text:
Huntington v. Texas

ERROR to the Supreme Court of the District of Columbia; the case being thus:

The United States, on the 1st of January, 1851, issued to the State of Texas for the sale of a portion of her north-western territory, five thousand coupon bonds of $1000 each, numbered successively from No. 1 to No. 5000, and 'redeemable after the 31st day of December, 1864.' They were made on their face all payable 'to bearer,' and declared to be transferable on delivery. The oupons, which extended to December 31st, 1864, and no farther, were equally payable 'to bearer.' These bonds were known as Texas indemnity bonds.

On the 16th of December, 1851, in anticipation of the bonds being delivered to it, the State of Texas passed an act, authorizing their governor to receive them from the United States,

'And when received, to deposit them in the treasury of the State of Texas, to be disposed of as may be provided by law; provided, that no bond issued as aforesaid, as a portion of the said $5,000,000 of stock, payable to bearer, shall be available in the hands of any holders until the same shall have been indorsed in the city of Austin, by the governor of the State of Texas.'

After this act of December 16th, 1851, and between that day and the 11th of February, 1860, the State of Texas passed thirteen different acts providing for the sale or disposal of these same bonds; for lawful State purposes; as ex gr., paying the public debt of the State; the erection of a State capitol; to establish a system of schools, &c., &c.; none of these acts requiring in terms an indorsement of the bonds by the governor, as required in the above-quoted act of December 16th, 1851, nor any of them designating by numbers on them the particular bonds to be appropriated to the particular objects authorized. Subsequently to this again, the rebellion having broken out, and the State having gone over to the rebel side, and there being a large number of these bonds still undisposed of in the State treasury, the legislature of Texas, by an act of January 11th, 1862, repealed the act of December 16th, 1851 (making an indorsement necessary), and the then authorities of Texas, in January, 1865, sold or transferred certain of the bonds to two persons, White and Chiles, for the purpose of aiding the rebellion. In the cases of Texas v. White & Chiles, and Texas v. Hardenberg, in this court, it was determined that as against the true, that is to say, the loyal State of Texas (citizens of which had stopped payment of them at the Federal treasury), no title had passed to bonds which had been thus transferred; and that notwithstanding the transfer, the reconstructed State might reclaim the bonds or their proceeds.

How many bonds were transferred to White and Chiles, or what were their exact numbers, was not perfectly ascertained; but it was well known that the bonds transferred to White and Chiles did not comprise the whole issue for $5,000,000, and that some of them had been transferred under one of the thirteen enactments already mentioned.

In this state of things the State of Texas brought suit in the court below against one Huntington, cashier of the First National Bank of Washington, for the alleged conversion of thirty-seven of the five thousand bonds, originally issued to the State.

Of these thirty-seven bonds, ten had been held by one Haas, and were presented and filed at the Treasury Department in July, 1865, by him. After payment of them had been officially recommended by the first comptroller of the treasury, Huntington, at the request of Haas and his attorney, Mr. F. P. Stanton, advanced to them the money on the warrant expected to be issued. Haas accordingly, by letter, dated September, 1866, addressed through his attorney to the Secretary of the Treasury, requested that payment should be made to Huntington; and a few days afterwards, that it to say in September, 1866, payment was so made.

As to thirteen others, they were presented and filed in October, 1865, by Huntington himself, and paid to him on the 25th of January, 1866.

The remaining fourteen had like the ten been held by Haas, and were presented and filed by him, and after payment of them had been officially recommended, & c., as in the case of the ten, Huntington, at the request of Haas and his attorney, advanced to them the m ney on the warrant expected to be issued, and Haas by letter, dated January 1st, 1866, addressed through his attorney to the Secretary of the Treasury, requested that payment should be made to Huntington, who, in regard to these fourteen also, had advanced the money to be paid on them. A few days afterwards payment of these fourteen was so made.

The reader will thus understand that thirteen bonds were presented by and paid to Huntington himself, while the remaining twenty-four had never come in any way into his hands; his only relation to them whatever having been that after the presentation of them by others and the official recommendation of payment of them, he had advanced the amount of the warrant expected to be issued, to the former holders of the bonds, now surrendered to the treasury, and taken from them a request to the Secretary of the Treasury that the amounts due should be paid to him.

When the first ten (of Haas's) bonds were paid, the claim of the State of Texas in relation to bonds said to have been illegally transferred, in January, 1865, to White and Chiles, had not been made known to the Treasury Department; but the fact that the State had a claim in relation to such bonds had been communicated to Huntington before the 25th of January, 1866, the date of the payment of the thirteen bonds which he had himself presented and received payment of. Huntington then stated that he had bought the bonds in October, 1865, before hearing of that claim, and on the faith of the payment in September of the bonds presented in the name of Haas by Mr. Stanton.

In the absence of Knowledge whether or not the bonds presented by Huntington were affected by the claim of the State referred to, the comptroller recommended their payment.

It also appeared-or at least the defendant's evidence tended to show this-that before purchasing the thirteen bonds presented for payment in October, 1865, Huntington made inquiries at the Treasury Department for the purpose of ascertaining whether it had any objection to the payment of them; that he was informed by the officers to whom he applied of no objection to their payment, and that they thought they would have to be paid; and that he accordingly purchased them at 96 cents in gold.

It appeared that during the rebellion the Secretary of the Treasury had decided not to pay the coupons of Texas indemnity bonds, except where the bonds were indorsed by some loyal governor of the State. When the rebellion terminated, the question as to the payment of these bonds, as they reappeared, became so urgent that it was taken into consideration by the First Comptroller of the Treasury at the request of the Secretary of the Treasury; and, on August 15th, 1865, that officer furnished the secretary with an elaborate opinion, recommending the payment of unindorsed bonds to holders who received them in good faith. In accordance with this opinion the department commenced the redemption of these bonds, and payments were made as rapidly as the cases which had accumulated could be examined. After notice reached the department of the discovery of the White & Chiles transactions, there was a temporary suspension of the redemption of bonds, which it was suggested might have passed through their hands. The department made efforts to ascertain the numbers of the bonds involved in that transaction, and all practicable endeavors to protect any interest which the State of Texas might have in the premises; and after finding it impossible to determine the numbers and description of the bonds involved in that transaction, the department proceeded as before with the redemption of indemnity bonds, under the opinion of the comptroller of August, 1865; the comptroller, in each particular case, examining the bonds and recommending their payment. Huntington made occasional inquiries at the department with reference to the indemnity bonds, and was informed from time to time as to the condition of the question there. He was informed of the determination of the department to delay the redemption of bonds long enough to ascertain whether it was possible to do anything to protect the interests of the State of Texas in the bonds issued to White & Chiles, and subsequently that it was impossible for the department to give any information relative to the numbers and description of the White & Chiles bonds.

In compliance with a request of the plaintiffs, the court below instructed the jury that the government of Texas, from August, 1861, to July, 1865, was a usurping government, incapable of performing any act which could legally divest the title to property of the State, and that if the jury should find that the bonds in question were alienated by that government or its agents, that such alienation passed no title; also, that the defendants could acquire no title to the bonds without the indorsement of them by a governor of Texas loyal to the United States, also, that if the defendants took the bonds after maturity, they took them subject to the right of property in them of the State of Texas; and finally, that if the bonds were transferred after maturity by persons exercising authority in Texas and at war with the United States, then no matter how or from whom received by the defendants, they were still the property of the plaintiff, and that the act of defendants in procuring payment of them from the United States Treasury, if that was done, was a conversion, and made the defendants liable for their value with interest.

And in compliance with a request of the defendants, the court instructed the jury, in effect, that if the bonds were presented to the Treasury Department by holders other than the defendants, and payment was ordered, and afterwards by the then holders the proceeds were directed to be paid to the defendants and were received by them without ever having had possession or control of the bonds, or having claimed title to them, such receipt of the proceeds did not amount to a conversion by the defendants.

The defendants excepted to the first instruction (their exception being a tenth exception taken by them), and the plaintiff excepted to the second instruction.

In accordance with the first of the above instructions, the jury found for the plaintiffs the value of the thirteen bonds, paid on the 25th of January, 1866, and in accordance with the second for the defendants as to the other twenty-four.

The case was now here on the cross-exceptions.

Messrs. J. Hubley Ashton and W. S.C.ox, for Huntington, cashier of the bank:

1. As to the tenth (the defendant's) exception. These bonds were negotiable, and by the decisions of this court are to be put on the footing of negotiable paper. The title, therefore, is not affected by anything short of actual notice. They are presumed, also, to have been received before maturity; and even if proved to have been taken by their last holders when overdue, these may protect themselves under one who took it before maturity, and protect themselves, even though they had notice of an infirmity in the title, if they derive their title to the instrument from a prior bon a fide holder for value.

