text:
Beaver v. Taylor (68 U.S. 637)/Opinion of the Court

Under the first section of the Statute of Limitations of the State of Illinois, of the 2d of March, 1839, it was necessary for the defendants to show actual possession of the premises for seven successive years; the payment of all taxes for seven successive years; and that the possession was under 'claim and color of title made in good faith.' Under this section, the period of limitation begins with the possession.

A void deed taken in good faith is a sufficient color of title. It is not necessary that each year's taxes should have been paid within the year. The taxes 'for one year may be paid in another of the seven years.'

Under the second section, the defendant must show the payment of the taxes for seven successive years; that the land was 'vacant and unoccupied' during that time, and that he had, during the sam time, 'color of title made in good faith.' Under this section the bar begins with the first payment of taxes after the party has acquired color of title. Payment of taxes without color of title is unavailing.

2. As respects the evidence admitted and excepted to.

In connection with the proof of Gilbert's agency in paying the taxes, it was clearly proper to allow the receipts to go in evidence to the jury. His agency could be proved by evidence aliunde. Such testimony was admissible upon the plainest principles of the law of evidence. The jury were the judges of its weight.

The letters and account stand upon a different footing, and their competency is not so free from doubt; but after the fullest consideration, we are all of opinion that there was no error in admitting them. It was proper for the agent to transmit the receipts to his principals. What was said and done in that connection was a part of the res gestae. The contents of the accompanying letters relative to the receipts are within the rule upon that subject. The entries in the books of Taylor & Davis, after the receipts came to hand showing their action, were admissible for the same reasons. Both the letters and entries belong to the same category with what are called 'verbal facts,' and neither fall within the rule which excludes 'res inter alios acta,'-hearsay and declarations made by the party offering them in evidence. The principal fact was the transmission of the receipts. The other facts so illustrate and characterize it, as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its true light and give it its proper effect.

It is, perhaps, not possible to lay down any general rule as to what is a part of the res gestae which will be decisive of the question in every case in which it may be presented by the ever-varying phases of human affairs. The judicial mind will always be compelled frequently to apply the general principle and deduce the proper conclusion. The circumstances to which we have just adverted furnish the tests by the light of which the question, whenever it arises, must receive its solution.

3. After the evidence was closed, the plaintiff's counsel submitted numerous prayers for instructions to the jury. The learned judge refused to give them, but submitted the facts with instructions according to his own views. This was proper, provided the instructions given were correct. We find nothing in these instructions which calls for remark, except what related to the second section of the statute. [His honor here repeated this portion of the instructions, as already given.] In regard to these there is a material difference between the instructions refused and those given. The former directed the attention of the jury particularly to the proposition, that, as regards this section, the statute did not begin to run until the first payment of taxes was made, and that seven years must have elapsed after that time to render the bar complete; while the latter overlooked this point, and made no distinction between the payment of taxes under this section and the preceding one. The language, he 'must pay all taxes levied on the land for seven successive years,' is substantially the same with that used by the learned judge in regard to the first section. Under the section, as we have shown, the bar begins with the time of the possession, and the taxes for the seven years 'may be paid in one year for another.' This was an error.

But it is said that the bar was complete under the first section, and that what was said as to the second section was needless, and in the nature of an abstract proposition. We cannot so regard it. The bill of exceptions purports to contain all the evidence. The action was commenced on the 17th of July, 1854. To raise a bar under the second section, the first payment of taxes must have been made as early as the 17th July, 1847. There is no proof of any payment earlier than that referred to in the first letter of Gilbert. That letter bears date on the 10th of March, 1848, and shows the payment to have been made prior to that time. How much earlier it was made does not appear. It is clear that so far as this section is concerned the plaintiff was entitled to recover, and the court should have so instructed the jury. The defence rested wholly upon the first section.

Under that section, as before remarked, there must be possession for seven years prior to the commencement of the suit. The first payment of taxes may be later than the beginning of that period. As the jury were instructed, they may not have been satisfied as to the requisite possession under the first section, and have found for the defendants under the second section, upon the ground that the taxes had been paid for seven successive years, although the first payment was made later than seven years before the action was commenced.

The law, as to instructions outside of the facts of the case, or involving abstract propositions, is well settled. If they may have misled the jury to the injury of the party against whom their verdict is given, the error is fatal.

VENIRE DE NOVO AWARDED.


text: Talk:Beaver v. Taylor (68 U.S. 637)/Opinion of the Court

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


text:
Rogers v. Marshal

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

Rogers had issued a writ of replevin in the District Court for the district above named, against a certain Remington and one Martin to replevy a quantity of lumber. By the code of Wisconsin, which was adopted in the District Court as its rule of proceeding, it was provided that on 'a written undertaking executed by one or more sufficient sureties,' approved, &c., for the prosecution of the action for the return of the property to the defendant, the marshal should take the same, and deliver it to the plaintiff, unless, &c. In the replevin suit just mentioned, the deputy marshal, one Fuller, took a bond, and delivered the property; but the bond taken by him, on suit brought upon it, was decided to be void, and was now confessedly so. A suit-the present action, to wit, in the court below-was now brought against the marshal and his sureties, on his official bond; the ground of the suit being the mistake of the deputy marshal, Fuller, in taking a bond that was void instead of taking one that was valid. The defence set up was that the deputy, Fuller, acted in the matter under instructions from one Hopkins, the attorney of the plaintiff in the replevin suit. And one point involved in the suit accordingly was, whether Fuller, the deputy, had so acted.

That point rested on the testimony of the attorney, Hopkins, and the deputy, Fuller, both of whom were witnesses in the suit.

Fuller, the deputy, swore as follows:

'After I took the lumber, Remington came to me, and inquired the form of a bond. I gave him a form, and the next day he brought a bond signed by himself and Martin. I took the bond to Mr. Hopkins, who was attorney for the plaintiff in the replevin. He said he would not have Remington on the bond at all. I took the bond back to Remington, and told him what Hopkins said. Remington took the bond, and the next day he returned it with the name of John Keefe on it. I took the bond to Hopkins who said he did not know anything about Keefe, but that if I could get Andrew Proudfit's name on the bond to take it. I told this to Remington, who took the bond again, and brought it to me with Proudfit's name on it. I said to Remington, 'I cannot receive the bond, your name is on it.' He said he would take his name off, and I said that would be in accordance with my instructions by Hopkins. I handed the bond back to Remington. He went to the desk, erased his name in my presence, in all the places where it now appears erased, and brought it back to me in its present shape. No one was present when the erasure was made but myself, my clerk, and Remington.'

The testimony of Mr. Hopkins was to the same general effect; he stating that when the bond was brought to him, in the first instance, he told Fuller 'the statute requires the bond to be signed by sureties: and I do not want Remington's name of it.' Hopkins had never seen the bond after Fuller took it away; nor heard of the erasure until he heard of it casually, and long after it was made.

In the course of the examination of the deputy marshal, the defendant's counsel asked him (under objection, overruled, to the question), what Mr. Hopkins said afterwards about the bond. The witness answered,

'Mr. Hopkins told me a month afterwards, that it was necessary to have Remington's name on it; that he was then mistaken in the code; he thought it was the same as the New York code. He said the New York code did not require the defendant's name to be on the bond, and the code of this State did. He gave that as a reason why he would not have Remington's name on the bond. The marshal knew nothing about the transaction. He was away from town at the time. I was acting under the direction of Mr. Hopkins, the attorney of the plaintiff, who had charge of the whole thing.'

The evidence being closed, and it having been made to appear that Mr. Hopkins was not only attorney of the plaintiff in the replevin suit, but was also attorney for the plaintiff in the suit brought on the replevin bond, the court charged as follows:

'If the deputy marshal in the execution of the writ of replevin was in the due service of the writ in taking the bond on the part of the defendants to retain the property, and the altered bond was accepted by the deputy marshal in pursuance of instructions or the interference of the attorney for the plaintiff, then these defendants are not to be held liable.

'The bond given to the deputy in the first instance, with the name of Remington on it as principal, was valid so far as it related to his being a party or obligor on said bond. It is for the jury to determine whether the erasure was made in consequence of the interference of Mr. Hopkins, the attorney.

'The interference or consent of the plaintiff's counsel may be inferred in part from the fact of his afterwards acting on the bond as valid, and bringing suit thereon.'

The bill of exceptions, after reciting this charge, as above given, proceeded in these words:

'To which said instructions and charge to the jury the plaintiffs by their counsel then and there, in open court, did except, according to the course of practice of this court.'

In regard to the form of the exceptions it is necessary here to say, that a rule of the Supreme Court directs that 'judges of the Circuit and District Courts do not allow any bill of exceptions which shall contain the charge of the court at large to the jury, in trials at common law, upon any general exception to the whole of such charge, but that the party excepting be required to state distinctly the several matters in law in such charge, to which he excepts, and that such matters of law and those only, be inserted in the bill of exceptions, and allowed by the court.'

The questions now before this court were:

1. Did the court err in any of its instructions?

2. If So, can the plaintiff in error, in the face of the rule of court already mentioned and the practice of the court, profit of the error on a bill so general as the one here?

3. Was the objection to the question asked of the deputy marshal as to what Mr. Hopkins said after the bond was taken, and the lumber given up, rightly overruled?

