be secured 'by complying with the conditions prescribed' in the act of 1856. This reduces the claims of the appellant to such as he has under the act of 1871. That act grants the privilege of a preference purchaser only to a 'settler who, on or before the eighth of March, 1870, was residing and made improvement on the lands belonging to or claimed by the * *  * railroad company,' which he desired to buy. This appellant, on the eighth of March, 1870, resided on the N. E. 1/4 of the quarter section. That land the company neither owned nor claimed. It was entered and paid for by Mrs. Nix in 1854, and she deeded it to the appellant in 1858. His title to that part of the quarter section is not disputed, and his residence has always been there. He cultivated parts of the other quarters of the quarter on the eighth of March, 1870, but he did not reside upon them or either of them. Under the circumstances, his residence was, in law, confined to the land he owned. Seeing this difficulty, he applied for the purchase of the whole quarter section, basing his claim apparently on the original settlement and declaratory statement of his mother for the pre-emption of that tract. In this way he sought to connect his residence upon the N. E. 1/4 with his occupation of the other quarters. That he cannot do, as by the entry of the N. E. 1/4 his mother separated her residence from the rest of the quarter section, and he has done nothing since to change that condition of things. It follows that the appellant is not entitled to the privileges of the act of 1871, and his claim, both under the acts of congress and those of state, has failed. This makes it unnecessary to consider whether the act of 1871 is constitutional. Good or bad, it is of no use to him. The same is true of the claim that the company has no title because at the time the grant was made the land in question was occupied by Mrs. Nix as a pre-emptor. The appellant can recover only on the strength of his own title. If he has no title, it is a matter of no importance how weak that of his adversary may be. Decree affirmed.


text: Talk:Nix v. Allen Executrix/Opinion of the Court


text:
Mersman v. Werges

C. H. Gatch, for appellant.

Galusha Parsons, for appellee.

GRAY, J.

title: Mersman v. Werges


text: Talk:Mersman v. Werges

title: Talk:Mersman v. Werges


text:
Mersman v. Werges/Opinion of the Court

This is a bill in equity, filed in the circuit court of the United States for the district of Iowa, by Joseph J. Mersman, a citizen of Missouri, against Caspar A. Werges and wife, citizens of Iowa, to foreclose a mortgage of her land in Iowa, executed on September 1, 1870, by the husband and wife to E. H. Krueger, likewise a citizen of Iowa, 'to be void upon condition that the said Caspar A. Werges shall pay to the said E. H. Krueger the sum of six thousand dollars as follows, viz., one year from date, with ten per cent. interest thereon, according to the tenor and effect of his promissory note of even date herewith.' The bill originally set forth the note as signed by both husband and wife, but, after the coming in of the answer, was amended by leave of the court so as to allege it to be the note of the husband only. The case was heard upon pleadings and proofs, by which it appeared to be as follows: The husband and Krueger were members of a partnership engaged in carrying on a mill, Krueger being the active partner, and Werges and his wife living on a farm which belonged to her. The plaintiff agreed with Krueger to lend to the husband, for the benefit of the partnership, six thousand dollars on the security of the farm; and the wife agreed, for the accommodation of the partnership, to execute a mortgage of the farm. The husband signed a note, payable to Krueger, or order, and corresponding in terms with the mortgage; and the husband and wife executed the mortgage, and delivered the note and mortgage to Krueger. While they were in Krueger's hands, the name of the wife was subscribed to the note, under that of the husband, by Krueger or by his procurement, without the knowledge or consent of either husband or wife. Krueger indorsed the note, and delivered the note and mortgage to the plaintiff, who thereupon, not knowing that the wife had not herself signed the note, advanced the money to him for the partnership. The circuit court held that the addition of the wife's name to the husband's note was a material alteration of the note, and made void the mortgage; and dismissed the bill. See 1 McCrary, 528; S.C.. 3 Fed. Rep. 378. The plaintiff appealed.

This court is of opinion that the decree of the circuit court cannot be sustained. The difference of opinion is not upon the facts of the case, but upon their legal effect. A material alteration of a written contract by a party to it discharges a party who does not authorize or consent to the alteration, because it destroys the identity of the contract, and substitutes a different agreement for that into which he entered. In the application of this rule it is not only well settled that a material alteration of a promissory note by the payee or holder discharges the maker, even as against a subsequent innocent indorsee for value; but it has been adjudged by this court that a material alteration of a note, before its delivery to the payee, by one of two joint makers without the consent of the other, makes it void as to him; and that any change which alters the defendant's contract, whether increasing or diminishing his liability, is material, and therefore the substitution of a later date, delaying the time of payment, is a material alteration. Wood v. Steele, 6 Wall. 80. See, also, Angle v. ''Northwestern Ins. Co. 92 U.S. 330; Greenfield Savings Bank v. Stowell'', 123 Mass. 196, and cases there cited.

