text:
Dwyer v. Dunbar

ERROR to the District Court for the Eastern District of Texas, the case being thus:

William Dunbar, assignee of George C. Dunbar, brought suit against T. A. Dwyer, on certain notes given by the said Dwyer. Dwyer, who had other creditors, and had become embarrassed, set up as a defence, that after the maturity of the notes, one Smyth, by W. Dunbar's authority and acting for him, had made and carried into effect a general settlement of his, Dwyer's, indebtedness to his other creditors, and to Dunbar, and had signed and given to him an acquittance, as follows:

'Received of T. A. Dwyer, $35,500 in merchandise, in full for the annexed amounts to date, which amount includes the amount of William Dunbar, assignee of George Dunbar, whose power of attorney I do not hold, but whose agent said that William Dunbar was willing to do what the balance of New York creditors were. In case said Dunbar declines acceptance of the above composition, the pro rata due him is to be held subject to the order of said Dwyer.'

The defence set up further that before this receipt was given, the plaintiff, W. Dunbar, by a letter dated on the 23d of May, 1856, and written and signed and sent to the defendant, Dwyer, by one J. T. Ray, acting for and by the authority of him, Dunbar, had authorized him, Dwyer, to make the settlement set forth in the receipt, and had thereby approved it in advance. And it averred that Dunbar had not declined acceptance of the settlement, &c., but, on the contrary, had ratified the same.

On the trial, the notes having been put in evidence, the defendant offered a deposition of Smyth, to which was attached a letter written by Smyth himself, some time previously, to one Charles Russell, an agent of Dwyer. This letter professed to give an account of the assent of Dunbar to the compromise set up; spoke of a letter 'from Dunbar to Dwyer, shown me by the latter,' and which Smyth stated that he regarded as 'the authority of Dwyer to adjust Dunbar's claim on the same basis that the other claims were arranged.'

To the same deposition was attached, also, the letter of Ray. This letter ran thus:

NEW YORK, May 22, 1856.

T. A. DWYER, ESQ.

DEAR SIR: Yours of April 26th has been received. Mr. Dunbar, the assignee, being absent at the time, I could not join with the other creditors in their arrangements without consulting him. Since then I have seen Mr. Dunbar. He is disposed to arrange your indebtedness the same as other creditors.

Respectfully,

J. S. RAY,

For W. DUNBAR, assignee of G. C. Dundar.

The deposition to which these letters were attached, after stating that at a meeting of Dwyer's creditors, sundry of them nominated him, Smyth, attorney to adjust their claims against Dwyer, and that among those who came to the meeting was a person 'who represented himself as appearing for Dunbar,' and who stated that Dunbar 'was willing to do what other creditors were,' and that the other creditors had acceded to the settlement made-went on to say in reference to the letter of Smyth above referred to (this being all, however, which it said in reference to it):

'The letter of this affiant to Charles Russell, was written in reply to a letter of said Russell, wishing to know the circumstances respecting the settlement made in the Dunbar claim by me.'

The admission of the letter to Russell being objected to, on the ground that Smyth had nowhere stated in his deposition, that what he said in his letter was true, the court below excluded the letter.

The defendant then read the deposition, as also, Ray's letter attached; and read the power of attorney of the other creditors to Smyth, to compound and compromise things with Dwyer; Dwyer's receipt of the $35,000 merchandise; and after reading these, and a deposition of one Green, who testified that he had understood from the representatives of William Dunbar, as also from George Dunbar himself, that Dunbar was a party to the arrangement-offered in evidence a deposition from Russell. The deposition ran thus:

'While acting as the agent of T. A. Dwyer, the defendant, in June, 1856, I received a number of letters, among which there was one addressed to Mr. Smyth from Mr. Ray, agent of Mr. Dunbar, which I forwarded to Mr. Smyth. The contents of said letter were, to the best of my recollection, in substance as follows: 'Mr. Dunbar has returned to New York, and after conversing with him relative to the Dwyer claim, he says, any settlement you make with Dwyer will be satisfactory to him."