Mr. Carpenter, for the plaintiff in error:

1. There is no more pretence for saying that Hopkins directed or consented to the erasure, than there is for saying that he directed the marshal to forge the name of Proudfit to the bond. He objected to the bond because Remington's name was on it, and because Proudfit's was not; but it was the duty of the marshal, even under these instructions, if they were instructions, to get the name of Proudfit legally upon the bond, and the name of Remington legally off from it, in other words to draw a new bond and to have Proudfit sign that. It would have been correct to charge the jury that if the plaintiff or his attorney directed the erasure to be made in the absence of the other signers, and the marshal erased it, acting under such instructions, the plaintiff could not recover. But the charge in substance was, that if the marshal made the erasure in consequence of the interference of Hopkins-that is, because Hopkins interfered-the plaintiff could not recover. Now it is true that in a popular sense, and as it would be understood by a jury, the erasure was made in consequence of what Hopkins said: that is, if Hopkins had said nothing, the marshal would not have erased the name. So, if the marshal, after the first interview with Hopkins, had forged Proudfit's name to the bond, it might be said that he had done so, in consequence of Hopkins desiring his name on the bond. It was in the sense we have indicated that the jury understood the charge. It must have been so intended by the judge; for there was no testimony tending to prove that Hopkins directed the erasure; on the contrary the marshal rather testified that the last instructions of Hopkins were to take the bond, if Proudfit's name was obtained upon it, waiving the objection that it was signed by Remington.

Again, the judge charged the jury that the interference or consent of the plaintiff's counsel (to the erasure) may be inferred in part from the fact of his afterwards 'acting on the bond as valid, and bringing suit thereon.' This was clearly erroneous; the testimony proved that Hopkins did not consent to the erasure at all, or even know of it till long afterwards. The erasure was a fact; the legal consequence of that fact upon the validity of the bond was matter of opinion. Conceding that when months afterwards Hopkins discovered that the erasure had been made, he thought as matter of law that the bond could be recovered upon, how does that opinion even tend to show that he consented to the erasure? This is the first time that a lawyer's erroneous opinion as to the legal consequences of an act has been held competent evidence tending to prove that he consented to the commission of the act itself.

2. As to the form of the exceptions. The rule of this court was sufficiently observed by the judge in allowing the exceptions here. The bill does not set out the whole charge, but only 'the several matters in law in such charge to which' we excepted; and the bill of exception then says: 'To which said instructions,' &c., 'the plaintiffs, by their counsel then and there in open court, did except, according to the course of practice of' the District Court: that is, according to the practice prescribed by the rule; or, in other words, did except to each of the several matters in law in said charge, which are inserted in this bill of exceptions. The principle of this rule is, that the party excepting should call the attention of the court specifically to the matters objected to, so as to give the court below an opportunity to correct any mistake in the charge. And the party will not be permitted to except generally to the charge, and afterwards mak up his mind which particular propositions are erroneous. Now here the three matters which we excepted to are stated in the bill of exceptions, and it appears that to those we excepted according to the practice of the court; that is, severally to each.

3. The question, 'what did Mr. Hopkins afterwards say about the bond?' meant 'what did he say about it, after you had received it and redelivered the property?' and it invited the witness to testify to what was said a month after such redelivery. This question was objectionable:

1. Because the marshal could not have been induced to take the bond by anything that was said after he had taken it; and

2. Because, admitting that what Hopkins said at the time he objected to the bond, was binding upon Rogers, whom he was then representing in that behalf; yet, what he afterwards declared or admitted about it, could not bind Rogers. While no doubt the rule is that where the acts of the agent will bind the principal, there his representations, declarations and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting part of the res gestae; it is equally the rule that this is so, only when such representations, &c., are made at such same time.

Mr. Lynde, contra.

Mr. Justice DAVIS delivered the opinion of the court as follows:

title: Rogers v. Marshal


text: Talk:Rogers v. Marshal

title: Talk:Rogers v. Marshal


text:
Rogers v. Marshal/Opinion of the Court

1. It is unquestionably true that a marshal is answerable for the misconduct of his deputy. If Fuller, the deputy, who served the writ of replevin in the case of Rogers v. Remington & Martin, and took the statutory bond, erased the name of the principal, without the direction of some one having authority, he violated a plain duty, and his principal can justly be held liable. The officers of the law, in the execution of process, are obliged to know the requirements of the law, and if they mistake them, whether through ignorance or design, and any one is harmed by their error, they must respond in damages. But this case involves the extent of the power of an attorney to control and direct the execution of process, and the liability of the marshal where the default of his deputy has been induced by the conduct of the attorney.

The attorney is the agent of his client to conduct his suit to judgment, and to superintend the execution of final process. It is true that he cannot discharge the defendant from execution without the money is paid to him; but his authority is complete to control the remedy which the law gives him to secure or collect the debt of his client. And if the client suffers by the ignorance or indiscretion of the attorney, the officer shall not be prejudiced, for the attorney may give such directions to the officer as will excuse him from his general duty. The attorney can give such general instructions to the officer as he may deem best calculated to advance the interests of his client, and if followed (erroneous though they be) they will bind his client and exonerate the officer.

But it is said that Hopkins, the attorney, never instructed Fuller to erase Remington's name after the execution of the bond; which, being done without the knowledge and consent of the sureties, discharged them.

It is clear that no direct and positive instructions were given; for if there had been, in view of the power of the attorney to make the officer his agent, no controversy could have arisen. But the true question is this: Did Hopkins give such directions to Fuller as were calculated to mislead him, and must have induced the taking of the defective bonds? If he did, the marshal is not chargeable. After Fuller had taken the property in the replevin case he went to Hopkins with a bond signed by Remington, the principal, and Martin or Keefe as sureties. Fuller swears that Hopkins said 'he would not have Remington on the bond at all;' while the testimony of Hopkins is, that he 'did not want' Remington's name on the bond. The two statements are not essentially different. Each would clearly enough convey the idea that Remington's name must not be on the bond. Hopkins excepted to the sufficiency of the surety, and told Fuller, that if he would procure Proudfit's name in addition to the name already on it, he would be satisfied. Remington was present at the interview, and took the bond away, and the following morning brought it to Fuller with Proudfit's name. Fuller told Remington that he could not receive the bond, because his name was on it. Remington said that he would take his name off, and Fuller replied that if he did so, it would be in accordance with the instructions received from Hopkins. Remington's name was then erased.

Now it is true that Hopkins did not direct Fuller to erase Remington's name from the bond, after it was executed, without the knowledge and consent of the sureties. But it should be remembered that Fuller was a ministerial officer and unacquainted with the rules which discharged sureties from their obligations, while Hopkins was supposed to be familiar with them. Fuller knew that Hopkins objected to the retention of Remington's name, while he was satisfied with Proudfit's in addition to that of Keefe, and, as the bond complied with the wishes of Hopkins, he had a reasonable right to infer that it was satisfactory. That Fuller acted under this belief is evident from the fact that he did not, until some length of time, say anything further to Hopkins; and there is nothing in the record to question the bon a fides of either Fuller or Remington.

Hopkins had the right to refuse to direct Fuller at all in relation to the manner in which the bond should be executed, but he had no right to say anything which would necessarily tend to mislead him. If he had told Fuller, I will give you no instructions or advice; you are the officer, and must determine for yourself all questions that arise in the performance of your duty, then Fuller, having been properly cautioned, could have no right to complain. And it is fair to infer that he would at once have sought legal advice, and thereby avoided the difficulties that occurred. But Hopkins chose another course, and what he said was well calculated to mislead Fuller. Any officer of common mind, and unacquainted with legal proceedings, would have concluded, from the conversation, that the bond would be satisfactory, if the additional surety was obtained and Remington's name left off; and it is clear, from Fuller's testimony, that Hopkins mistook the requirements of the Wisconsin code. Hopkins thought the New York and Wisconsin codes were alike, but afterwards ascertained his error, and that he Wisconsin code required the name of the principal on the bond, while the New York code did not. This admission relieves the case of all difficulty. It explains the reason of Hopkins in refusing the bond with the name of Remington on it, and accounts for the erasure which was made under the direction of the officer. If Hopkins chose to direct at all about the manner in which the bond should be executed, it was his duty, both to his client and the officer, to have taken the entire supervision of it. Having thought proper, as an attorney, to exercise his right to direct what names should go on the bond, he cannot, nor can his client, complain that the officer, in literally fulfilling his wishes in that regard, mistook the law and destroyed the efficacy of the instrument. When Fuller produced the bond with Remington's name on it, and Hopkins told him that he must have another surety, and would not have Remington's name on the bond, why did he not also inform him that the validity of the bond required that no erasures should be made after it was signed? This principle of law he doubtless well knew, and it is reasonable to infer that Fuller was in ignorance of it. The direction which Hopkins did give, and his failure to direct further, caused the loss which followed, and his client should suffer, and not the marshal.

These views are decisive of this case. The court charged the jury that it was their province to determine whether the erasure was made 'in consequence of the interference of Hopkins, the attorney,' and the charge was right. It would have been better to have used the words 'direction' or 'instruction' instead of 'interference,' but, applying the evidence in the case, it is manifest that the jury rightfully interpreted the charge. A nice criticism of words will not be indulged when the meaning of the instruction is plain and obvious, and cannot mislead the jury.

2. But it is said that if the court was right in one proposition, it erred in submitting others to the jury.

This is true, but the plaintiffs in error cannot avail themselves of their exception, which was general and not specific. In Johnston v. Jones this court say, 'It is well settled that if a series of propositions be embodied in instructions, and the instructions are excepted to in mass, if any one of the propositions be correct, the exception must be overruled.'