The present case is not one of a change in the terms of the contract, as to amount or time of payment, but simply of the effect of adding another signature, without otherwise altering or defacing the note. An erasure of the name of one of several obligors is a material alteration of the contract of the others, because it increases the amount which each of them may be held to contribute. Martin v. Thomas, 24 How. 315; Smith v. U.S. 2 Wall. 219. And the addition of a new person as a principal maker of a promissory note, rendering all the promisors, apparently, jointly and equally liable, not only to the holder, but also as between themselves, and so far tending to lessen the ultimate liability of the original maker or makers, has been held in the courts of some of the states to be a material alteration. Shipp v. Suggett, 9 B. Mon. 5; Henry v. Coats, 17 Ind. 161; Wallace v. Jewell, 21 Ohio St. 163; Hamilton v. Hooper, 46 Iowa, 515. However that may be, yet where the signature added, although in form that of a joint promisor, is in fact that of a surety or guarantor only, the original maker is, as between himself and the surety, exclusively liable for the whole amount, and his ultimate liability to pay that amount is neither increased nor diminished; and, according to the general current of the American authorities, the addition of the name of a surety, whether before or after the first negotiation of the note, is not such an alteration as discharges the maker. Montgomery R. Co. v. Hurst, 9 Ala. 513, 518; Stone v. White, 8 Gray, 589; McCaughey v. Smith, 27 N. Y. 39; Brownell v. Winnie, 29 N. Y. 400; Wallace v. Jewell, 21 Ohio St. 172; Miller v. Finley, 26 Mich. 249. The English cases afford no sufficient ground for a different conclusion. In the latest decision at law, indeed, Lord CAMPBELL and Justices ERLE, WIGHTMAN, and CROMPTON held that the signing of a note by an additional surety, without the consent of the original makers, prevented the maintenance of an action on the note against them. Gardner v. Walsh, 5 El. & Bl. 83. But in an earlier decision, of perhaps equal weight, Lord DENMAN and Justices LITTLEDALE, PATTESON, and COLERIDGE held that in such a case the addition did not avoid the note, or prevent the original surety, on paying the note, from recovering of the principal maker the amount paid. Catton v. Simpson, 8 Adol. & E. 136: S.C.. 3 Nev. & P. 248. See, also, Gilb. Ev. 109. And in a later case, in the court of chancery, upon an appeal in bankruptcy, Lords Justices Knight BRUCE and TURNER held that the addition of a surety was not a material alteration of the original contract. Ex parte Yates, 2 De G. & J. 191; S.C.. 27 Law J. (N. S.) Bankr. 9.

The case at bar, being on the equity side of the court, is to be dealt with according to the actual relation of the parties to the transaction, which was as follows: The note, though in form made by the husband to his partner, Krueger, and indorsed by Krueger, was without consideration as between them, and was in fact signed by both of them for the benefit of the partnership. The mortgage of the wife's land was executed and delivered by her and her husband to Krueger, for the same purpose. The name of the wife was signed to the note by Krueger, or by his procurement, before it was negotiated for value. The plaintiff received the note and mortgage from Krueger, and advanced his money upon the security thereof, in good faith, and in ignorance that the note had been altered. If the wife had herself signed the note, she would have been an accommodation maker, and, in equity, at least, a surety for the other signers; and neither the liability of the husband as maker of the note, nor the effect of the mortgage executed by the wife, as well as by the husband, to secure the payment of that note, would have been materially altered by the addition of her signature. There appears to us, therefore, to be no reason why the plaintiff, as indorsee of the note, seeking no decree against the wife personally, should not enforce the note against the husband, and the mortgage against the land of the wife. This suit being between citizens of different states, and founded on a negotiable promissory note, the indorsement of which to the plaintiff carried with it as an incident, in equity, the mortgage made to secure its payment, was within the jurisdiction of the circuit court, under the act of March 3, 1875,c. 137, although Krueger, the payee and mortgagee, could not have maintained a suit in that court. 18 St. 470; Sheldon v. Sill, 8 How. 441, 450; Tredway v. Sanger, 107 U.S. 323; S.C.. 2 SUP. CT. REP. 691.