To this deposition the plaintiff objected that it did not show that the letter of Ray, mentioned in it, was sent by the plaintiff's authority, and that therefore the deposition was irrelevant. And it was accordingly excluded.

Ray himself then testified that he had been employed by William Dunbar, assignee of George Dunbar, to assist him in settling the indebtedness of the said George; that at the meeting he stated that he was present for W. Dunbar, assignee; that he had written the letter already read as his; that the letter was written by him (Ray) on his own responsibility, and without consulting Dunbar at all; and that Dunbar expressed dissatisfaction with the settlement made by Smyth, so soon as made known to him.

On this case the defendant asked the court to charge—

'That if the jury find that Ray was permitted by Dunbar, and, with his knowledge, to act for him and represent him in his business; and find also that Ray, in the name of Dunbar, did authorize Smyth to settle with the defendant Dwyer, then Dunbar will be bound by such act of Ray, notwithstanding that Dunbar may not have expressly authorized said Ray to do so, or may have disapproved of said act afterwards.

'That, if any person publicly acts with the knowledge of another, and without objection, as the general agent or manager for that other, such principal will be bound by the act of such agent, although he may not approve of the particular acts of such agent.'

But the court refused thus to charge, and charged:

'That to bind the plaintiff by the acts of Smyth, the authority of Dunbar to Smyth must be proved.

'That the representations of any person not proved to have been authorized by Dunbar, are not evidence against him.

'That the power of attorney is not evidence against Dunbar, unless signed by him.

'That if the jury find that the defendant executed and delivered the notes, and that he has not paid the same, they will find for the plaintiff.

'That to bind Dunbar by the compromise, the defendant must prove an acceptance by Dunbar of the settlement.'

Verdict and judgment having been entered for the plaintiff, the correctness of the court's action in excluding the testimony excluded, and in charging and refusing to charge as it did, were the matters now before the court on bill of exceptions taken.

Mr. Carlisle, for the plaintiff in error:

1. It appears, by Ray's deposition, that he was employed by William Dunbar as the assignee of George, in the capacity of agent to assist him in settling up the indebtedness of George; and that on the meeting of Dwyer's creditors Ray represented and was present for W. Dunbar. Green deposes, in effect, to the fact that Dunbar was a party to the arrangement that Smyth should settle the claims of the New York creditors against Dwyer; and Ray himself deposes as to the letter of May 22, 1856, written by him to Dwyer. In this state of the evidence the court erred in excluding Russell's deposition. Conceding that whether there was sufficient proof of the agency to warrant the admission of the deposition was a preliminary question for the court to determine, it is insisted that here the proof was sufficient. The deposition should have been read so soon as there was evidence of authority or acquiescence sufficient to be weighed by the jury.

2. The court erred in excluding Smyth's letter from the jury. His agency being proved by evidence aliunde, the letter does not fall within the rule which excludes res inter alios acta, but is to be regarded as Smyth's act and the defendant's voucher; or as so illustrating and characterizing the principal fact as to constitute the whole one transaction. It was necessary to exhibit the principal fact in its true light and give it its proper effect.

3. The court erred in not giving the instructions asked by defendant, and also erred in instructing the jury, on plaintiff's motion, that to bind Dunbar by the compromise, defendant must prove an acceptance by Dunbar of the settlement. There is a wide distinction between general and particular agents. In the former case the principal may be bound by his agent's acts, though exceeding his authority.