3. It is urged that the court was in error in permitting the defendants to ask the witness (Fuller) what Hopkins said about the bond after Fuller had accepted it and given an order for the lumber. The exception is to the question, and not the answer. The question was pertinent and proper. If Fuller had deviated from the strict line of his duty, yet if Hopkins adopted what was done, his client cannot hold the marshal responsible. And if Hopkins, after being informed of the circumstances under which Fuller took the bond, assented to it, his client is concluded. It was surely important, then, to ascertain whether that assent was given. The answer to the question, even if improper testimony, cannot be complained of here, because no exception was taken to it in the court below. The answer, however, could not have affected the verdict, and it is not necessary to discuss its pertinency. On the whole, we find no error in the record, and are not disposed to disturb the finding of the jury.

JUDGMENT AFFIRMED WITH COSTS.

title: Rogers v. Marshal/Opinion of the Court


text: Talk:Rogers v. Marshal/Opinion of the Court


text:
Blossom v. Milwaukee Railroad Company

A DECREE foreclosing a mortgage and ordering a sale of the road had been obtained in the District Court of the United States for the District of Wisconsin, in a suit by one Bishop and others against The Milwaukee and Chicago Railroad Company; and the road being offered for sale by the marshal, under the decree, Blossom, the appellant in this case, made a bid for the property. The sale was suspended at this point, and never actually proceeded further. Blossom then went into the District Court, and by petition prayed to have the sale completed and confirmed. His application was, however, refused. From this order of refusal he took an appeal, the present suit. A motion was now made to dismiss this appeal, the grounds of the motion being these:

1. That the appellant was not a party to the suit in the District Court, and was therefore not entitled to prosecute an appeal.

2. That his right had accrued in the mere process of executing the final decree; and that, accordingly, no appeal lay.

3. That the refusal of the District Court to confirm or complete the sale was a matter within its discretion, and, therefore, not the subject of review here.

Mr. Justice MILLER delivered the opinion of the court.

title: Blossom v. Milwaukee Railroad Company


text: Talk:Blossom v. Milwaukee Railroad Company


text:
Blossom v. Milwaukee Railroad Company/Opinion of the Court

1. Is the appellant so far a party to the original suit that he can appeal?

It is certainly true that he cannot ap eal from the original decree of foreclosure, nor from any other order or decree of the court made prior to his bid. It, however, seems to be well settled, that after a decree adjudicating certain rights between the parties to a suit, other persons having no previous interest in the litigation may become connected with the case, in the course of the subsequent proceedings, in such a manner as to subject them to the jurisdiction of the court, and render them liable to its orders; and that they may in like manner acquire rights in regard to the subject-matter of the litigation, which the court is bound to protect. Sureties, signing appeal bonds, stay bonds, delivery bonds, and receipters under writs of attachment, become quasi parties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgments may be rendered on their bonds or recognizances. So in the case of a creditor's bill, or other suit, by which a fund is to be distributed to parties, some of whom are not before the court; these are at liberty to come before the master after the decree, and establish their claims to share in the distribution.

A purchaser or bidder at a master's sale in chancery subjects himself quoad hoc to the jurisdiction of the court, and can be compelled to perform his agreement specifically. It would seem that he must acquire a corresponding right to appear and claim, at the hands of the court, such relief as the rules of equity proceedings entitle him to.

In Delaplaine v. Lawrence, Chancellor Walworth says, that 'in sales made by masters under decrees and orders of this court, the purchasers who have bid off the property and paid their deposits in good faith, are considered as having inchoate rights which entitle them to a hearing upon the question whether the sales shall be set aside. And if the court errs by setting aside the sale improperly, they have the right to carry the question by appeal to a higher tribunal.'

This principle, to which we see no objection, seems to decide the point before us in regard to parties to the suit.

2. The next ground assumed is that the right of appellant having accrued in the mere process of executing the final decree of the court, no appeal lies in such case.

Although this court has frequently decided that where the act complained of was a mere ministerial duty, necessarily growing out of the decree which was being carried into effect, no appeal would lie, it has never decided that in no case arising after a decree, which is final only in the sense which would allow it to be appealed, will an appeal be allowed from an order of the court, however it might affect important interests, or decide matters not before the court when the first decree was rendered. Such a doctrine would place a very large proportion of the most important matters adjudged by courts of chancery beyond the reach of an appeal. On the contrary, this court has repeatedly considered appeals from the decrees of the Circuit Courts, upon matters arising after the case had been here, and the courts below had entered decrees in accordance with the directions of this court. At the present term, in the case of A. R. Orchard v. John Hughes, the court refused to dismiss an appeal from an order confirming a sale under a decree of foreclosure, and directed that the case should be heard, with the appeal from the principal decree in the suit which ordered the sale.

3. It is said that the act of the court, in refusing to confirm or complete the sale, was entirely within its discretion, and, therefore, cannot be reviewed here.

The case of Delaplaine v. Lawrence, just cited, seems to imply a different doctrine. However this may appear on invest gation, we think that its decision involves the merits of the case before us, and requires such an examination of the whole record as can only be made fairly on a full hearing. We are not disposed to deprive the appellant of this, by dismissing his appeal on motion.

MOTION OVERRULED.


text: Talk:Blossom v. Milwaukee Railroad Company/Opinion of the Court


text:
United States v. Vallejo (68 U.S. 658)

THIS was a question of a survey of a California Mexican grant, of two leagues in quantity, to be located within a larger outboundary, and came by appeal from the District Court for the Southern District of California. The area of the larger tract was about three leagues and a third of a league. It resembled in shape a sack or purse, and the ranch was hence called the Bolsa or Sack de San Cayetano.

The United States, appellants in the case, objected to the survey upon two principal grounds; namely, that the two leagues of claimant were taken out of the central part of the sack, leaving to the government the remnant, in two detached corners; and because the land thus left was not equal in quality to that which the claimant got.

As regarded the first point, it was true that the land surveyed for the claimant was so taken out as to leave remnants; one of about three thousand five hundred acres, the other of about two thousand. As respected the quality of the land, the surveyor testified that the portion given to the claimant was of the average quality of the whole sack; parts were better for some purposes, parts worse. It appeared, however, that the land had been located as the claimant desired; that it was of a form sufficiently compact, and that, as surveyed, it embraced two 'old adobe houses,' inhabited now and for many years by the heirs of the original grantee, the present owners of the claim.

Mr. Wills, for the United States.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Vallejo (68 U.S. 658)


text: Talk:United States v. Vallejo (68 U.S. 658)


text:
United States v. Vallejo (68 U.S. 658)/Opinion of the Court

The objection to the quality of the land does not seem to be sustained by the testimony. If there be a difference in quality between the part surveyed and the part left, it must be too slight to be the subject of consideration here.

It is certainly true that the surplus left to the United States should have been in one connected piece, if there were not sufficient reasons to justify a different course. In all these locations of a limited quantity within a larger one, many rules deserve attention. But as some of these may, and often do conflict with others, they cannot all be observed in every case.

In the present case the survey is supported:

1. By the fact that it was located as desired by the claimant.

2. That it is in a reasonably compact form.

3. That it includes two old adobe houses, inhabited now and for many years past by the heirs of the original grantee, the present owners of the claim.

Both of the first-named two considerations are prominent among the rules laid down by the Commissioner of the General Land Office for the location of this class of claims.

As respects the third, it appears that if the two leagues were taken from either end of the sack as claimed by the government, the one of these houses must be left out. They were both there when the grant was made, and are, probably, twenty years old. This raises a strong presumption that the grant was intended to cover them both.

These reasons, we think, overbalance the inconvenience of having the surplus left to the United States in two disconnected parcels; especially when one of these parcels contains as much as three thousand five hundred acres, and the other about two thousand acres.

Besides, in this class of cases, a large discretion must necessarily be left to the surveyor; and while we are not prepared to say that we will not in any case review the exercise of that discretion, we have no hesitation in saying that we do not sit here to determine whether it has been accompanied with the nicest discrimination, or the highest of wisdom.

DECREE AFFIRMED.


text: Talk:United States v. Vallejo (68 U.S. 658)/Opinion of the Court


text: White v. United States (68 U.S. 660)

title: White v. United States (68 U.S. 660)


text: Talk:White v. United States (68 U.S. 660)


text:
White v. United States (68 U.S. 660)/Opinion of the Court

APPEAL from the District Court for the Northern District of California; the following case being presented.

The appellant, White, claimed a tract, or rancho of land, known as San Antonio, under a grant alleged to have been made to one Antonio Ortega. The United States, appellees in the suit, claimed it under a grant alleged to have been made by the same authority to a certain Juan Miranda. One question, therefore, was as to the validity of the respective documentary titles thus set up. But this question was complicated by other questions: one of actual occupation, another of agency or representation, and a third of abandonment. Ortega had married the daughter of Miranda, and both Ortega and Miranda had occupied the tract,-Miranda and his family being sometimes in occupation, as Ortega and his wife were at others; and the additional question therefore was, whether Ortega was occupying under Miranda, or Miranda occupying under Ortega,-a question made more difficult to solve by the fact that Ortega and his wife were in hostile relations, leaving it uncertain when she was in possession, as she was at times, whether she was occupying under her husband or under her father. In consequence of his domestic difficulty, moreover, Ortega left California in 1843 for Oregon, remaining there till 1847; between which years Miranda got his grant: and a question was whether Ortega had abandoned the property. Ortega's title was partly of a documentary kind and partly of an equitable sort, and resting on parol evidence. The documentary title consisted of a sheet of paper containing:

1. Petition to the governor, Alvarado.

2. A marginal order of reference.

4. A decree of concession.

There was also produced a map of the land solicited; though when made was a question in the case. The petition was in the name of Ortega, and was dated June 12th, 1840. The marginal order was in the handwriting of and signed by Governor Alvarado, and dated June 20th, 1840; this date, however, being an altered one, as hereinafter stated. The informe was signed by M. G. Vallejo, and dated July 30th, 1840. The decree of concession was dated August 10th, 1840, and, translated, in its important parts as follows:

'I grant to Don Antonio Ortega the land petitioned for, with the understanding that in order to obtain the issue of the respective titulo, and to regularly make up the necessary expediente (by which the boundaries should be marked), and the necessary proceedings be taken, he shall make a map as required by law, which he shall present without delay, together with this instancia, which shall serve him as security during the further proceedings indicated.'