Decree reversed.

title: Mersman v. Werges/Opinion of the Court


text: Talk:Mersman v. Werges/Opinion of the Court


text:
Horbach v. Hill

This is a suit to set aside a sale of certain real property in Omaha, Nebraska, to John A. Horbach, the defendant in the court below, the appellant here, by one John A Parker, Sr., on the ground that it was made to hinder, delay, and defraud the latter's creditors, of whom the complainant claims to be one. The material facts, briefly stated, are as follows:

In March, 1871, one John A. Parker, Jr., died at Omaha, intestate, possessed of certain unimproved real property in that city. He also held a deed of 17 other lots there, which he had purchased of his father in September, 1870. At the time of the purchase he executed to his father an agreement stating that, on a final accounting of all business between them, including the purchase of the 17 lots, he found himself indebted to his father in $8,734, to be paid to him or to certain creditors to be named, within one year, and agreeing, in case he should be relieved from two certain bonds of $3,000 and upwards, to reconvey the lots to his father for a like consideration, and the expenses incurred on them, the amount to be credited on his indebtedness. He left, at his death, no personal estate of any value, and his debts were considerable, among others one of over a thousand dollars to Horbach. His father, who was his sole heir-at-law, and his largest creditor, resided in Virginia, and upon his son's death went to Omaha to attend his funeral. While there, on the twentieth of March, 1871, he sold his interest in the estate of his son, and his interest under the agreement to reconvey the 17 lots, to Horbach, for $6,000, and executed to him a deed of the lots standing in the name of the deceased, and assigned to him the agreement. He also sold and assigned to him the claim against the estate mentioned in the agreement, Horbach agreeing for the claim to pay the debts in Omaha due to himself and others, amounting to a sum not exceeding $2,200. In May, 1871, Horbach, as a cerditor of the estate of the deceased, was appointed its administrator, and qualified. There being no personal effects with which to pay the debts, the real property of the deceased, including the 17 lots, were sold at auction under orders of the proper court, and were purchased by different parties, one of whom, named Kennedy, bought the 17 lots. The sales were reported to the court and confirmed. The proceeds were applied in due course of administration; and in November, 1874, the administrator was exonerated by the court from liability, and his bond canceled. Subsequently, Horbach purchased, at advanced prices, portions of the property thus sold, among others 15 of the 17 lots.

In December, 1877, Edward B. Hill, the complainant in this suit, recovered in the district court of Nebraska a judgment by default against John A. Parker, Sr., for $3,244 and costs, purporting to be owing upon the promissory note described in the petition of the plaintiff. This petition is not in the record, and therefore it does not appear whether Parker was liable as maker or as indorser, or when the note was made, or when it matured. There was no personal service of process upon him, nor did he enter his appearance in the case; the service was by publication. The judgment, reciting that it appearing to the court that the attachment proceedings therein were regular and in conformity to law, ordered the sheriff to sell the real estate attached. What that real estate was does not appear, and that it included the 17 lots can only be inferred from the fact that under the judgment and order they were sold with other real property and conveyed to the complainant. In August, 1878, this suit was brought by him, claiming title to the premises thus purchased, and alleging that the conveyance to Horbach by John A. Parker, Sr., in March, 1871, was made to hinder, delay, and defraud the latter's creditors; that the administration was taken under an agreement to manage and manipulate the estate for his benefit; and that the sales by the administrator were without consideration and fictitious, being in fact made for himself. It therefore prayed that the conveyance by Parker, Sr., to Horbach be adjudged void, and that the complainant be decreed to be the owner in fee of the property. The averments were traversed by the answer, which also set up the agreement to reconvey the 17 lots. A replication being filed, testimony was taken. The case was then referred to a master 'to report on the law and facts as shown by the pleadings and proofs.' He held and reported that, except as to the 17 lots, the purchases at the administrator's sale were valid; that as to them the complainant acquired title under his attachment proceedings; that the deceased, as to them, was mortgagee; that the deed of Parker, Sr., to Horbach was made when he was largely in debt to the complainant and others, and for the purpose of hindering, delaying, and defrauding his creditors, and that Horbach knew this; that the purchase of those lots by Kennedy at the administrator's sale was in good faith, but with notice that the title of the deceased was that of mortgagee only, and that hence no title was acquired; and that no title passed through Kennedy to Horbach because of like notice, and therefore the complainant was entitled to a decree to quiet his title. Exceptions were taken to the report, but they were overruled, and it was confirmed and a decree entered adjudging that the 17 lots were, at the commencement of the suit, the property of the complainant, and directing the defendant to convey the same to him, and, in default thereof, that the decree should stand in lieu of such conveyance, and that the defendant should be barred of all interest in the property, and deliver possession thereof to the complainant. From this decree this appeal is brought.