2. Now, although the defendants purchased the bonds which they deposited for redemption, after they were redeemable, there is no evidence that the party from whom they purchased had not received them before maturity. The presumption is the other way; and defendants, standing in their place, are to all legal intents, prim a facie the holders before maturity, in good faith, and for a valuable consideration, of these negotiable securities.

3. We are met with the objection, however, that by the act of the legislature of Texas, of December 16th, 1851, the bonds ceased to be negotiable unless they were indorsed by the governor of the State, and that this court has held in Texas v. White & Chiles, and Texas v. Hardenberg, that the act of the rebel legislature of January 11th, 1862, repealing the act of December 16th, 1851, is wholly void. To this we reply, that as far as this act of January 11th, 1862, was in aid of the rebellion, it has been declared by this court to be void. But, it is submitted, that with this exception only, it was valid; and it fully authorized a transfer of the bonds unindorsed, if issued for any lawful and innocent object.

It appears from various acts of the legislature of Texas, thirteen in number, passed from January 31st, 1852, to February 11th, 1860, that the State had authorized the sale or disposal of quantities of these bonds, exceeding in the aggregate, in fact, the whole $5,000,000 in the treasury of the State. For all the objects and uses contemplated by this series of acts passed prior to the rebellion, and, therefore, of unquestionable validity, the repeal of the act of December 16th, 1851, was not a nullity; and bonds issued and put into circulation under these acts, were negotiable and available in the hands of holders, without the indorsement of the governor. A large amount of the bonds may have passed from the treasury of Texas into circulation under these acts, long before their maturity, without the governor's indorsement, and the title of the holders of such bonds would unquestionably be good. If any of the bonds remained in the treasury of the State, whether to the general account, or to special accounts, they may thus have been lawfully put into circulation, unindorsed, long before the White & Chiles transaction.

Thus, the purchaser of bonds would see that by a series of laws, covering the whole amount of these bonds, they might have been lawfully put into circulation before maturity, without the governor's indorsement. As these several laws did not designate any particular bonds, any of them might have been issued under any of the laws, without regard to these particular numbers. The purchaser would discover that, under any one of more than a dozen different laws enacted prior to the rebellion, the bonds offered to him might have lawfully issued before maturity. He would, therefore, buy bonds of the United States expressed on their face to be transferable by delivery without notice of anything affecting the negotiability of the particular bonds.

This series of enactments was not brought to view in the arguments in Texas v. White & Chiles, or Texas v. Hardenberg, and was not, therefore, considered by the court.

The instruction excepted to by the plaintiff. This related to the bonds that were not owned or controlled by the defendants. As to these bonds, the facts show no case of conversion. The defendants never had possession, use, or control of them. They simply took an assignment of the debt of the United States for the bonds, after they had been delivered up to the government by the holder.

Messrs. R. T. Merrick and T. J. Durant, for the State, contra, relied upon the cases of Texas v. White & Chiles, and Texas v. Hardenberg, as deciding all the questions in this case as to the bonds purchased by the bank. They contended that, under those decisions, Texas indemnity bonds, in the condition of the present ones, unindorsed, and taken after maturity, could not be validly transferred, so as to convey title, even to an innocent purchaser for value.

Upon the question as to the conversion of the bonds never owned by the bank, they cited McCombie v. Davis, and Snow v. Leathem.

The CHIEF JUSTICE delivered the opinion of the court.

title: Huntington v. Texas


text: Talk:Huntington v. Texas

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

title: Talk:Huntington v. Texas


text:
Huntington v. Texas/Opinion of the Court

We have held in Texas v. White & Chiles and Texas v. Hardenberg,

1. That when a State by public statute requires the indorsement of its governor as a prerequisite to the valid transfer of bonds belonging to it, and payable to itself or bearer, the holder o such bonds, without such indorsement, will have no title as against the State, unless he can show the consent of the State otherwise given to the transfer.

2. That an act repealing the statute requiring the indorsement of the governor, passed by the legislature when the State is in rebellion against the United States, is a nullity as to bonds issued without such indorsement, and for the purpose of aiding the rebellion.

3. That such bonds remain the property of the State and may be reclaimed, or the proceeds thereof recovered in a proper action by that State when the rebellion has ceased, against any one in possession of the same, with notice of the intent with which they were issued and used.

4. That the existence of the rebellion at the time of the repealing act, was a public fact with notice of which all persons were charged, and that when the bonds were purchased after they had become payable, the purchaser took them subject to all the equitable rights of the State when its relations to the Union had been restored.

But it must be observed that we have not held that such a repealing act was absolutely void, and that the title of the State could in no case be divested. On the contrary, it may be fairly inferred from what was said in Texas v. White, that if the bonds were issued and used for a lawful purpose, the title passed to the holder unaffected by any claim of the State. Title to the bonds issued to White & Chiles was held not to be divested out of the State, because of the unlawful purpose with which they were issued, and because the holders were, in our opinion, chargeable with notice of the invalidity of their issue and of their unlawful use.

If, in that case, there had been proof that a large portion of the bonds issued without the indorsement of the governor, were in fact issued for legitimate objects, and were applied to legitimate purposes, no presumption could have arisen from the absence of that indorsement that the particular bonds which were the subject of controversy in that case, had been issued without authority and for an unlawful purpose. If, for example, it had appeared that bonds to a large amount had been issued unindorsed, and applied to the support of schools, or to the maintenance of asylums for the insane, for the deaf mute, or the blind, or to other purposes equally legitimate, the presumption, especially after payment by the United States, would have been in favor of the holders of bonds and not against them. We say especially after payment by the United States, for the United States were the obligors in the bonds, and it was against the United States that the rebellion had been waged, and it was primarily the duty of the government to ascertain and decide whether the bonds had or had not been issued and used in aid of rebellion, and had, therefore, presumptively passed into the hands of holders not entitled to payment as against the reconstituted State of Texas.

The action of the government in refusing payment, during the war, of the coupons of the unindorsed bonds, increased the significance of its action in paying not only the coupons, but the bonds themselves, after the war had terminated. The bonds and coupons could only have been paid on proof, satisfactory to the government, that the title of the State had been divested by its actual authorities for some legitimate purpose, or if otherwise, then to parties not chargeable with notice of the unlawful issue and use. Any other payment would have been a wrong to the reconstituted State.

There was no such proof in either of the cases formerly decided. Whether there was evidence in the present case establishing the fact of unlawful issue and use, and the further fact of notice to the defendants, within the principles heretofore laid down, as now explained and qualified, is for the jury.

We think it unnecessary to examine all the exceptions taken in this case. We shall confine ourselves to the tenth exception taken by the defendants, and to the one taken by the plaintiffs.

We think that the instruction, embodied in this tenth exception, was calculated to mislead the jury. Indeed it could hardly fail to do so. Whether the alienation of the bonds, by the usurping government, divests the title of the State, depended, as we have said, upon other circumstances than the quality of the government. If the government was in actual control of the State, the validity of its alienation must depend on the object and purpose of it. If that was just in itself and laudable, the alienation was valid; if, on the contrary, the object and purpose were to break up the Union and to overthrow the constitutional government of the Union, the alienation was invalid. So the most that could be said of the absence of the indorsement of the governor, was that it raised a presumption against the validity of the alienation, not that no title to the bonds could be obtained without such indorsement. So, too, it cannot have been correct to say without qualification that the defendants took the bonds, if originally transferred by persons exercising authority in Texas, at war with the United States, subject to all the equities existing against the usurping government. That would depend upon the character and object of the original transfer. And the final proposition of the instructin must be qualified according to these principles, to make it conform to the law as we understand it.

But in our judgment, the instruction given upon the request of the defendants and excepted to by the plaintiff, was quite correct. We are entirely satisfied with it. We think it clear that no one other than a holder of the bonds, or one who, having held them, has received the proceeds, with notice of the illegal transfer for an illegal purpose, can be held liable to the claim of the reconstituted State. After presentment, recognition, and order of payment, any one, never having held or controlled the bonds, may receive the proceeds upon a proper order. In such a case the State must look to the United States, if bonds still belonging to her have been paid to third parties, after presentment and allowance, in favor of holders without good title.

But while we sustain this ruling, the judgment, for erroneous instructions in other respects, must be REVERSED, and the cause must be remanded for further proceeding

IN ACCORDANCE WITH THIS OPINION.


text: Talk:Huntington v. Texas/Opinion of the Court


text: United States v. Huckabee

title: United States v. Huckabee


text: Talk:United States v. Huckabee

title: Talk:United States v. Huckabee


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

ERROR to the Circuit Court for the Middle District of Alabama; the case being thus:

In the year 1862, soon after the outbreak of the late rebellion, one C. C. Huckabee and three other persons, formed under the general laws of Alabama a corporation called 'The Bibb County Iron Company;' Huckabee being president, and the other corporators, directors; and, with him, the only stockholders. As the name of the corporation indicates, its object was the working in iron; its particular machinery being such as made it capable of manufacturing cannon, and other munitions of war. Rolling-mills were erected, and lands, slaves, and mules bought.