These documents were produced, together with the map, from the custody of the claimant. It did not appear that they were at any time on file in the public archives. The oral testimony came from a great number of witnesses.

Governor Alvarado, who was twice examined, testified that he executed and delivered this grant to Ortega at the time it bears date; and that some time afterwards, in the last of 1840, or first of 1841, Ortega brought to him the original expediente and map, and left them with him, and that he kept them for Ortega until about 1848, when he gave them up to him.

As respected the date of the dise no, now produced by the claimants under the title of Ortega, testimony of Alvarado, given on his second one, was as follows; Ortega himself testifying also to the same effect as to the dise no:

'Question 23. You have said that Ortega twice presented himself to you in Monterey, in 1840, in relation to this grant; state what papers, if any, he presented to you on the occasion of his first visit, and what papers on the occasion of his second visit.

'Answer 23. My recollection is that he brought with him each time the same papers, that is the petition, but the first time without any map; the second t me the petition and dise no together. He might have come other times, but I only recollect those two times.'

It was at the second interview that the 'concession' was given.

General Vallejo, agent of colonization under the Mexican government, testified that in 1838 or 1839, Ortega applied to him, as was customary, with his petition for permission to settle upon this rancho; that he gave him the permission asked for, and he immediately moved on the rancho, taking with him his father-in-law, Juan Miranda, and his family; that he built a house and corrals, and stocked the place with horses and cattle; that he (Vallejo) furnished him with stock for that purpose; that Miranda occupied the land for Ortega; that Ortega obtained the grant from Governor Alvarado in 1840; that he saw the grant himself; and that he never gave Miranda any license or permission to occupy this rancho, or any portion of it.

Richardson testifies that this rancho was granted to Ortega by Governor Alvarado in the year 1840; that he knew the boundaries of the rancho by seeing the original grant, and having it in his possession; that Miranda occupied the rancho under Ortega by virtue of a special contract between Miranda and Ortega; that they both told him so.

De la Rosa testified that he wrote Ortega's petition for him, and made the very map now exhibited in the case; that he made it in 1839 or 1840; that he saw the grant, saw it in the house of Ortega on the rancho in question; that Miranda occupied the rancho for Ortega; that Ortega's family ived on it during his absence in Oregon; that Miranda applied for a grant of this land to himself while Ortega was absent in Oregon; he (Rosa) drawing and presenting the petition; that a grant to him was written out in the office of the secretary of state, but was never signed by the governor.

Jacob Leese, alcalde of Sonoma at the time Miranda applied for a grant, testified that he gave him the certificate found in his expediente wholly upon the allegation set forth in his (Miranda's) petition, and from the fact that he (Miranda) lived upon the land. He also says: 'But the fact of the former grant (to Ortega) being concealed or contradicted by the petition, I was deceived; and if the grant was obtained from the governor through the deception practised upon the alcalde, that grant would be fraudulently obtained, and would be void.'

Father Accolti, a priest, testified that he became acquainted with Ortega in 1845 in Oregon [to which place, as mentioned, Ortega went in 1843, remaining there till 1847 or '8], and at that time Ortega urged him and some other priests and some sisters of Notre Dame to come to California and establish a school, stating that he would give them, together with 'that piece of land, half of his stock of cattle on the land.' He stated that he had the grant to the rancho from the Mexican government. The offer was made on condition that he would educate his (Ortega's) children. He also testified that the original title-papers in this case, viz., the expediente and map, together with a deed subsequently given by Ortega to Brouillet, were all placed in his possession in December, 1849.

Father Brouillet, another priest, the person just mentioned by Father Accolti, testified that he made an agreement with Ortega in 1849 to educate his children; and that, in consideration thereof, Ortega made a deed to him of all this rancho, excepting one league. He identified the original deed as the one delivered him by Ortega. He also testified that he was put in possession of this rancho by Ortega, May 1, 1849, in the presence of one Miller and Theodore Miranda, a son of Juan, who was also present as a witness, and acquiesced to the possession given in his presence by Ortega. This possession was given on the rancho, and at the same time the deed from Ortega was delivered to him, as well as the original title-papers of the rancho. He also testified that the title-papers, viz., the expediente and map, are the same which were delivered to him by Ortega, May 1, 1849, on this rancho, in presence of Miller and Theodore Miranda; that before he delivered to Ortega his contract to educate his children, he consulted General M. G. Vallejo as to the validity of Ortega's title, and that Vallejo assured him the title was genuine; that in the same year he took the said Ortega's expediente and map to Monterey, and there showed them to Governor Alvarado; and that Alvarado, at that time, assured him that the said title to Ortega's rancho was genuine; that there was but one question that could be raised in it, which was, that the Departmental Assembly had not acted upon it, but that he did not think that would be any objection in the courts of the United States.

Miller, the person mentioned by Brouillet, confirmed this account of delivery of possession

Bojorques testified that Ortega owned this rancho as early as 1841, was in possession of it in 1839, and had a small house on the creek of San Antonio; that Juan Miranda and his son, Teodoro Miranda, occupied the rancho for Ortega; that he obtained his information from Ortega and both the Mirandas.

Walker testifies that he knew Ortega in Sonoma in 1843; that he told him at that time that he owned this rancho; and that he often heard him talking about his rancho in the presence of others; and he 'never heard it denied or contradicted that it was his rancho,' and that it was generally reported to belong to Ortega. He also stated that he went to Oregon in the same company with Ortega; that before leaving Sonoma for Oregon, Ortega went to his rancho and brought stock away from there; and that he saw him driving the stock, and he said he had taken them from the rancho for the purpose of driving them to Oregon; and, when in Oregon, he often heard Ortega say that he intended returning to his rancho of San Antonio and to his family.

In addition to this and other similar testimony, it appeared that the French traveller, Duflot de Mofras, who was in California in 1841, in his published Exploration du Territoire de l'Oregon, des Californies, &c., a work whose general good authority had been recognized by this court, in giving the names of the owners of ranchos in this region, includes Ortega among them. The passage in De Mofras's book, translated, reads thus:

'At the bottom of the great anse of Sansalito, to the north of the tongue of land which divides, and at two leagues to the east of Richardson, one meets with the rancho of the deceased Irishman, Read. . . . Behind the farms of Richardson and of Read, to the north and the west as far as the sea, arise the small ranchos of Las Gallinas, Berry, Garcia, and Ocio, near the Punta de los Reyes, and Bojorques, the nearest to the port of La Bodega. Finally, more to the north and the east, ORTEGA, Martin, Pituluma, the Vallejos, Dorson, and Mackintosh, the most northern establishment of the Mexican territory. Five miles to the north of the rancho of Read, one meets, not far from the shore, with the mission of Saint Raphael. . . . The lands of the mission are excellent. We saw in its gardens superb plants of tobacco, cultivated by a man named ORTEGA.'

Ortega, who had at the time of the suit no interest in the result, was himself examined. After testifying positively to having obtained the grant in 1840, he said thus:

'After the making of the decree of Governor Alvarado, and during the same year, I went to Monterey, and applied to Alvarado for a full and formal title; but it was during the recess of the Departmental Assembly, and I could not obtain it. I did not occupy the land in person, but my father-in-law, Juan Miranda, occupied it for me in the year 1840. Miranda occupied the land by placing his son there, who r mained there six years, having a hut there, and he had fifty cows there. I applied to Governor Alvarado, with the paper before mentioned, and presented a map, and then I went to Oregon, leaving the papers with the governor.

'My father-in-law occupied the land on my account for the whole six years, but never paid me anything whatever for the use of it. I think my father-in-law died in 1845; I went to Oregon in 1843, and was there four years, and he died the year before I returned. I do not know whether Juan Miranda obtained a grant of the land to himself or not. Teodoro Miranda, a son of Juan Miranda, was occupying the land when I returned from Oregon, the same that was occupying it when I went. He continued occupying the land from 1841 to 1848. I do not know who occupied the land after 1848. I claimed the land after I came back from Oregon; I went to Alvarado and got the papers for the purpose of establishing my claim. This was after the country had been taken by the Americans. I kept the papers about a year, and then delivered them to a French priest by the name of Brouillet; I made a present of the land to the priest, in pay for the education of my children for eight years. I never received judicial possession of the land. I have no interest in the success of this claim, or the want of it.

'Question. Did you ever demand of Teodoro Miranda the possession of the land?

'Answer. I did not; I went to his mother, who had the control, and demanded it of her. She told me the rancho belonged to her; that she had a paper from Murphy, and from Leese, the alcalde of Sonoma. I did nothing afterwards towards getting the occupancy of the land, but went to Alvarado and got the papers before mentioned.'