W. D. Davidge, for appellant.

No counsel for appellee.

[Argument of Counsel from page 147 intentionally omitted]

FIELD, J.

title: Horbach v. Hill


text: Talk:Horbach v. Hill

title: Talk:Horbach v. Hill


text:
Horbach v. Hill/Opinion of the Court

There are several fatal objections to the decree in this case. In the First place, there is no evidence affecting the good faith of the sale and conveyance from Parker, Sr., to the defendant, in March, 1871. It was known that the deceased owed several debts, and as there were no personal effects, that the real property was liable to be sold for their payment. Under these circumstances, the price paid by the defendant is not shown to be inadequate. And there is no evidence that he had any knowledge of the debt of Parker, Sr., to the complainant. So, whatever may be suggested or surmised as to possible fraudulent intentions of Parker, Sr., in the conveyance, its validity cannot be questioned in the absence of any evidence of participation in them by the defendant. The fraud which will vitiate a sale must be mutual; that is, must be intended by both parties, or by one with knowledge of the other's purpose, and thus acquiesced in and furthered. Here all such participation was wanting on the part of the purchaser.

In the second place, if the conveyance by the father to the defendant be treated as invalid, the title to the lots passed by the administrator's sale, and the subsequent deed in pursuance of it. The master found that the purchase by Kennedy at that sale was in good faith, but was void because of his knowledge that the property was held by the deceased as mortgagee, and that the defendant acquired no title from Kennedy because of like notice. But the conclusion that the conveyance by the father to the son was a mortgage was a mere assumption, not warranted by the accompanying agreement. There was no obligation resting on the father to make the payments mentioned in that agreement and claim a reconveyance. He had an option to do so, and then he was not merely to repay the consideration given by the son, but in addition thereto he was to obtain a release of two bonds by him exceeding $3,000 in amount. Upon such release the vendee agreed to reconvey the lots for the original consideration and the expenses incurred on them. There were no extraneous facts shown to explain the object of executing the papers, such as a previous indebtedness of the father, or a liability on his part to secure the son against the bonds mentioned. Nor did it appear to whom the bonds were issued, nor for what consideration. Nor was it averred that the transaction was in any respect different from what the instruments imported-a sale to the son. The agreement can therefore be considered only as an independent contract to reconvey the lots on certain conditions. The assumption that the conveyance of the father to the son was a mortgage being unfounded, the objection to the purchase by Kennedy falls. That being valid, the deed received by him passed a good title, which he transferred to the defendant.

In the third place, there is no evidence that the complainant was a creditor of Parker, Sr., in March, 1871, when the conveyance was made to the defendant. The attachment suit was commenced by publication in August, 1877, and in December following judgment by default was rendered. This was more than six years after the conveyance. It does not appear when the alleged debt, upon which the attachment proceedings were founded, accrued. The allegation of the bill that Parker, Sr., was largely indebted to the complainant and others, and was insolvent when he conveyed to the defendant, is not sustained by the evidence. Indeed, there is no evidence in relation to his financial condition and means at that time. The testimony that he brought a summons in another suit against him to the office of the party who was then drawing the deed is contradicted; and, even had this been so, the fact would not militate against the validity of the transaction. He had a right to dispose of his property in the ordinary course of business for a valuable consideration, and the defendant had a right to purchase it. The complainant, not showing that he was at the time a creditor, cannot complain. Even a voluntary conveyance is good as against subsequent creditors, unless executed as a cover for future schemes of fraud.

So, in any way in which this case can be considered, the bill cannot be sustained. The decree must therefore be reversed, and the case remanded, with directions to dismiss the bill; and it is so ordered.

title: Horbach v. Hill/Opinion of the Court


text: Talk:Horbach v. Hill/Opinion of the Court


text:
City of Fort Scott v. Hickman

J. D. McCleverty, for plaintiff in error.

S. E. Brown, for defendant in error.

BLATCHFORD, J.

title: City of Fort Scott v. Hickman


text: User:Gunner Pocketer

title: User:Gunner Pocketer


text: Talk:City of Fort Scott v. Hickman

title: Talk:City of Fort Scott v. Hickman