When the company had thus got fairly going, the rebel government sent one of its officers to Huckabee, the president, requiring him and the corporation to make a contract with the Confederacy, to deliver iron to it at a uniform price named. [The iron had been furnished at the price named, for some time before this, but no formal contract to furnish it uniformly at that price existed.] Huckabee refused to make any such contract. Finally, being sent for again by the agents of the rebel government, he was told that the agreement under which the iron was then furnished was not a contract, and that he must make a contract. He then consulted with his stockholders, and the result was that the company refused to make any contract. He was then sent for a third time, and told that the company must either contract on government terms, or lease the works, or sell them to the Confederate States, and that otherwise the works would be impressed. Th company resolved, after some weeks consideration, to sell. The influences which operated on the owners, according to the statement of Huckabee, the president, were these:

'We owed a large amount of money, about $300,000, and our debts were increasing. We knew that if we contracted we could not pay our debts and get back our capital. To lease would have been ruinous; and as we had been informed that if we did not either contract, lease, or sell, the works would be impressed, we regarded it best to sell. It cannot say that there could not have been other reasons influencing the minds of other corporators than myself to join in the resolution authorizing the sale.'

It appeared that during most of the time that the iron company had been in operation, a guard from the rebel army had been in control of it, so far as to see that it sent no iron away except to the rebel authorities. And moreover that the rebel powers possessed an almost despotic power over the whole body of skilful laborers in the region.

The sale was made, and a deed executed under the corporate seal and the hands of the president and all the other corporators, three in number, September 13th, 1863. The consideration was $600,000, Confederate money, which was duly paid, and after a discharge of the corporate debts, divided among the stockholders; the persons who had executed the deed. Confederate money was at this time worth one-fourteenth of the same amount in Federal money.

The deed recited that at a meeting of all the stockholders, held on September 9th, 1863, it was resolved unanimously that the president be authorized, for the sum of $600,000, to sell to the Confederate States all lands, negroes, mules, &c., and to execute deeds of warranty; and that the party of the second part agreed to pay the said sum for the said property, provided the said stockholders united in the conveyance. The deed contained full covenants of warranty. More than a month subsequently to its date, to wit, on the 25th November, 1863, it was acknowledged before the probate judge, as having been 'executed voluntarily on the day of its date.'

The Confederate government from that time managed the works, casting great quantities of cannon, shell, shot, and other implements of war, which were used to maintain the rebellion.

In March, 1865, the property was captured by the government army. It remained for a short time under the military forces, and was then taken possession of by the Treasury Department as captured and abandoned property, and the rebel confederacy having become now extinct, on the 3d of February, 1866, after public notice, was sold for $45,000 to Francis Lyon, for himself and others, by the Commissioner of the Bureau of Refugees, Freedmen, and Abandoned Lands, under the authority of the President and Secretary of the Treasury. Prior to the sale Lyon went to Huckabee and asked him if the title was good. He said he believed it was; and declined a suggestion of Lyon to take part in the contemplated purchase (which he said he would like to do), because he had not the money at the time. The sale having been made the money was paid, and a deed executed. The sale was confirmed by act of Congress, approved December 15th, 1866, which 'released and confirmed to the said Lyon any interest which the United States had in the land described.'

Prior to all this, that is to say, on the 1st of October, 1865, the District Attorney of the United States, describing himself as 'prosecuting for the United States and an informer,' had exhibited an information in the District Court for the Middle District of Alabama (in which the property was), against it (describing it), 'said to belong to the late so-called Confederate States of America,' and praying process to enforce the seizure, condemnation, and confiscation of the same.

This proceeding was made under the act of August 6th, 1861, which enacts that if during the then existing rebellion,

'Any person or persons. . . shall purchase, or acquire, sell, or give a y property. . . with intent to use or employ the same, or suffer the same to be used and employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein, or if any person or persons being the owner or owners of any such property, shall knowingly use or employ, or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned.

'The Attorney-General or any district attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.'

Things stood in this way from October 1st, 1865, when this information was filed, till the 30th of May, 1866, when Lyon and his co-purchasers were in possession. On that day, Huckabee and his co-corporators in the old Bibb County Iron Company appeared as claimants of the property against which the information had been filed, asserting that they and no other persons were 'the true and legal owners' of it, and that the property had not been knowingly used and employed with the consent of the owners in aiding, abetting, and promoting the rebellion, but, on the contrary thereof, that the said property was built with the money and labor of them, the said respondents, and for their sole use, and was never voluntarily employed in the way alleged. They set up also that they had all been pardoned for all participation in the rebellion.

On the 24th of October, 1866, the Assistant Attorney-General of the United States wrote from Washington to the District Attorney in Alabama to dismiss the proceedings in confiscation instituted by him, the property having been sold to Mr. Lyon by the Commissioner of the Freedman's Bureau, 'unless Mr. Lyon should prefer that, for the purpose of securing and perfecting the title, be should desire them to be continued for his own use and benefit; and in that case the proceedings will be carried on in the name of the United States, at the cost and charges of Mr. Lyon.'

Soon after this, that is to say, on the 26th of November, 1866, and obviously with a view of carrying out the suggestion of securing and perfecting the title in Lyon, Lyon and his co-purchasers came forward, and were made defendants. They set out the original ownership of 'The Bibb County Iron Company,' the sale by it to the Confederate States, with the full knowledge of the purpose to which the property was to be applied, the capture, in March, 1865, of the property by the Federal army, and the subsequent sale and conveyance, by authority of the United States, to them.

An amended information was also filed, setting out pretty much what was in the original one, but setting out in addition the capture of the property by the forces of the United States, and the sale and conveyance by the government to Lyon and his co-purchasers, the act of Congress confirming it, all fully and in form, but still asking process of seizure, condemnation, and confiscation as before.

Lyon answered this amended information, setting out the history down to his deed, a copy of the deed, and a copy of the act of Congress confirming his title.

Huckabee and his co-corporators also answered this amended libel, setting up that 'the so-called Confederate States were not a legal government, but existed by mere force and compulsion, and that it therefore never had any capacity under the laws of the United States or under the law of nations to acquire the title to ands;' setting up also that the deed given was executed under duress.

In this state of things the case came on for hearing, when the District Court dismissed the libel and amended libel, and made a decree vesting the property in Huckabee and his ancient co-corporators or their assigns. From that decree the United States and Lyon and his co-purchasers appealed.

Mr. J. T. Morgan, in support of the decree below:

I. The libel and amended libel were both rightly dismissed.

1. As to the amended libel. This is no more than an effort to procure a confiscation under the statutes of the property in confirmation of the title of Mr. Lyon. The original libel was by the United States and an informer. The amended one is in reality by the United States, Lyon and his co-purchasers (in the interest of him and them) against Huckabee and the original owners. The amended answer of Lyon is but a form, an admission of and support to the main parts of the amended libel. But the Confiscation Statutes are war measures, and the use of their great powers and of their extraordinary process for any purpose which concerns only private interests is wholly anomalous and improper.

2. As to the original libel. The amended libel shows an act of Congress approved 15th of December, 1866, by which title is declared to be in the United States and to be granted to Lyon. It destroys the case made in the original libel. No ground of confiscation by the government such as the original libel sets up can therefore exist.

3. Admitting, for argument's sake, that the process prescribed in the Confiscation Acts could be used by private persons in the anomalous way attempted by Mr. Lyon, still on his own showing he and his co-purchasers (who are, in fact, complainants against Huckabee and his co-corporators) have a perfectly good title. They allege a valid sale to the Confederate government, the capture of the property by the United States, the extinction of the Confederate government, and a sale to them by the United States confirmed by Congress. They do not allege any claim by anybody, or any cloud on their title. They seek to confiscate a title which, according to their own showing, has no existence whatever. If they have the perfectly good title that they allege they have, then for any disturbance to their rights they have, of course, a full, adequate, and complete remedy at law. The fact that they may really feel, or even know, that they have not a good title, and are seeking through the extraordinary process of a confiscation to get one, does not alter the case, so far as this proceeding is concerned.

II. The relief given to Huckabee and the original corporators was rightly granted.

1. The power of the Confederate States to acquire title to lands must depend on their being a government. No legal authority for their existence can be found. 'Confederate States' was the name merely for certain people engaged in rebellion, a rebellion opposed by law as well as by arms throughout the United States.

The deed therefore which was made by Huckabee and his associates passed no title to the Confederate States. There was no grantee; no person or legal entity to receive. The consideration was illegal. It was made for an illegal purpose. It conveyed lands and other property for the express purpose of assisting the military operations of the States in rebellion. It was made by persons engaged in rebellion, contrary to the statutes of the United States prohibiting conveyances of property by such persons, and the United States government, if it had the power, never waived this violation of law, and confirmed the title, nor did it do any act that could be so construed until after the surrender, and after it had proceeded in court to confiscate and condemn the lands so conveyed, setting up, in its proceeding, the making of such conveyance as the ground of forfeiture.