On the other hand, the Miranda title was thus supported:

The expediente of Miranda. This was found in the archives, duly numbered and entered on Jimeno's Index. It consisted of:

1. A petition of Miranda, dated February 21, 1844.

2. A certificate by Jacob Leese, alcalde of Sonoma, that the land had been occupied several years, and that it did not belong to any pueblo or corporation. Dated February 20, 1844.

3. A report by Jimeno, dated May 2, 1844, that the land had been occupied for four years by the party interested, by cultivation, and by having a house thereon, with all his goods; and that it does not belong to any one in particular.

4. An order that the title issue, signed by the governor, and dated May 30, 1844.

5. A decree of concession, dated October 8, 1844, declaring Juan Miranda owner of the place called Arroyo de San Antonio, and directing the corresponding title to be made out, and entered in the respective book, and the expediente to be sent to the Departmental Assembly for its approval.

6. Two copies of the formal grant or titulo, dated October 8, 1844, but unsigned.

The grant to Miranda, however, was not consummated by delivery of the title-paper, it not having been signed, said the witness, De la Rosa, 'on account of the civil disturbances and the breaking out of the revolution about that time;' though Miranda's daughter, the wife of Ortega, swore that her father was taken sick and could not attend to it.

Numerous witnesses were produced to show that Miranda was the reputed owner, and that he was in possession for twenty years; positive testimony being adduced that such possession began so far back as 1838. One person swore that he had 'put three hundred head of cattle upon it, thirty wild mares, and some tame horses, branding the cattle with his brand, which he had made at the blacksmith's shop.' It was incontestable that in an expediente of one Padilla, to whom was granted a tract called the Roblar de la Miseria, and adjoining the one in question, the tract granted to Padilla was described as bounded on one side by 'land of Don Juan Miranda;' and the same designation of ownership was on the accompanying dise no or map. In this case, General Vallejo had certified to the alcalde 'that the boundaries borderi g are the same as those mentioned in Pailla's petition.' The petition, in that case, was dated November, 1844. In another case, a petition and grant to one Bojorques, for the Laguna de San Antonio, the former dated August, 1844, and the latter November, 1845, the rancho San Antonio was described in the same way, as 'lands of Juan Miranda;' and the same characterization was found on the map of an adjoining rancho, called Olimpale. So, too, it was obvious that the date of the marginal order of Governor Alvarado, on Ortega's petition, had been altered from 1841 to 1840; the ink in which the alteration was made being of a different color from that in which the marginal order was itself written. So it was a fact that, by inspection of the papers themselves, the dise nos of Ortega and of Miranda appeared to be transcripts one from the other, and to have been made by the same person and at the same time. The edges of the paper on which they were made so tallied that they made 'indentures.'

As respected Ortega himself, while it was testified that he was a man whom one never 'heard anything against,' it appeared that his life had been of a singularly miscellaneous character. He was a Mexican by birth, and born in 1781, being of course about sixty years old at the date of his petition, as he was seventy-two when he was examined in the case. In 1802-3 he was living in New Orleans. Afterwards he took holy orders, and exercised the office of a priest for about three years. He then entered the Mexican army, and served there for about twenty years, rendering, said Governor Alvarado, 'many meritorious acts for his country.' In 1834-5 he appears to have been 'keeper of the keys' at the mission of Sonoma; 'mayordomo' of the same. In 1838 he married Maria Francisca Miranda, daughter of the Miranda under whose title the appellees claimed; a handsome woman, greatly younger than himself, who soon fell in love with a man named Salvador. The character of the lady and the nature of the new relations appear in her own testimony, which, in question and answer, was thus:

'Question. What is your name, age, and place of residence?

'Answer. My name is Francisca Miranda; I don't know my age; I live in Petaluma, California.

'Question. Are you acquainted with Leonito Antonio Duque de Ortega?

'Answer. Yes, I know him; I am his wife.

'Question. How long has it been since you were married to the said Ortega?

'''Answer. I do not know''. I was married to him a long time before he went to Oregon.

'Question. How many times, before your husband abandoned you, did you and he quarrel?

'Answer. I never quarrelled with him. It was he who did with me.

'Question. Before leaving you, did he not charge you with inconstancy?

'Answer. He never accused me; he was the guilty one.

'Question. Have you been divorced from him or legally separated?

'Answer. After his return from Oregon, he charged me before an American, who was represented to me as the Governor of the State of California, with having a man. I appeared with my witnesses; and he appeared, but had no witnesses, and the matter was dropped.

'Question. Since your husband abandoned you, have you had any children, and how many?

'Answer. Since my husband abandoned me I have had three children, besides the one with which I was enceinte when he left.

'Question. Since your husband left you and went to Oregon, have you ever lived with him?

'Answer. I never have.'

In 1841, Ortega kept a little liquor store in Sonoma, cultivating some land, and near the same time 'used to be knocking about General Vallejo's (who was Commandant General), as a sort of steward.' In 1843 he went to Oregon. 'He said he was going to Oregon to remain; that he had reasons for leaving the country, family reasons; he accused his wife of inconstancy to her marriage vows, and said he was never coming back.' He took with him 'one cow and a couple of horses.' In 1845 he set off from Oregon to return to California by sea; but the vessel was wrecked, and after losing everything he had, he 'returned to Oregon almost naked.' He here stayed with a man named Walker, who 'gave him blankets, took care of him, fed, clothed, and sheltered him.' During his second stay in Oregon, as appeared by a witness who was 'head sawyer in a sawmill there, and kept a boarding-house for the hands,' Ortega's occupation was 'that of waiting on the house, bringing wood and water;' he paid nothing for his board, the witness 'thinking a great deal of him.' 'He had an Indian boy, who worked all the time for him, to endeavor to get money to return to California.' In 1848 'he was started off home again.' In 1849 he was 'bell-ringer to the church. . . . I don't know,' said one witness, 'any occupation he had at that time beside that. He officiated in the church, ringing the bell, attending round there. He was a good deal about General Vallejo's as a sort of steward. He had no property that I know of, except one cow and a couple of horses that were given to him, and which he took with him to Oregon.'

The court below decided in favor of the Miranda title; assigning among the minor reasons for its opinion the character of Rosa, 'as disclosed by his own avowal, that in 1844 he was endeavoring to obtain for Miranda a grant of lands which he knew had already been granted in 1840 to Ortega; or, as established in the case of Luco et als. v. The United States, and other cases, in which the unreliability of his statements, and those of several other of the claimant's witnesses, have been judicially declared by the Supreme Court;' referring also to the fact that other ranchos, granted about 1844, as the Roblar de la Miseria, Laguna de San Antonio, and the Olimpale, referred to this tract, one of their boundaries, as 'lands of Juan Mirandia;' that the alteration of dates in the case was a circumstance not explained; that the preponderance, both of proofs and probabilities, was, th t Miranda's possession was not that of a tenant; and that 'in 1843, Ortega departed to a foreign country, under circumstances from which an intention to abandon his own might well be inferred.' The circumstance of the maps in Miranda's petition, though this last was presented in 1844, being apparently made at the same date as the one in Ortega's petition, though alleged to be of an earlier date, and both made by one person, De la Rosa, was adverted to as a circumstance indicating that Ortega's map was possibly made after the date when it ought to have been, and was inserted posthumously in his papers.

Messrs. Cushing and Gillet, for the appellants (title of Ortega):

1. Where witnesses are not impeached by the evidence in the case, and allowed to defend their characters, if attacked, they must be treated as witnesses of good character, and entitled to full credit. What has been said by this court in opinions given in former cases, cannot be referred to in order to discredit them. Such a course is not tolerated in tribunals of justice. This bench has recently settled that question. 'The former opinions of the court,' says GRIER, J., speaking for the court, 'may be referred to on questions of law, but cannot be quoted as evidence of the character of living witnesses.' Certainly witnesses cannot be convicted of perjury as 'matter of law.'

2. The acts of third persons are not admissible evidence against the claimant to defeat his legal rights. The United States seek to avoid the rights of the claimant by showing that certain persons had asked for or obtained grants of land in the vicinity of those in question, describing the latter as Miranda's. This is not legal evidence for any purpose. Such descriptions cannot affect third persons who had no agency in making them. If admissible, it would merely show that the applicant did not discriminate between ownership and possession, or did not know the relation of landlord and tenant which existed between Ortega and Miranda, or the facts in relation to the ownership.

3. The United States cannot set up a wrongful act of Mexican officers to defeat rights which that government had previously conferred. The rights conferred upon Ortega by the concession were within the lawful powers of the governor. If any governor made a second grant when the first was outstanding, his act was a fraud upon the first, and void. Such a fraudulent and void act is no evidence to prove the first grant had not been made, or that it had ceased to be effective. A party cannot thus make evidence for himself to avoid or do away with his own acts conferring rights upon others. It follows that all the evidence given in this case concerning the Miranda grant is illegal, and cannot be considered as affecting the rights of Ortega.

4. Ortega had such a claim that Mexico, under her laws, usages, and customs, would, on a proper application, have completed and confirmed his title. By the laws of Mexico she gave away her land in large tracts to settlers, those having rendered important military services-within which class Ortega was-being entitled to high consideration. By usage, the formalities to be observed in granting were far from a technical character, and might be varied by the granting officer, and even statute requisites dispensed with, as held in Fremont v. The United States, and for the reason that formalities did not enter into or constitute the essence of the matter, and were unimportant. By custom, permission to occupy conferred a right to possession, and such occupation under an expectation of acquiring a full title gave the occupant an equitable claim to be furnished with a legal title. As Mexico gave away her lands, she was liberal in her usages and customs, and as proved in this case, as it has been in others, and under the present circumstances, would have promptly completed the title. The United States are bound, without reference to th change of government and of circumstances, to do now what Mexico would have done. It cannot be questioned that, had Mexico remained the owner, her governor, Alvarado, or any other one, would have completed Ortega's title. That Ortega received permission to occupy the land in question is proved by Vallejo and Rosa. This confers the same rights as are required under incomplete grants by express authority of the Mexican government.