4. The court erred in instructing the jury, on the plaintiff's motion, to find for him if they should find from the evidence that the defendant executed and delivered the notes and had not paid the same. The law, with respect to defences founded on compositions between a debtor and his creditors, appears not to have been distinctly defined until the case of Good v. Cheesman. It used to be sometimes laid down that a right of action once vested could only be barred by a release or by accord and satisfaction. But since the decision of that case the law has been regarded as settled that a composition agreement by several creditors, although by parol, so as to be incapable of operating as a release, and although unexecuted so as not to amount in strictness to a satisfaction, will be a good answer to an action by a creditor for his original debt, if he accepted the new agreement in satisfaction thereof; and that for such an agreement there is a good consideration for each creditor, viz., the undertaking of the other compromising creditors to give up a part of their claim.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Dwyer v. Dunbar


text: Talk:Dwyer v. Dunbar

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

title: Talk:Dwyer v. Dunbar


text:
Dwyer v. Dunbar/Opinion of the Court

The suit was founded upon two promissory notes executed by Dwyer to George C. Dunbar, and by him indorsed to the defendant in error, who was the plaintiff in the court below.

Dwyer, in that court, set up, as a defence to the action, that he had made a compromise and composition with his creditors, and that the plaintiff was a party to the arrangement and bound by it. The plaintiff denied that he was in anywise a party to the agreement.

The cause was tried by a jury, and a verdict and judgment were rendered for the plaintiff. Upon the trial, Dwyer took exceptions to the ruling out of certain testimony which he offered, and to the refusal of the court to give instructions which he submitted.

A bill of exceptions was taken, setting forth these rulings, and they are relied upon in this court to reverse the judgment.

We will consider them in the order in which they are presented in the record.

1. The rejection of the letter of Smith. The letter, of itself, was clearly not evidence. There being no proof of the truth of its contents, it was within the definition of res inter alios acta. It was simply a narrative to a third person of a past transaction, in relation to which the writer was a competent witness, and gave his deposition. All that he says upon the subject of the letter is as follows:

'The letter of this affiant to Charles Russell was written in reply to said Russell wishing to know the circumstances respecting the settlement made of the Dunbar claim by me. This affiant is not acquainted with J. S. Ray or his signature.'

The letter was properly excluded from going to the jury.

2. The ruling out of Russell's deposition. This deposition was offered to prove the contents of the letter from Ray. The evidence was entirely secondary in its character. Without the excluded letter there was no foundation for its introduction. The ruling of the court was correct.

3. The instructions asked by the defendant below to be given to the jury were not called for by the facts of the case as disclosed in the evidence. Under the circumstances, they were abstractions. They had no practical application, and the court was not bound to give them.

The instruction given, which was complained of, was in conformity with the practice of the courts of the United States, when a clear case is made out by the plaintiff and no defence, or only one clearly invalid, is shown by the defendant. The court below proceeded upon this principle, and as the case is disclosed in the bill of exceptions, did not err in its application.

AFFIRMED WITH COSTS.

title: Dwyer v. Dunbar/Opinion of the Court


text: Talk:Dwyer v. Dunbar/Opinion of the Court


text:
Townsend v. Greeley

ON the 20th of June, 1855, the common council of the city of San Francisco, the legislative body of that city, passed 'An ordinance for the settlement and quieting of the land titles in the city of San Francisco.' This ordinance is generally known in San Francisco as 'The Van Hess ordinance,' after the name of its reputed author. By the second section of the ordinance the city reliquished and granted all her right and claim to the lands within the corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st day of January, 1855, and to their heirs and assigns forever, provided such possession continued up to the time of the introduction of the ordinance into the common council; or, if interrupted by an intruder or trespasser, had been or might be recovered by legal process. This ordinance was ratified by the legislature of the State on the 11th of March, 1858.

At the time this ordinance was passed the city of San Francisco asserted a claim to four square leagues of land, as successor of a Mexican pueblo, established and in existence at the site of the present city, and had presented her claim for the same to the board of commissioners created under the 'act to ascertain and settle the private land claims in the State of California,' of March 3d, 1851, for confirmation, and the board had confirmed the claim for a portion of the land and rejected the claim for the rest. The portion confirmed included the premises in controversy.