Congress has never admitted that the government o the United States acquired title to lands from or through the Confederate States, either by capture, succession, or treaty. Such an admission necessarily implies that the Confederate States had enough of legal corporate capacity to hold a title to lands; and this fact conceded, it must have had sovereignty, for it did not pretend to hold lands otherwise than as a sovereign power.

2. The deed was made by duress. It was made under such constraint as left the grantors without that freedom of choice and will that is essential in every contract. The owners made all the resistance they could make when they refused to contract. If they contracted, they could not pay their debts and get their capital back. If they leased they were 'ruined.' Nothing remained but to sell or be impressed. A rebel guard was in possession of the works. They sold. Did they not sell under duress?

The American cases, including the leading one of Foshay v. Fergurson, strongly support the doctrine that there is no sound distinction between cases of threat or mischief to property, or to the person or good name, 'because consent is of the essence of the contract, and where there is compulion there is no consent,' and there is compulsion when one's person or property is seriously threatened with mischief, or where 'a man's necessities may be so great as not to admit of the ordinary process of law, to afford him relief.'

Mr. P. Phillips, contra (for the plaintiff in error):

Conceding that Mr. Lyon could not try the validity of this title in the way in which he sought to do it, and that the libel and amended libel were properly dismissed, how did the court, after all, pass upon the title and award the property to the counter-claimants? If the court had no jurisdiction it ought to have dismissed the whole case; the libel, amended libel, and all the claims, leaving all parties just where they were originally.

For its deciding on the conflicting titles, its decree must certainly be reversed, and the course we speak of pursued.

It is hoped, however, that the court may find fit opportunity in reversing this decree, to express its opinion on the title set up by Huckabee and others, and so give quiet to the title which the government has conveyed to Lyon and his associates; and in this hope, and in reply to what has been said as to the merits of the title, we have to say:

The facts stated do not make duress any definition of that word as given by this court in cases which both say the same thing, and only iterate old law.

The case of Foshay v. Fergurson, relied on by the other side, and which carries this doctrine to its greatest length, is no support for the present case. The judge there says:

'I do not intend to say that a man can avoid his bond on the ground that it was procured by an illegal distress on his goods; but I entertain no doubt that a contract procured by threats and fears of battery, or the destruction of property, may be avoided on the ground of duress.'

In this case there was no destruction threatened, but only impressment, which may be likened to a distress.

But if duress in fact existed this would not make the conveyance void, but voidable only, and a bon a fide purchaser for valuable consideration, without notice, would hold the estate against the original grantor.

And in such a transaction, if the party on whom the duress has been practiced stands by and allows the defendant to purchase, this will bar his right of recovery. Much less will he be permitted to recover when on inquiry made by the intended purchaser he advises him that his title is g od.

And if a party seeks to set aside his conveyance rather than to affirm it, he can only do so by a restoration of the consideration received for it.

Suppose the deed from the corporation could be avoided, for duress, this could only be done by the corporation itself. The corporation may and must appear by its constitutional organs or curators. The appearance of each and every member is no appearance at all.

In Broke's Abridgment, under the head of 'Duress,' (pl. 18) citing 21 Edward IV, 8, 14, 15, we find the following:

'Dures ne poit este al corps politique, mes poit este al Maior de faire chose apparetignant a son office, PER OPTIMEM OPINIONEM, ''car il est teste del corporat. Imprisonment del teste del natural corps en pillorie, est imprisonment de tout le corps, car entier''.'

And in Brownlow it is said that a husband may avoid a deed on account of the duress upon his wife, and so a mayor and commonalty may avoid a deed on account of duress of imprisonment of the mayor, for there is identity of person.

The title of the United States to the premises was acquired by actual capture, and also by its right of succession to the overthrown and extinct government.

It is argued that the deed was absolutely void, because the Confederate States were incapable of being a grantee-that it was not 'a person or legal entity'-and being engaged in rebellion was opposed by law as well as arms throughout the United States.

If the Confederate government was incapax, in reference to a deed for land, it was equally incapable of being a party to any contract whatever, and yet we know as a fact that the government of the United States has been maintaining suits in foreign countries as the successor of the Confederate States, and claiming rights through them, and has received into the treasury millions of money derived from property sold by others to them.

It is too late-if ever it was soon enough-to raise this question; for this court, as early as 1868, in Thorington v. Smith, described the Confederate States as 'a government, called by publicists, a government de facto, but more aptly denominated a government of paramount force,' and repeated decisions since have affirmed the same principle.

Mr. Justice CLIFFORD delivered the opinion of the court.

Pleadings, in informations for seizures upon land, or for confiscation of property, as well as in causes of admiralty or maritime jurisdiction, or in actions at law, or suits in equity, are governed by certain well-established rules of practice, which require that the allegations shall correspond with the facts as proved, and that the information, as in the case of a libel, declaration, or bill of complaint, if filed in a Federal court, shall show that the court has jurisdiction of the cause of action. Proper parties in all cases are also required, and in all cases, except where there is a set-off or cross-action, the damages or relief sought, if the cause of action is sustained, should be adjudged and awarded to the party promoting the suit and not to a stranger; and if the cause of action is not sustained the judgment or decree should be for the opposite party, whether respondent or defendant.

Laws were passed by Congress at the commencement of the late rebellion, to prevent combinations to oppose the laws of the United States, and to provide for the confiscation of property used in the insurrection, and to that end all persons were forbidden by an act of Congress to 'purc ase or acquire, sell or give any property, of whatsoever kind or description, with intent to use or employ the same or suffer the same to be used or employed in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person or persons engaged therein;' and the provision was, that if any person, being the owner of any such property, shall knowingly use or employ or consent to the use or employment of the same as aforesaid, all such property shall be the lawful subject of prize and capture wherever found, and it was made the duty of the President to cause the same to be seized, confiscated, and condemned.

Pursuant to that act the district attorney exhibited an information against a certain tract of land, therein described, containing three thousand six hundred acres, with the improvements thereon, known as the Bibb County Iron Works, which belonged to the late Confederate States, and which, as he alleges, had been previously seized by the marshal under an order of seizure duly issued; and he also alleges that the property had, for several years, been knowingly used and employed by the owners, or with their consent, in aiding, abetting, and promoting the late insurrection and rebellion, and in aiding, abetting, and promoting persons engaged in the insurrection, rebellion, and resistance to the laws and authority of the United States, and that the property, during those years, had been knowingly used and employed by the owners, or with their consent, as a place for the mining and manufacturing of iron ore into all kinds of machinery and implements for military purposes by persons engaged in armed rebellion and resistance to the laws and public authorities, contrary to the statute in such case made and provided. Service was made and the present defendants appeared and claimed to be the true and lawful owners of the property, and they deny in separate and distinct articles in the answer every material allegation of the information. Apart from that they also allege that they have severally received special pardon and full amnesty from the President for all past offences connected with the late war of the rebellion, and that they respectively have fully complied with all the terms and conditions of the several pardons, and therefore that the property should be restored to them as the rightful owners.

Prior to the rebellion the property in question was owned by a corporation known as the Bibb County Iron Company, and it appears that the present plaintiffs, at this stage of the litigation, entered their appearance in the suit, and being admitted to become parties and make claim, they alleged that the property belongs to them as the joint owners of the same; that the original owners sold the property to the late Confederate States for the sum of six hundred thousand dollars and then and there received payment in full for the same, and executed to the grantees a title-deed of the premises with full covenants of warranty, and that the purchasers took full possession of the property with all the appurtenances appertaining to the same; and they also aver that the grantors were fully advised of the objects and purposes for which the property was purchased, which were to furnish the grantee with iron to be used in manufacturing arms and munitions of war to be used in prosecuting the rebellion, and that the same was held, used, occupied, and enjoyed by the grantees as the undisputed owners until the same was captured by our military forces, having been used throughout that period as the efficient means of furnishing iron for arms, cannon-balls, and shells; that the property was subsequently captured from the Confederate States by our military forces and was put up and sold at public auction by the Assistant Commissioner of the Bureau of Refugees, Freedmen, and Abandoned Lands, who was authorized and lawfully empowered to sell and convey the same in that manner, and that the plaintiff claimants, or one of them, in behalf of himself and the others, became he purchasers for the sum of forty-five thousand dollars, that being the highest and best bid made for the same, and that the said commissioner, being thereto duly authorized by the President and Secretary of the Treasury, conveyed the property to the plaintiff claimants.