5. A grant cannot be set aside on mere suspicion. Here, however, not even a case of suspicion has been developed. Not a witness has sworn that Ortega did not present his petition; that Vallejo did not give permission to occupy, and did not sign the report, and Alvarado the grant, or Richardson and De la Rosa did not see the grant, as stated by them respectively. We have the right, then, to assume that there was a grant to Ortega, and made at the time stated, which he then had in his possession, because we have proved it, and that proof has not been overcome by conflicting proof. This fact is fixed. It follows that Ortega had a right to possession, conferred by proper authority. It has been suggested that Ortega's map was not made in 1840, when it purported to be, and was copied from Miranda's made in 1844. But why may not Miranda have got his as well from Ortega's?

6. Then, it is proved that Ortega went into possession in 1839 or 1840 by Vallejo, who let him have stock to put upon the land; proved by Rosa, by Richardson, and by Ortega himself. That he claimed to be in possession, by his father-in-law, is also proved by the same, and others. It is proved by Walker that he took stock from there to drive to Oregon. It is proved by Father Brouillet, Miller herein confirming him, that when he sold to and put the former in possession, Theodore Miranda, the only one on the land, raised no objection, thereby admitting Ortega's right to the land and possession. Under these circumstances the possession was, in fact, by Ortega personally, and by Miranda, as his tenant, at first, and by his son afterwards, for him. None of the government witnesses know or swear, as a matter of fact, that Miranda did not occupy for Ortega. They infer otherwise, from what they saw, which is not inconsistent with the supposition that he held under and represented his son-in-law, as sworn to by him and several others. That the possession in law was that of Ortega, and followed the permission given to occupy and the title, cannot be reasonably questioned.

7. It is a presumption of law, when Miranda entered under Ortega, who had a claim of title, that the possession continued under Ortega until the contrary is fully proved. Miranda could not throw off his allegiance as a tenant, and assume control on his own account. This, however, is what he sought to do when he sought to obtain title in the absence of Ortega. The law will not let him do this. He entered as a tenant, and continued as a tenant. Those who set up the change in the character of the possession must prove it, which in this case has not been done. Having entered under Ortega, the presumption of law, in the absence of clear proof, is that while he continued there, he was a tenant under the owner by whose permission he entered. Hence, the concession or grant and continued occupation are established, and a confirmation must follow.

8. Abandonment of claim to land can only take place where the party in fact intends to and does abandon, which must be manifested by acts of a decided and unequivocal character showing such intention, and which can be in no other manner accounted for. Abandonment is a matter of intention, demonstrated by significant and pertinent acts. There are none such on the part of Ortega in this case. He has not in fact abandoned, nor has he said one word looking to abandonment. Leaving a wife, who was an adulteress, is wholly different from abandoning his lands. The case is that of a man who h ving put a tenant into possession, and leaving that tenant in occupancy, took a portion of his stock, and went away, but who, while away, was continually talking of his land and stock, and of his intention to return, and who proposed to transfer a portion of both to the clergy, if they would go home with him, and educate his children. He started to return, and was shipwrecked, and as soon as he could procure means, started again, and entered upon his land, and, in presence of his tenant still holding under him, conveyed and delivered possession of all his grant but a league, since conveyed. All this, instead of showing abandonment, disproves it, and establishes the fact that there was none actual or intended, but that he clung to his rights from first to last.

Messrs. Black, Reverdy Johnson, and Wills, contra:

1. The facts show a secret grant of the land in controversy; a grant retained in the private custody of the Governor of California until after the cession of that country to the United States; one of which no public record in the archives of that country was made at the time at which the grant purports to have been made, or afterwards during the Mexican dominion; one of which the successors of Albarado and other Mexican officers had no knowledge; one which is first made known to the public by the production of the appropriate evidence of its existence only after the Mexican dominion over that country had ceased; one, in regard to which, during all the antecedent period of time, the land granted had been in the actual and visible occupancy of another, while the alleged grantee himself was absent for the greater part of the intermediate time in Oregon, a foreign country. In view of these facts, we contend:

1st. That archive evidence of the existence of an alleged Mexican grant for lands in California is necessary in order to secure the confirmation of a claim founded on such a grant; and that, without such evidence, neither this claim nor any other can be confirmed by this court, without the previous reversal of a long line of its decisions on that very point.

This proposition is fundamental, and, if true, disposes of the whole case. The foundation of it was laid by this court in the case of United States v. Cambuston. The doctrine, in another form, was quite strongly reasserted in the following year, to wit, at December Term, 1857, in United States v. Sutter. In Fuentes v. United States, a direct application of what was announced in United States v. Sutter, as a test of truth, was made to determine the validity of another grant, and the doctrine was reannounced at the same term in other cases. In Unted States v. Bolton, we have a yet more pointed application of the doctrine. The claim was rejected. The want of archive evidence to authenticate it, left it without any 'legal foundation to rest upon.' The language of this court, however, in United States v. Luco, so remarkable that it must be quoted as the announcement of a general principle applicable to all California land cases. 'In conclusion,' says Mr. Justice GRIER, 'we must say, that, after a careful examination of the testimony, we entertain no doubt that the title produced by the claimants is false and forged, and that, as an inference or corollary from the facts now brought to our notice, it may be received as a general rule of decision, that no grant of land purporting to have issued from the late government of California should be received as genuine by the courts of the United States, unless it be found noted in the registers, or the expediente, or some part of it be found on file among the archives where other and genuine grants of the same year are found; and that owing to the weakness of memory with regard to the dates of grants signed by them, the testimony of the late officers of that government cannot be received to supply or contradict the public record, title of which there is no trace to b found in the public archives.' How wise are the rules here laid down, the case before us proves. The claim is supported, as we see, by the testimony of General M. G. Vallejo and De la Rosa, whose bad character and bribeworthy avocations are graphically drawn by this court in the case just named. De la Rosa is the same gentleman who declared in that case, 'that the only right way of swearing was by the priest on the Catholic cross.' The claim is also supported by the testimony of Ortega, the pretended grantee, another of Vallejo's dependents, who, according to the evidence, exercised at various times the functions of priest and soldier; was keeper of a little liquor store at Sonoma; hanger-on at Vallejo's; at one time mayordomo of the mission of Sonoma; at another, keeper of the keys at the same mission; sometimes a bell-ringer at a church, and sometimes a waiter, a carrier of wood and water in a private house, and a lumberman at a saw-mill in Oregon; during the latter and the greater part of which time, according to the theory of the claimant, he was the owner of four leagues of land in California!

2. While the Ortega title has no record evidence in its favor, it has a mass of such evidence against it.

The Miranda title shows a petition, dated February 21, 1844, alleging an antecedent possession for four years of the land solicited; certificates by the alcalde of the district, and by the secretary of state, that he had occupied it for four years, and merited the grant; an order that a title be issued; a decree of concession, followed by two copies of the grant, made in pursuance of the decree of concession; and finally an extract from Jimeno's Index, showing that the grant had actually been issued by the governor in favor of Miranda, and that the proper record of the fact had been made in Jimeno's Index, one of the registers of the archives, as required by law.

But this is not all. It appears that Padilla, in 1844, petitioned for a certificate to enable him to obtain a grant for the land known by the name of Roblar de la Miseria, and calling for the land of Don Juan Miranda as his boundary on the southeast; that General Vallejo, in 1844, certified to the alcalde that the boundaries of the land solicited by Padilla, as described, were true. The same facts, substantially, also appear in the petition of Bojorques for the grant of the Laguna de San Antonio, and with regard to the rancho called Olimpale. It is said on the other side, that this is the evidence of third persons, and cannot be used to dispossess Ortega of his property. But it is the same sort of evidence, and far better in quality, than that given us on that same side in the book of Monsieur Duflot de Mofras, the French traveller, who seeks to dispossess Miranda.

3. Admitting the original genuineness of the Ortega title, still, by his removal to Oregon to reside in 1843-at that time a foreign country to Mexico and California-he lost, by the law of Mexico, whatever title he had previously acquired, and the land then became grantable to Miranda, or to any other Mexican citizen. By the colonization law of 1824, it is enacted as follows: 'No one who, by virtue of this law, shall acquire the ownership of lands, shall retain them if he shall reside out of the territory of the republic.' Now, it is undisputed that Ortega left California in 1843, and resided in Oregon until 1848.

It is not necessary to put this point on the ground of intentional abandonment. But the fact no doubt was, that when Ortega left California, he went abandoning everything he left behind, and intending never o return. The cause of his leaving was a quarrel with his wife, whom he suspected of conjugal infidelity. He separated from her, took all his goods with him-one cow and a couple of horses-and went. He said he was going to Oregon to remain; he said he had reasons for leaving the country, family reasons; he accused his wife of inconstancy to her marriage vows, and said he was never coming back. The facts that he was jealous of his wife, and that he left the country for that reason, are not denied. The facts that, years afterwards, he endeavored to return to California, but was prevented for a time by shipwreck, and afterwards did actually return, show only the states of his mind at those times. That, however, is unimportant. The true inquiry is: What was his intention when he first went away? If he went away with the intention of residing permanently abroad, and had any title to the rancho San Antonio previously, he lost it by the express law of Mexico. It is also to be observed in this connection, that it was not until after the removal of Ortega to Oregon that Miranda applied for his grant, even admitting, for the sake of argument, that he had not been occupying the land previously on his own account. Under the law of Mexico, therefore, after that event he had a clear right to ask for a grant of the land to himself.