Beyond doubt those allegations were entirely inconsistent with the theory of the original information, as they show that the property, at the time the information was filed, was vested in the grantees of the United States, by virtue of a deed duly executed, and given for a valuable consideration paid by the purchasers, who, it is admitted, have never committed any such acts of forfeiture as those charged in the information. Allegations of the kind, however, are not sufficient without proof to oust the jurisdiction of the court. But the district attorney subsequently filed an amended information, and he also alleges that the property was captured from the Confederate States, and that the same was seized by order of the President, and that it was, by his order and that of the Secretary of the Treasury, sold to the highest bidder as captured property belonging to the United States, and that the same was purchased, as aforesaid, by the plaintiff claimants for the sum stated in the claim of the grantees. Such an averment in the information is sufficient proof of the fact, as against the prosecutor, especially as he confirms the allegation by referring to the act of Congress, which provides that any interest which the United States have in the lands described in the deed. . . be and the same is hereby released and confirmed to the said grantees.

Absolute condemnation of the property to the United States was claimed in the first pleading, but the district attorney substantially admits, in the amended information, that no such decree can be entered, as he avers that the property is liable to condemnation, in confirmation of the title of the grantees under the United States, which would be a proceeding wholly without precedent in the jurisprudence of the United States.

Responsive to that, the present defendants filed an amended answer excepting to the amended information; because it appears that the United States have no longer any interest in the prosecution, as they have released their right in the property to the other claimants, and because the jurisdiction of the court is ousted as relates to the property sought to be condemned.

It also appears that C. C. Huckabee, one of the present defendants, filed a separate answer, in which he alleges that he is the sole owner of a certain described portion of the lands mentioned in the information; and he also avers that the deed conveying the same to the Confederate States, which he and his associates gave, was executed under duress, and in obedience to the commands of an unlawful power, which neither he nor they could resist, and that the deed is void on that account; and he denies that the lands were ever captured by our military forces, or that the lands were ever seized under any warrant of seizure, as alleged in the information. Hearing was had upon the merits before the court, the parties having waived a jury and filed a stipulation to that effect. Witnesses were examined and other proofs were introduced, and the court entered a decree dismissing both the original and the amended informations.

Such a decree is usually regarded as exhausting the jurisdiction of the court, except in maritime cases, where there is a fund in the registry of the court to be restored to the rightful owner, but the court in this case proceeded to adjudge and decree that the claim of C. C. Huckabee, one of the defendants, be allowed and sustained to certain rights and privileges therein mentioned, including all the timber on a described portion of the lands, and the right of cutting and transporting the same, and that the title to the said described lands be adjudged to be in the said claimant, and that the marshal restore the possession of the said lands to the said claimant, and that the claim of all the defendants be sustained and allowed to another described portion of the lands in controversy, including also the right to the timber for certain purposes, and to the iron-ore in certain described localities; and it was also adjudged and decreed that the present plaintiffs, except the United States, should pay the costs of the suit. Exceptions were taken by the present plaintiffs to the rulings of the court and to the decree, and they sued out the present writ of error.

Evidence of the most satisfactory character, consisting of the deed signed by the corporation and by the several defendants, who owned all of the stock of the company, was introduced by the United States to show that the lands and improvements in question were conveyed by the original owners to the Confederate States, and that the purchasers paid to the grantors the agreed consideration of six hundred thousand dollars, and it appeared that they entered into full possession of the premises and used and employed the lands and improvements for the purposes alleged in the amended information. Equally satisfactory evidence was also introduced by the United States to show that the entire property was captured by our military forces during the war of the rebellion, and that the whole premises were sold under the orders of the President, as alleged, and that the same were conveyed by the commissioner who conducted the sale for the consideration of forty-five thousand dollars to the plaintiff claimants, or to one of them, for his benefit and that of his associates.

Subsequent to the capture by our military forces, the possession of the lands and improvements was continued in the United States, until the sale and conveyance by the said commissioner to the present grantees, on the third of February, 1866, at which time they received possession of the premises from the commissioner, and have continued in possession of the same to the present time, under an absolute deed from the commissioner, conveying to the grantees all the right, title, and interest which the United States had in the property at the time of the sale and conveyance, which conveyance has since been confirmed by an act of Congress.

Four principal grounds are assumed by the present defendants in support of the decree dismissing the informations, and the supplemental decree granting affirmative relief to the present defendants: (1.) That private persons, other than mere informers, cannot join with the United States in prosecuting an information for the confiscation of property, nor can the United States prosecute such a suit for the mere purpose of confirming the title of a third party. (2.) That the jurisdiction of the court was ousted by the sale and conveyance of the property to the grantees in the deed from the said commissioner, it also appearing that the conveyance was subsequently confirmed by an act of Congress. (3.) That the property was not subject to capture by our military forces, as the deed from the original owners to the Confederate States was void, having been executed by the owners of the property under duress. (4.) That if the grantees under the United States have a good title, then the court below had no jurisdiction of the case, as they have, if disturbed in their possession, a plain, adequate, and complete remedy at law.

Enough appears in the act of Congress forbidding the owners of property to use and employ it or to suffer it to be used and employed for such a purpose, with their consent, to show that the first objection is well taken, as it is made the duty of the President to cause the same to be seized, confiscated, and condemned, and the provision is that the proceedings for condemnation may be instituted by the attorney-general or by the district attorney of the proper district, and that the proceedings instituted by those officers 'shall be wholly for the benefit of the United States;' nor is the force of the objection in any degree obviated b the fact that the same section of the act provides that any person may file an information with one of those officers, and that, in that state of the case, 'the proceedings shall be for the use of such informer and the United States in equal parts,' as it is clear that the latter clause of the section affords no support to the theory that private persons, other than an informer, may join with the United States in prosecuting such an information, or that the United States may prosecute such a suit for the mere purpose of confirming the title of a third party.

Informations of the kind should propound in distinct articles the causes of forfeiture, and should aver that the same are contrary to the form of the statute in such case made and provided, and the rule is that inasmuch as the information is in the nature of a criminal proceeding, the allegations must conform strictly to the statute upon which it is founded, which is sufficient to show that the theory of the amended information cannot be sustained.

2. Property owned by the United States certainly is not subject to confiscation under the information in this case, and inasmuch as it appears that the property was seized, sold, and conveyed by the order of the President, as alleged in the amended information, and that the conveyance so made has been confirmed by an act of Congress, the second objection must also be sustained, as it must be assumed, in view of what is alleged in the information and fully proved, that the property at the time of the sale and conveyance belonged to the United States.

3. Duress, it must be admitted, is a good defence to a deed, or any other written obligation, if it be proved that the instrument was procured by such means; nor is it necessary to show, in order to establish such a defence, that actual violence was used, because consent is the very essence of a contract, and if there be compulsion there is no binding consent, and it is well settled that moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient in legal contemplation to destroy free agency, without which there can be no contract, because in that state of the case there is no consent. Unlawful duress is a good defence to a contract if it includes such degree of constraint or danger, either actually inflicted or threatened and impending, as is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness. Decided cases may be found which deny that contracts procured by menace of a mere battery to the person, or of trespass to lands, or loss of goods, can be avoided on that account, as such threats it is said are not of a nature to overcome the will of a firm and prudent man; but many other decisions of high authority adopt a more liberal rule, and hold that contracts procured by threats of battery to the person, or of destruction of property, may be avoided by proof of such facts, because, in such a case, there is nothing but the form of a contract without the substance. Positive menace of battery to the person, or of trespass to lands, or of destruction of goods, may undoubtedly be, in many cases, sufficient to overcome the mind and will of a person entirely competent, in all other respects, to contract, and it is clear that a contract made under such circumstances, is as utterly without the voluntary consent of the party menaced, as if he were induced to sign it by actual violence; nor is the reason assigned for the more stringent rule, that he should rely upon the law for redress, satisfactory, as the law may not afford him anything like a sufficient and adequate compensati n for the injury. Much discussion of the topic, however, is unnecessary, as the record does not exhibit any sufficient evidence, in either point of view, to support such a defence or to warrant the court in finding for the defendants upon any such ground, which is all that need be said upon the subject, as it is obvious that that objection cannot be sustained.

4. Argument to show that the court below had no jurisdiction of the case if the plaintiff claimants had a good title to the premises, is hardly necessary, as both the pleadings and evidence show that they were in the possession of the lands and improvements when the prosecution was commenced. Sufficient has been remarked to show that their title is a good one as against the United States, and it is quite clear that the present defendants do not have any such standing in the pleadings in this information as to give them the right to call it in question, as the suit is one in the name and for the benefit of the United States. Such being the character of the suit, the mistake of the district attorney in supposing that it might be prosecuted to confirm the title of the plaintiff claimants, cannot have the effect to give the court any jurisdiction of the case, much less to give the court jurisdiction to determine that the title to the premises is in the defendants and to eject the plaintiffs, holding under the United States, and to decree that the possession of the lands and improvements shall be delivered to the defendants. What the district attorney expected to accomplish by continuing to prosecute the information after the seizure and sale of the property by the United States is not perfectly certain, unless he supposed the court might treat the information as one in the nature of a bill in equity to remove a cloud upon the title of the grantees under the United States, arising from the pretence of the present defendants that the deed which they executed to the Confederate States was void as having been procured by duress. Concede that, still it is evident that it was an attempt to accomplish what the court under such a pleading had no jurisdiction to grant, as the parties interested were citizens of the same State, and no such issue was alleged in the information, and if there had been, and the parties had been citizens of different States, it would nevertheless be clear that the court could not grant any such relief under any process founded upon the act of Congress, entitled an act to confiscate property. Doubtless a bill in equity would lie, in a proper court, to remove a cloud upon their title, but it is obvious that for any encroachment upon their possessions they had a plain, adequate, and complete remedy at law. They claimed title under the United States, and the record shows that the title of the United States was derived by conquest from the government of the late Confederate States. Our military forces captured the property while it was in the possession of the Confederate States as means for prosecuting the war of the rebellion, and it appears that the captors took immediate possession of the property and continued to occupy it under the directions of the executive authority until the government of the Confederate States ceased to exist and the unlawful confederation became extinct, when it was sold by the orders of the executive and conveyed to the plaintiff claimants.

All captures in war vest primarily in the sovereign, but in respect to real property, Chancellor Kent says, the ac uisition by the conqueror is not fully consummated until confirmed by a treaty of peace, or by the entire submission or destruction of the state to which it belonged, which latter rule controls the question in the case before the court, as the confederation having been utterly destroyed no treaty of peace was or could be made, as a treaty requires at least two contracting parties. Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States. Conquered territory, however, is usually held as a mere military occupation until the fate of the nation from which it is conquered is determined, but if the nation is entirely subdued, or in case it be destroyed and ceases to exist, the right of occupation becomes permanent, and the title vests absolutely in the conqueror. Complete conquest, by whatever mode it may be perfected, carries with it all the rights of the former government, or in other words, the conqueror, by the completion of his conquest, becomes the absolute owner of the property conquered from the enemy, nation, or state. His rights are no longer limited to mere occupation of what he has taken into his actual possession, but they extend to all the property and rights of the conquered state, including even debts as well as personal and real property.

Tested by these considerations, it must be assumed for the further purposes of this investigation that the title acquired by the plaintiff claimants from the United States was a valid title, and if so, then it is clear that the court below had no jurisdiction of the cause of action alleged in the information, as the plaintiffs, if disturbed in their possession of the premises, had a plain, adequate, and complete remedy at law. Discussion of that rule of decision at this time, however, is unnecessary, as the whole subject was considered by this court in a recent case, to which reference is made as one entirely applicable in principle to the case before the court

Numerous exceptions were taken by the plaintiffs to the rulings of the court in admitting and rejecting evidence, several of which it is obvious were erroneous, but in the view taken of the case it is not necessary to re-examine any such questions, as the court is of the opinion that the court below had no jurisdiction to render any decree in the case upon the merits of the controversy.

Usually where a court has no jurisdiction of a case, the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has given judgment or decree for the plaintiff or improperly decreed affirmative relief to a claimant. In such a case the judgment or decree in the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy.

DECREE IN ALL THINGS REVERSED for the want of jurisdiction in the court below, and the cause remanded with directions to dismiss the case, including the original and amended informations, and the claims of all the claimants.


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


text:
Walker v. Henshaw

ERROR to the Supreme Court of Kansas; the case being thus:

Walker and others brought an action under the civil code of Kansas to try title to and get possession of a section of land in Douglas County, Kansas, being 'parcel of the lands ceded to the United States by the Shawnee tribe of Indians, by treaty ratified November 2d, 1854, and lying between the Missouri State line and a line parallel thereto and west of the same thirty miles distant.'

The condition of these lands, as gathered from the provisions of certain Indian treaties and the laws of Congress, was as follows:By articles of convention, made between William Clark, Superintendent of Indian Affairs, and the Shawnees, of November 7th, 1825, in exchange for their lands near Cape Girardeau, on the Mississippi, held under the authority of the Spanish government, the Shawnees had the right to select 1,600,000 acres of land (a tract equal to fifty miles square) on the Kansas River, to be 'laid off either south or north of that river, and west of the boundary of Missouri.'

By act of Congress of May 28th, 1830, the President was authorized to make and exchange, and—

§ 3. 'To assure the tribe or nation. . . that the United States will forever secure and guarantee to them, their heirs or successors, the country so exchanged with them,' and

§ 6. 'To cause such tribe or nation to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatsoever.'

By articles of agreement and convention of August 8th, 1831, the United States agreed to grant, by patent in fee simple, 100,000 acres of land, to be located under direction of the President, within the limits of the fifty miles square reserve, provided for by the said treaty of 1825, and to guarantee that said lands

'Shall never be within the bounds of any State or Territory,. . . and cause said tribe to be protected. . . against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever.'

[This fifty miles square reserve was located so as to include the lands in question.]

These arrangements and this treaty, the reader will observe, were with the Shawnee Indians; and thus things with that tribe and the United States remained A.D. 1842.

On the 17th of March in the year just named, a treaty was concluded between the Wyandot Indians and the United States. The 14th article of it was thus: 'The United States agree to grant, by patent in fee simple, to each of the following named persons [Irwin Long among others] and their heirs, all of whom are Wyandottes, one section of land,. . . out of any lands west of the Mississippi [afterwards changed by amendment to Missouri] River, set apart for Indian use, not already claimed or occupied by any person or tribe. The lands hereby granted to be selected by the ''grantees,. . . but never to be conveyed'' by them, or their heirs, without the permission of the President of the United States.'

We now come back to the Shawnees.

The 1,600,000 acres of land granted to them by the treaty of 1825, subject to the provisions of the treaty of August 8th, 1831, including the lands in question, remained the property of the Shawnees until November 2d, 1854. A new treaty was then ratified between them and the United States, by which the Shawnees ceded to the United States this 1,600,000 acres, and the United States ceded back to the Shawnees 200,000 thereof, 'to be selected between the Missouri State line and a line parallel thereto, and west of the same thirty miles distant,' including the lands in question.

Out of these 200,000 acres, east of the thirty mile line, were to be carved certain head rights, and set off certain tracts to be occupied by Shawnees in common and for the protection of certain absentees; the residue was to be

'Set apart in one body of land, in compact form, under the direction of the President of the United States, and all such Shawnees as return to and unite with the tribe within FIVE years from the proclamation of this treaty shall be entitled to the same quantity of land' as their brethren, &c.,. . . . 'and whatever portion of said surplus remains unassigned, after the expiration of said five years, shall be sold as hereinafter provided,' &c., the selections to conform to the legal subdivisions of the survey provided for in article 5.

The fifth article also

'No white person or citizen shall be permitted to make locations or settlements within the thirty mile limits until after all of the lands shall have been surveyed, and the Shawnees shall have made their selections and locations, and the President shall have set apart the surplus.'

On the 22d of July, 1854, Congress passed an act extending the pre-emption laws over 'all the lands to which the Indian title has been, or shall be, extinguished' within the Territories of Nebraska and Kansas.

We now pass back again to the Wyandottes, with whom the treaty had been made October 5th, 1842.

By a new treaty, now made March 1st, 1855, it was thus provided in a tenth article:

'That each of the individuals to whom reservations were granted by the fourteenth article of the treaty of March 17th, 1842, or their heirs or legal representatives, shall be permitted to select and locate said reservations on any government lands west of the States of Missouri and Iowa, subject to pre-emption and settlement, said reservations to be patented by the United States in the name of the reservees as soon as practicable after the selections are made; and the reservees, their heirs or proper representatives, shall have the unrestricted right to sell and convey the same whenever they may think proper.'

The lands in question were first opened for settlement, pre-emption, and sale on the 9th of July, 1858.

So far as to treaties and the date of opening of these lands to pre-emption, & c. Now as to the facts of this particular case.

The plaintiffs claimed under Irwin Long, the Wyandotte Indian mentioned in the treaty of 1842, who held a patent from the United States. In support of this title it appeared that on the 8th of May, 1857, one Stover, a white man, as agent for Long, filed in the office of the Surveyor-General of Kansas and Nebraska a written notice that as such agent of Long he had on that day selected and located a reserve of land to which Long was entitled, in pursuance of the two treaties made by the United States with the Wyandottes on the 5th of October, 1842, and the 1st of March, 1855. On this proceeding a patent-this being the patent under which the plaintiffs claimed purporting to convey the lands in pursuance of the said treaties, was issued and duly delivered.