4. In point of fact, the documentary and other evidence on which this claim is founded is false and fraudulent. The discussion of this question of fact involves a consideration of the oral evidence, in connection with the archive evidence already considered. The alteration of dates is a bad circumstance. The identity in appearance of the two maps, another. Miranda's map cannot have been copied from Ortega's; for the latter, if it had existed, was, according to the case set up, in Alvarado's private custody, and not accessible to Miranda. The oral evidence, considered separately, presents a distressing conflict of testimony. One class of witnesses swear strongly in favor of the genuineness of the Ortega title-papers; to the fact of the occupancy of the land by Ortega (although he himself swears that he never did occupy it); to the tenancy of Miranda under Ortega, and generally to the validity and bon a fides of that title throughout. Another class of witnesses swear to the occupancy of the land by Miranda, for his own benefit; to his notorious ownership of the land; to the poverty of Ortega; to his abandonment of California, and absence from the country until after its cession to the United States,-in short, to the validity and integrity of the Miranda title.

In this labyrinth of conflicting statements, one leading fact appears to guide us, and that is, while the one class of witnesses seeks by oral evidence not only to create a valid title, in the absence of archive evidence, but contrary to it, the testimony of the other class, on the contrary, is fortified by archive evidence, and is in harmony with it from beginning to end. Supposing the weight of oral evidence on each side to be equal, this fact alone is sufficient to determine the preponderance against the claim in this case.

Mr. Justice SWAYNE delivered the opinion of the court.

The appellant claims the land in controversy under a grant alleged to have been made by the proper Mexican authority to Antonio Ortega. In support of the title the following documentary evidence was introduced:

A petition by Ortega to Governor Alvarado of the 12th of June, 1840.

A reference of the petition, on the 20th of the same month, by the governor to Vallejo for a report.

An informe by Vallejo, of the 20th of July following. A decree by the governor, of the 10th of August, 1840, in which he says:

'I grant to Don Antonio Ortega the land petitioned for, with the understanding that, to expedite the respective title and to regulate the necessary documents, by which he shall mark out the lines and perform the necessary acts, he shall make a map as required by law, which he will present opportunely. This decr e shall be returned to him, that it may serve to him as a security during the other operations indicated.' And lastly, a dise no of the land.

These papers were all produced from the private custody of Ortega.

An expediente of Juan Miranda for the same land is also found in the record. It consists of the following documents:

A petition by him to the alcalde of Sonoma, of the 21st of February, 1844. (It states that he had been in possession four years, under a concession from Vallejo, but that the papers had been lost.)

A certificate from Jacob Leese, that Miranda had been in possession several years, and that the land did not belong to any pueblo or corporation.

An order of the 30th of April, 1844, by Governor Micheltorena, that the secretary of state should report upon the petition.

An informe of May 2d, 1844, by Jimeno, setting forth that Miranda had occupied the land four years 'by cultivation and by having a house with all his goods thereon,' as appeared by the report of the justice of Sonoma, and advising that the grant be made.

An order by the governor, of the 30th of May, 1844, that the title issue. A dise no of the land.

And two drafts of an instrument, granting the land to Miranda, prepared for the signature of the governor, but not signed.

Ortega was examined as a witness. [His honor here read the testimony of Ortega as given, ante, p. 665.] A large mass of testimony from other witnesses was taken by the parties.

It would be a waste of time to analyze it, to weigh against each other the parts which are in conflict, or to attempt to explain or reconcile their antagonisms. Such a process could subserve no useful purpose. It will be sufficient to indicate the conclusions at which we have arrived.

The expediente of Miranda was found among the proper archives. It is referred to in Jimeno's Index. The title never passed into a formal grant by the governor, but it is shown that this arose from the illness of Miranda and the disturbed condition of the country. The record is wholly silent as to any objection by the governor or from any other quarter. Ortega testified that he was never personally in possession. It is clearly proved that the possession of Miranda commenced as early as 1838, and continued from that time. The petition of Bojorques in 1844, and the grant to him in 1845; the petition of Padilla in 1844, and the accompanying map, and the dise no of the rancho Olimpale, all refer to the rancho in controversy as 'the land of Juan Miranda.' These documents show that Miranda was regarded in the neighborhood as the owner, and not as a tenant. We are entirely satisfied, from the evidence found in the record, that he held in his own right and not vicariously for Ortega. The petition of those claiming the title of Miranda was withdrawn from before the Board of Land Commissioners. Why, does not appear. Whatever the cause, its withdrawal cannot lessen the light which the facts relating to it throw upon the merits of the claim of Ortega.

The expediente of Ortega is confronted by strong suspicions of its bona fides. There is no trace of it among the proper archives. It does not appear that any paper belonging to it was ever in any public office before the petition in this case was filed by the appellant's intestate. The Mexicans of the Spanish race, like their progenitors, were a formal people, and their officials were usually formal and careful in the administration of their public affairs. Full archive evidence exists in the case of Miranda. Its absence in this case is not satisfactorily accounted for.

Ortega abandoned his wife in 1843, and went to Oregon. He was poor and had been so for years. It does not appear that, from the time of the concession to the period of his departure, he made the slightest effort to consummate his title. He returned in 1847. There is reason to believe that when he left the country he intended finally to abandon his claim, if he had not done so before, and that such was the understanding of the Mexic n authorities.

It appears that the order of reference made by the governor, which is found in the margin of the petition, was originally dated in 1841, and that this date was subsequently changed to 1840 with ink of a different color. A clerical mistake in writing the date originally, by antedating it a year, is unnatural and improbable. As it then stood it was subsequent in date to the report for which it called. It has been suggested that 1841 was the true and proper date, and that the concession was made after the return of Ortega from Oregon, and that it was antedated in 1840,-the writer not observing that the order of reference was dated in 1841,-and that, upon this fact being discovered, the date of the reference was changed to cure the discrepancy. The alteration is unexplained and unaccounted for. The evidence leaves us in the dark as to the time, the motive, and the circumstances.

It seems to be admitted that the dise no of Ortega and that of Miranda were prepared by the same hand and at the same time. Alvarado made the order of reference at Monterey on the 20th of June, 1840, and the order of concession at the same place on the 10th of August, 1840, or 1841. In his last deposition this passage occurs:

'Question. You have said that Ortega twice presented himself to you in Monterey, in 1840, in relation to this grant; state what papers, if any, he presented to you on the occasion of his first visit, and what papers on the occasion of his second visit? 'Answer. My recollection is that he brought with him each time the same papers-that is, the petition; but the first time without any map; the second time the petition and dise no together. He might have come other times, but I only recollect those two times.'

Ortega testified to the same effect as to the dise no.

That both are mistaken upon the subject is shown by the concession. In that instrument, which was given at the second interview between them, Alvarado says: 'He' (Ortega) 'shall make a map as required by law, which he will present opportunely.' There was, then, no map present at that time. When was it prepared and added to the other papers? It is claimed, on behalf of the United States, that it was made when the dise no of Miranda was prepared in 1844, and came into the hands of Oretega by some means unexplained after his return from Oregon. Upon this subject, as in regard to the altered date of the concession, the evidence is inconclusive and unsatisfactory. The obscurity is increased by the character of some of the leading witnesses who have testified in support of the claim. But the solution of these difficulties is not necessary to the determination of the case. It has been held by this court, in a long and unbroken line of adjudications, that where there is no archive evidence, and its absence is unaccounted for, and there has been no such possession as raises an equity in behalf of the party, and especially where, in addition, the expediente produced is tainted with suspicions of fraud, the claim must be rejected. We feel no disposition to relax the rule, and it is fatal to the case of the appellant.

DECREE AFFIRMED.


text: Talk:White v. United States (68 U.S. 660)/Opinion of the Court


text:
Resolute and Northerner

The waters of Puget's Sound, in Washington Territory, were not within the Rules and Regulations adopted 17th October, 1857, of the Supervising Inspectors, appointed under the act of Congress of 30th August, 1852, to be observed by vessels in passing each other.

CONGRESS, by act of August 30, 1852, provided for the appointment of supervising inspectors of steamers and machinery; one of the duties of such inspectors being to establish rules and regulations to be observed by all vessels in passing each other, and to assign the limits of territory within which they should be obligatory. The inspectors accordingly met, and in 1857 established nine districts, defined their limits, and adopted certain rules to govern vessels in passing each other within them. On ibel and cross-libel, in admiralty, between a steamboat and steam-tug for collision, the chief question of law was, whether the waters of Puget's Sound, in Washington Territory, were within the limits of any one of the nine districts established by the supervising inspectors.