The defendants claimed title by virtue of a pre-emption settlement of the 28th of July, 1858. In support of this title it appeared that in February, 1857, one Whaley, being personally qualified, entered upon and made settlement in person, and commenced to improve with intent to pre-empt and purchase the land; that after making such settlement, and within thirty days thereafter, he went to the proper local land office, with intent to file notice of his said settlement and intention to pre-empt, and offered to make such filing; but that the register of the land office refused to allow such filing, on the ground that the said land was not pre-emptable; that in April of the same year he went to the same office and made the same offer, which was refused by the register on the same grounds; that on the 30th day of July, 1858, he duly filed in the office of the register of the said land office a notice of his settlement on said land, and of his intention to pre-empt the same, dating the time of his settlement July 28th, 1858; that on the 5th day of May 1859 he purchased the said land, and paid for the same, and took the usual certificate of such purchase and payment; that on the 10th day of August, 1860, the said pre-emption and purchase was approved by the Commissioner of the General Land Office of the United States, and the register of the local land office was duly notified, by letter of said commissioner, of such approval.

That afterward the said Whaley applied to the register of said local land office, at his office, for a patent from the United States to him for said land, and was informed by said register that said patent had been sent from Washington to said office, and afterwards recalled.

As already said, the land in question was first opened for settlement, pre-emption, and sale, on the 9th of July, 1858.

The suit being referred to a referee to try the action, he found as matter of law that up to the 9th of July, 1858, when, as just mentioned, the lands were first opened for settlement, pre-emption, and sale, and indeed up to May 5th, 1859, when Whaley made his payment and purchase, neither plaintiffs nor defendants had acquired any title; but that by the purchase and payment then made, an equitable title was vested in Whaley.

He accordingly found that the defendants were entitled to judgment, and found further that the plaintiffs should convey the title to the defendants, &c.

This decision was declared to be right by the Supreme Court of the State, and the case was now brought here for review.

Messrs. W. T. Otto and J. P. Usher, for the plaintiffs in error; Messrs. Thacher and Banks, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Walker v. Henshaw


text: Talk:Walker v. Henshaw

title: Talk:Walker v. Henshaw


text:
Walker v. Henshaw/Opinion of the Court

If the land in controversy was subject to the location of the Wyandotte float before it was proclaimed open to pre-emption and settlement, the title of the plaintiffs cannot be divested by any supposed equity growing out of the pre-emption of the defendants. If, on the contrary, neither the plaintiffs' grantor nor the defendants could take any steps towards acquiring title to the land until the 9th day of July, 1858, when it was first opened to pre-emption settlement, the defendants having since that date complied with all the requirements of the pre-emption law, and obtained the usual certificates of purchase, and the grantor of the plaintiffs having taken no action on the subject after the 8th day of May, 1857, are equitably entitled to the land, and the legal title enures to their benefit.

Whether the one or the other of these categories be true, depends on the construction to be given several Indian treaties, which we will proceed to notice.

By the fourteenth article of the treaty with the Wyandotte nation of Indians, ratified on the 5th day of October, 1842, the United States agreed to grant to each of several named persons (among the number Irwin Long), Wyandottes by blood or adoption, a section of land out of any lands west of the Missouri River, set apart for Indian use, not already claimed or occupied by any person or tribe. The privilege of selecting the lands was conceded to the grantees, but the power of alienation was denied them, except with the permission of the President.

Another treaty was made with this same tribe of Indians on the first day of March, 1855, which conferred on the reservees, under the treaty of 1842, the right to select and locate their lands on any government lands west of the States of Missouri and Iowa, subject to pre-emption and settlement, and the restriction upon alienation imposed in the first treaty was withdrawn, except as to certain incompetent persons. The reserve of Long, through whom the plaintiffs claim title, was located upon the land in dispute, in May, 1857, and the question is, was the location authorized by either of these treaties? It is contended that the lands were not, at the time of the attempted location, subject to be taken under the Long float, because they were then claimed or occupied by the Shawnee Indians, and this presents the ost important subject of inquiry.

It had been, for a long time prior to the Wyandotte treaty of 1842, the well-defined policy of Congress to remove the Indians from organized States, and in execution of this policy, territory supposed at the time to be too remote for white settlement, was set apart exclusively for the use of Indian tribes. It was this policy that dictated the removal of the Shawnees from Missouri and Ohio, in 1825 and 1831, to a tract of country in Kansas of large area, ceded to them by the United States, and embracing the lands in controversy. They held this large tract of land under the protection of treaties and acts of Congress, from 1825 to 1854, when the rapid decrease in their numbers, and the encroachments of the white population, induced the government to conclude another treaty with them, essentially lessening their territorial limits. During this time they were, by express stipulation, assured of protection, not only against interruption or disturbance from any other tribe of Indians, but from everybody else. In recognition of this guarantee, the reservees, under the Wyandotte treaty of 1842, although in pursuance of the policy of the government, confined in their selections to lands west of the Missouri River set apart for Indian use, could not appropriate the lands already claimed or occupied by any person or tribe.

It is apparent, therefore, that Long had no right to locate his float on the land in dispute, from 1842 to 1854, because during all this time it was claimed or occupied by the Shawnees. Did the treaty of 1854 with them so alter the condition of things as to render valid the location of this float in 1857? By this treaty the Shawnee nation ceded to the United States all the large domain granted to them by the treaty of 1825, with the exception of two hundred thousand acres reserved as homes for the Shawnee people, to be selected within certain defined limits, which included the lands in dispute. It was contemplated that even this reservation might be more than the wants of this people required, on account of the paucity of their numbers and the limited quantity of land assigned to each individual member of the tribe. Accordingly, provision was made that the surplus which remained unassigned after the expiration of five years, unless sooner ascertained, should be sold by the government and the proceeds appropriated to the use of the Indians. During this time the privilege was conceded to the Shawnees of selecting their lands wherever they chose, within the limits of the reservation. Indeed, until this privilege was exhausted, the land, in any proper sense, belonged to them.

In surrendering the larger part of their immense possessions to relieve the government from the predicament in which it was placed by the advancing tide of white population, they did not part with any right in the lesser part reserved by them as long as the claim of any single member of the tribe, according to the terms of the treaty, was unsatisfied. If one person could acquire a right to any portion of the lands thus reserved so could another, and in this way the privilege of free and unrestricted selection would be frittered away. It needed no special provision to secure this freedom of choice, for without it the treaty could not be executed. By virtue of the treaty itself these lands were appropriated to a specific purpose, and whatever interfered with the accomplishment of this purpose was necessarily forbidden.

It is easy to see that the purpose for which the Shawnees retained in their own hands the entire reservation could not be effected, if an entry for location and settlement by any one else were permitted, for the part thus taken was subject at any moment of time to be chosen for the use and occupation of the Shawnees. In effect the retrocession by these Indians of the lands granted to them in 1825 was on the condition that they should be allowed to select, within a limited time, out of two hundred thousand acres set apart for his purpose, a quantity of land equal to two hundred acres for each individual member of the tribe. The performance of this condition required, until this time expired, absolute non-interference by any outside party. On any other theory of interpretation these Indians, on account of their helpless state, could not have obtained the lands they desired. If these views be correct the exclusion, in section five, of white persons and citizens from making locations or settlements was not required by the necessities of the case. They were excluded without it. The clause was doubtless inserted out of superabundant caution and to satisfy the misgivings of the Indians, who, from experience, had good reason to dread the encroachments of this class of people, notwithstanding treaty stipulations. This experience had given them no ground to apprehend interference from the Indians on account of the direct control exercised by the government over the affairs of all the Indian tribes.

If, however, the government had been able, without difficulty, to protect them against their own race, it had not, with every effort, been always able to hold in restraint the ceaseless activity of the white race. It was therefore natural that on this occasion the Shawnees should want, although wholly unnecessary, a positive stipulation against the unlawful intrusion upon their rights by our own citizens. Indeed, this very case affords an illustration of the quarter from which trouble has always arisen, for Stover, a white man located the reserve, and it is a reasonable presumption, in the absence of any proof on the subject, that he was interested in the location. It is enough to say, without pursuing this branch of the case further, that we agree with the learned Supreme Court of Kansas, that the latter clause of the fifth article of the treaty 'conferred no right or made no prohibition which the law would not raise on the treaty' without it.

If so, the location of Long's float, under the treaty of 1842, was an illegal act, because inconsistent with the existing rights of the Shawnees. These rights were in full force at the time of the attempted location, and remained in this condition until the proclamation of the President of the 9th of July, 1858, setting apart the surplus of lands which remained after the Shawnees had obtained their full complement and opening the lands thus segregated for pre-emption and settlement.