Mr. Justice CLIFFORD delivered the opinion of the court, on the point of law in the case, to this effect:

title: Resolute and Northerner


text: Talk:Resolute and Northerner

title: Talk:Resolute and Northerner


text:
Resolute and Northerner/Opinion of the Court

The Territory of Washington was established on the second day of March, 1853. By the terms of the act, it embraces all that portion of Oregon Territory lying and being south of the forty-ninth degree of north latitude, and north of the middle of the main channel of the Columbia River from its mouth to where the forty-sixth degree of north latitude crosses said river, thence with said forty-sixth degree of latitude to the summit of the Rocky Mountains. Washington Territory was not included in any one of the nine districts, as is obvious from the language employed. The fourth district embraced the coast of California and Oregon, and all waters flowing into the Gulf of Mexico south and west of Cape Sable and north of the Rio Grande, except those of the Mississippi above Napoleon; but no mention was made of the Territory of Washington, and there was no other district which embraced any portion of the Pacific coast. The testimony of witnesses examined in the case is full to the point that no such rules and regulations were known there, and that none such had been furnished by the supervising inspectors, or any other public authority. Two printed copies of such rules and regulations are required by the act to be furnished to each of such vessels; and the direction is, that they shall at all times be kept up in conspicuous places on such vessels, and be observed both night and day. Congress did not make the rules or establish the districts, but authorized both to be done by the supervising inspectors. The rules and regulations adopted did not embrace the waters which the steam-tug was navigating, and consequently she was not in fault in not having complied with those rules and regulations. The limits of the fourth district were amended in March, 1861, so as to embrace the Pacific coast, with all the waters flowing into the same, within the original boundaries of the district. Doubts are entertained, however, whether the limits, as amended, included the Territory of Washington; but the regulations adopted in December following provide that the first district shall embrace all the waters and rivers of the Pacific, which remove all doubt upon the subject.

DECREES ACCORDINGLY.


text: Talk:Resolute and Northerner/Opinion of the Court


text:
Parker v. Phetteplace

APPEAL from the Circuit Court for the District of Rhode Island.

The complainants below, appellants here, filed a bill as judgment creditors, to set aside conveyances of the property of one Edward Seagrave, their debtor, and made, as they alleged, to hinder and delay the execution of their judgment. The judgment was recovered in the Circuit Court of the United States, at November Term, 1854, against the said Seagrave, for $60,520.88, and costs, in a suit commenced on the 26th October previous. Execution was duly issued and part of the debt collected, the remainder still remaining due and unpaid. The conveyances charged to be fraudulent were executed by the judgment debtor on the 17th November, 1854, and the 4th January, 1855; the first to Phetteplace & Seagrave, a firm in Providence, Rhode Island, of certain real estate and stocks; the second, an assignment to one Updike, of all his real and personal property, in trust for the benefit of creditors; giving certain preferences specified in the assignment. The Seagrave of the firm of Phetteplace & Seagrave, was George Seagrave, a brother of Edward, the debtor. Both were residents of the same place, Providence.

It appeared from the proofs, that in the early part of 1853, Edward Seagrave, the ebtor, Merrit & Co., and S. Harris, associated together to speculate in the purchase and sale of wool, the purchases to be made upon the credit of the paper of the parties, to be discounted at the banks. In this way, Seagrave's liabilities from acceptances and indorsements amounted, in July, 1853, to about $176,000. Becoming alarmed at the magnitude of this debt, he made an arrangement with his associates, by which he sold out his interest in the business to them; and in consideration that they would pay all the outstanding paper, and would indemnify him against the same, he agreed to pay them $33,500. This sum was paid and the indemnity given. These associates failed to take up the paper, and on the 4th February, 1854, went into insolvency. Seagrave stopped payment on this partnership paper the same day, but continued his individual business until the 4th January, 1855, when he made the assignment to Updike for the benefit of his creditors. In the autumn of 1854, Phetteplace & Seagrave, the defendants below and appellees here, a firm in Providence, as already stated, finding the outstanding paper of the associates in the wool speculation, held by the banks, at a great discount, purchased of that paper to the amount of some $45,000, at the rate of from fifteen to twenty cents on the dollar, and afterwards applied to Edward Seagrave, the judgment debtor, one of the parties to the paper, for payment or security. The stocks and real estate conveyed for the security and payment of this indebtedness, together with the property assigned to Updike for the benefit of creditors, constitute the subject of complaint in the bill.

The bill charged that this outstanding paper against Edward Seagrave was purchased under an arrangement or understanding that he should have the benefit of the difference between the nominal value and the per cent. paid; that this proportion of the stocks and real estate transferred to the purchasers to secure the payment belong to him, and is held in trust for his benefit; and that the scheme was contrived for the purpose of hindering and defeating their execution; and further, that the assignment to Updike was a part of the same fraudulent device.

The answer denied positively the allegations of the bill, and Edward Seagrave, who being now resident out of Rhode Island, was not made a defendant in the case, and was called by Phetteplace & Seagrave as a witness, testified in like positive manner that there was no understanding between him and Phetteplace & Seagrave, such as was alleged; that he had no interest in the paper, and that he had never received any profit from it.

The court below, after a full hearing of the case, dismissed the bill; which was the matter complained of here.

Mr. Jenks, for the creditor, plaintiff in error-admitting that by the law of Rhode Island an insolvent debtor might make preferences, if fair ones-relied largely on the special facts of this case, which he brought together from every part of the testimony, and presented in a strong and highly colored aspect. It was not to be expected that proof could be brought of a covenant in writing to commit this fraud, nor even proof of words. The parties here were intelligent men; far too intelligent for that. That would be gross and vulgar fraud. But the deed, not the less, was done. The greatest crimes which power ever has commanded have been done without a word.

An understanding-'signs' parleying again with 'signs'-is all that is necessary to allege. The relations of the parties speak trumpet-tongued.

George Seagrave was Edward's brother; both lived in the town of Providence; both had the means of knowledge, and actually knew the amount of property held by Edward, and that a conveyance to them by Edward, of the property described in the present suit, would deprive him of all means of paying his other creditors. This knowledge, Mr. Jenks contended with force, threw upon them the burden of proving the fairness of the transaction. That they had not done; and it is admitted that they purchased depreciated paper, which Edward Seagrave had neither paid, nor expressed the least intention of paying, and then claimed payment in full, knowing that such payment would deprive the debtor of all means of paying anything to his other creditors. They were not ordinary or just creditors. They came to be creditors at all but as purchasers of discredited paper. The simple idea of the thing the idea of one brother going into the street, to purchase for almost nothing the notes of his dishonored brother, whom, in the purchase, it was his interest of course to dishonor further; and then, with his business accomplished, coming back with the notes in his hand to obtain payment of them in full,-was disgusting; and would, of itself, fill every honorable mind with suspicion and disesteem. Did he buy the notes, meaning to put into operation against a brother the sharp and cruedl means of adverse process of the law to collect them? Certainly not. He knew they would be paid without this. Such was the understanding, and herein was the fraud.

The assignment of Updike was void, and was part of the scheme to cover up the fraud by which the property of Edward Seagrave was placed in the hands of his own brother and Phetteplace. Such assignments are no obstruction to the execution of legal process, or to the granting of relief in equity.

Mr. Potter, contra, contending that the purchase of the notes of an insolvent merchant was a practice perfectly known and legal, denied the existence of fraud, and relied largely, among other testimony, on the effect of the positive denials in the answer, which not only were uncontradicted by two witnesses, or by one witness and circumstances, but were fully supported by Edward Seagrave, the person best competent to declare his purposes and property.

Mr. Justice NELSON delivered the opinion of the court.

title: Parker v. Phetteplace


text: Talk:Parker v. Phetteplace

title: Talk:Parker v. Phetteplace


text:
Parker v. Phetteplace/Opinion of the Court

The case turns upon the answer to be given upon the evidence to this charge in the bill, as it is agreed that, according to the law of Rhode Island, the debtor in insolvent circumstances has a right to pr fer creditors in the distribution of his estate, or in the application of it to the payment of his debts.

The charge is denied in the answers, and Edward Seagrave, the debtor, not made a party to the bill, who was called as a witness for the defendants, sustains the answers. He testified that there was no agreement or understanding between him and the firm of Phetteplace & Seagrave that he was to share in the profits arising out of the purchase of this paper, nor had he any interest in the same, nor has he ever received any share of the profits, nor do the purchasers hold any portion of them in trust for his benefit. His testimony upon this point, and which constitute the main issue in the case, is full and explicit in the denial of any participation, directly or indirectly, in the transaction. The evidence relied on on the other side to overcome the answers of the defendants, and the testimony of this witness, is circumstantial and argumentative.

The court below, on a very full consideration of all the proofs, came to the conclusion that the purchase of the paper by Phetteplace & Seagrave was an independent transaction, without any agreement or understanding with the debtor; that their title to the paper was absolute and unqualified, and that the debtor had no interest in the same, legal or equitable, present or future, and rendered a decree dismissing the bill. We agree that there is ground of suspicion that the purchase was made by the friends and for the benefit of Edward Seagrave, the debtor, but concur with the court that the weight of the proofs is otherwise, and the bill properly dismissed. The question upon the assignment to Updike is so intimately connected with the transaction we have just examined, the conclusion arrived at in the one must control that in the other.

The principal point made against this assignment is, that the preference in it in favor of Phetteplace & Seagrave for certain debts and liabilities, embrace the outstanding paper which they had purchased, and which was secured by the previous conveyances. But, on looking into the assignment, this interpretation is not warranted. The preference relates to other indebtedness and liabilities.

It is also said that Edward Seagrave embraced in this assignment the purchased outstanding paper which he took up, on giving security to the purchasers. But this was proper, as Merrit & Co., and Harris, who were on the paper, had bound themselves to indemnify Seagrave against it, and were, therefore, still liable upon it; and were to the assigns on the transfer of it to him.

DECREE AFFIRMED.

Mr. Justice MILLER dissented.


text: Talk:Parker v. Phetteplace/Opinion of the Court