In no respect has the United States failed to discharge the obligation incurred by the treaty of 1842 with the Wyandotte reservees. The Indian country to which they were invited to go had been defined by Congress, and they were told to locate their reserves anywhere within it, provided they did not encroach on the rights of others. This limitation was not only reasonable in itself, but essential to preserve the faith of the government in its several treaties with the different Indian tribes. Why thirteen years were suffered to pass without these reserves being located does not appear, but it is obvious in 1855 they had materially lessened in value, as before that time the limits of the Indian country, by legislation and treaty, had been very much restricted. This restriction imposed on the government the duty of making other provisions for these floating grants, and this duty was performed by the Wyandotte treaty of 1855. This treaty, among other things, allowed the reservees to locate their floats on any government lands west of Missouri and Iowa subject to pre-emption and settlement, and removed the restraint upon the power of alienation, imposed in the former treaty. This action of the government placed Long and the defendants, as to the lands in question, on precisely the same grounds. Neither party could acquire any right to them until they were thrown open to pre-emption and settlement, and both, as soon as this was done, were at liberty to take them up; Long, by means of his float, the defendants by reason of their qualifications as pre-emptors; and whoever moved in the matter first would have the better right. It required, however, positive affirmative action after the lands were declared to be public lands before any title to them, legal or equitable, could be obtained, and all proceedings attempting to forestall the proclamation of the President were null and void, because in contravention of the treaty with the Shawnees. The defendants, not relying on their prior settlement in February, 1857, to protect them, took the proper steps after this proclamation to perfect their pre-emption, and have performed all the conditions to which they were subject by the law. They have therefore a complete equitable title to the land, and as the patent issued to Long was based on an unlawful entry it ought to be transferred to the defendants.

There is, in our opinion, no error in the judgment of the Supreme Court of Kansas, and it is accordingly

AFFIRMED.

title: Walker v. Henshaw/Opinion of the Court


text: Talk:Walker v. Henshaw/Opinion of the Court


text:
Ribon v. Railroad Companies

APPEAL from the Circuit Court for the District of Iowa.

Ribon and several others, bondholders and stockholders in the Mississippi and Missouri Railroad Company, filed a bill against the Chicago, Rock Island, and Pacific Railroad Company, to set aside as collusive and fraudulent a sale which had been made of the road of the former company (one which had numerous stockholders, and also numerous bond creditors, secured by five different mortgages) to the latter company, through means of an amicable foreclosure and decree, in which certain persons, trustees in one mortgage given by the latter company, were complainants, and certain other persons, trustees in four other mortgages given by the same company, along with the company itself, were defendants.

The bill alleged an agreement between a company called the Chicago and Rock Island Railroad Company, and a majority of the bondholders and stockholders of the Mississippi and Missouri road, by which this latter road should be sold to the former company, and the proceeds divided among the bondholders and stockholders of the latter, in a way fixed upon; that there being several stockholders and bondholders in the latter company who dissented from this arrangement, a scheme was devised by the majority of the stockholders, to which the different trustees under the different mortgages were parties, to carry the thing out in the way above named, and so cut off those who dissented; and the execution of the scheme through a sale of the Mississippi and Missouri Railroad to the old Chicago and Rock Island Company, with a somewhat different organization, and a name so far changed as to have the addition of 'Pacific.'

The bill was filed by the complainants for themselves and such other dissenting bondholders and stockholders as should choose to become parties and contribute; and it prayed, as already stated, that the sale might be set aside; praying further that the property might be resold under the decree; that the money arising from the sale be applied, first, to the payment of the bonds of the complainants and of any dissenters who might come in, and be afterwards applied upon the stock of the complainants and of any dissenters who might come in; and praying for other and further relief.

It made both the Chicago, Rock Island, and Pacific company (the company purchasing), and the Mississippi and Missouri company (the company whose road had been sold), defendants; but it did not make any of the stockholders through whose assent the trustees had acted, nor the trustees through whose act the scheme was charged to have been actually consummated, parties.

For these omissions, as of indispensable parties, the defendants demurred; and the court below sustained the demurrer and dismissed the bill. Ribon and his co-complainants appealed.

Mr. J. Grant, for the appellants, cited Dodge v. Woolsey; Mr. T. F. Witherow, contra.

Mr. Justice SWAY E stated particulars of the case, and delivered the opinion of the court.

title: Ribon v. Railroad Companies


text: Talk:Ribon v. Railroad Companies

title: Talk:Ribon v. Railroad Companies


text:
Ribon v. Railroad Companies/Opinion of the Court

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Iowa. The appellants are the complainants. A brief statement of the case as presented in the record will be sufficient for the purposes of this opinion.

The Mississippi and Missouri Railroad Company was incorporated to construct a railroad from Davenport, on the Mississippi River, to a point at or near Council Bluffs, on the Missouri River. It executed five mortgages to secure different sets of bonds, and issued stock in shares of $100 each, to the amount of $3,500,000. The company built a part of its roadway, and became greatly embarrassed. A large majority in interest of the bondholders and stockholders decided to sell all the property of the company to the Chicago and Rock Island Railroad Company, or to such other corporation as that company might designate to receive the transfer; and in order to pass the title it was determined to have the mortgages foreclosed and a sale made under the decree. The Rock Island company entered into the arrangement, and agreed to pay $5,500,000 as the consideration of the sale. Payment was to be made in bonds as specified in the contract. The majority in interest of the bond and stockholders of the Mississippi company agreed among themselves as to the distribution of the fund. Such proceedings were subsequently had that under a decree in a suit in equity, wherein the trustees in one of the five mortgages were complainants, and the trustees of the other four and the Mississippi company were defendants, a sale was made to the Chicago, Rock Island, and Pacific Railroad Company for the sum of $2,100,000. Five and a half millions of the bonds of the purchasing company were nevertheless paid over according to the prior contract, and have been distributed according to the agreement among themselves, of the majority in interest of the stockholders and bondholders of the Mississippi company. The Chicago, Rock Island, and Pacific company is in possession of the property so sold to them, and operating the finished part of the road. It is not denied that the proceedings touching the sale are upon their face regular and valid.

The holders of the bonds of the Mississippi company, to the amount of $185,000 and of six thousand shares of the stock, refused to become parties to the arrangements and proceedings of the majority in interest-never assented to the sale, and did not participate in the distribution of the proceeds.

The complainants are dissenting bond and stockholders. They filed this bill for themselves and such other dissenters as might choose to become parties and contribute to the costs of the litigation. The prayer of the bill is that the sale may be declared fraudulent and void; that the property may be resold under the decree; that the money arising from the sale be applied, first, to the payment of the bonds of the complainants and of the other dissenting bondholders who may become parties, and that the residue be applied upon the stock of the complainants and of such other dissenters as may become parties, and for other and further relief.

The appellees demurred to the bill, and assigned for cause, among others, the want of indispensable parties. The demurrer was sustained, and the complainants not electing to amend, the court dismissed the bill.

The want of parties is the only point we have found it necessary to consider.

The rule in equity as to parties defendant is that all whose interests will be affected by the decree sought to be obtained must be before the court; and if any such persons cannot be reached by process-do not voluntarily appear, or from a jurisdictional objection going to the person in the courts of the United States, cannot be made parties-the bill must be dismissed. Where a decree can be made as to those present, without affecting the rights of those who are absent, the court will proceed. But if the interests of those pres nt and of those absent are inseparable, the obstacle is insuperable. The act of Congress of 1839 and the rule of this court upon the subject give no warrant for the idea that parties whose presence was before indispensable could thereafter be dispensed with. The subject was fully considered in Shields v. Barrow. What is there said need not be repeated.

The rule that all to be affected by the result must be before the court is subject to certain exceptions. But they have no application to the case before us, and need not, therefore, be considered. The rule, as we have stated it, is well settled in equity jurisprudence.

In the case before us the two railroad companies were properly made defendants-the Mississippi and Missouri company because it was the mortgagor and the owner of the mortgaged premises up to the time of the sale, and because if the sale were annulled its title would be restored; the Chicago, Rock Island, and Pacific company, because it was the purchaser and is in possession of the property under a claim of title. But the Mississippi and Missouri company has nothing at stake. It is without means, present or prospective. It has been stripped of all its property and effects, and only cumbers the ground.

The trustees in the five mortgages which were foreclosed should have been made parties. Their presence as such was indispensable. If the sale should be annulled they might be in the situation of the plaintiff who collects a judgment which is afterwards reversed. He may be called upon to refund and compelled to do so. A question would also arise whether the consideration of the agreement under which the five and a half millions of bonds were paid had not failed, and whether all the bondholders and stockholders who participated in the distribution of the proceeds of the sale should not be required to refund. If either or both were too numerous for all to be brought before the court, some might have been made parties in their own behalf and as the representatives of the others.

Dodge v. Woolsey et al., to which our attention was called by the learned counsel for the appellants, presents no material points of analogy to the case before us, and affords no support to this bill in the particular under consideration. The bill in this respect is fatally defective. We do not deem it necessary to pursue the subject further. The demurrer was properly sustained and the bill properly dismissed.

DECREE AFFIRMED.


text: Talk:Ribon v. Railroad Companies/Opinion of the Court


text: Kenicott v. The Supervisors

title: Kenicott v. The Supervisors


text: Talk:Kenicott v. The Supervisors

title: Talk:Kenicott v. The Supervisors