One Greeley, having acquired title to certain premises from parties who were in the actual possession of them at the time mentioned in the ordinance, brought the present action, ejectment, in one of the District Courts of the State of California, against two persons whom he found in occupation,-Townsend and Powelson, defendants below,-to oust them. The defendants filed separate answers.

Townsend, after pleading a general denial, averred as a separate answer, in substance, 'that by the treaty of peace between the United States and Mexico, dated at Guadalupe Hidalgo, February 2d, 1848, the ownership and title in fee simple of the lot passed to and became vested in the United States, and that the United States afterwards, by force and effect of the act of the Congress thereof, passed March 3d, 1851, entitled 'An act to ascertain and settle the private land claims in the State of California,' and by force and effect of the final decision and decree of the board of commissioners of said United States, appointed and acting thereunder (upon the petition and claim of the city of San Francisco, presented to and filed before said board in favor of said city), the ownership and title in fee so acquired and held by the United States passed to and vested in the city of San Francisco, and that by divers mesne conveyances, and by force of divers ordinances of the said city, and an act or acts of the legislature of California, the title in fee had, prior to the 28th day of March, A. D. 1862, become, and then was, vested in and held by one Mumford, who executed a lease of the premises to the defendant Powelson, under which Powelson entered and took possession, and has ever since continued, and still is, lawfully, peaceably, and rightfully in possession thereof.' And that all acts done by the defendant Townsend with reference to the premises, have been done as the agent and attorney of the said Mumford, and by his authority, and by the license and permission of the said Powelson, his lessee.

The answer of the other defendant, Powelson, was substantially the same, except that he averred that he held as tenant under Mumford.

On the trial various exceptions were taken to the ruling of the court upon matters relating to the possession of the plaintiff, but the manner in which the matters arose are not stated, because the rulings made thereon are not noticed by the court, for the reasons given in its opinion.

The defendants offered in evidence a certified copy of the petition of the city of San Francisco, filed on the second day of July, A. D. 1852, before the board of United States Land Commissioners, appointed and sitting under the already mentioned act of Congress of March 3, 1851; the said copy being certified to be a true copy of said petition by the United States Surveyor-General of California.

Also, in connection with the said petition, a certified copy of the decree of said board of land commissioners thereupon made, and filed in the office of the secretary of said board on the 21st of December, A. D. 1854, confirming to the city a tract of land therein described; the said last-mentioned copy being likewise certified by said surveyor-general to be a true copy of the said decree.

The court then inquiring of the defendants and requiring them to state by what proof they intended to follow the said documentary evidence, they offered to prove that the premises in controversy were a part of the land described in the decree of confirmation; that the appeal for the decree was dismissed by the District Court of the United States, March 30, 1857, and that the decree had become final; and they also offered to deraign title to the premises in dispute under said confirmation, from the city to Mumford, by conveyances executed and delivered since the decree of confirmation, and since the dismissal of the appeal therefrom, and prior to the 28th day of March, A. D. 1862, and offered to justify the acts to Townsend done in reference to the premises, by proving authority for his acts as agent and attorney for Mumford, and to justify the entry of the defendant Powelson by proving a lease to him of the premises from Mumford.

The court then inquiring further of the defendants, and requiring them to state by what means, and in what particular manner they expected to deraign title to Mumford from the city, they offered to show the recovery of a judgment against the city, the issue of an execution thereon, and the sale by the sheriff of the county thereunder of the premises in controversy, and the purchase of the same by one Wakeman, the delivery of a sheriff's deed to him, and his conveyance of his interest to the said Mumford.

Thereupon the plaintiff objected to the admission of the evidence offered, or of any part of it, on various grounds, and among others, on the ground that the premises in controversy were not subject to seizure and sale under execution upon a judgment against the city; and hence that the title could not be affected in any way by the introduction of the evidence offered. The court sustained the objection and excluded the evidence. The defendants excepted to the ruling. The plaintiff had judgment, and the Supreme Court of the State having affirmed it, the case was here upon writ of error, under the twenty-fifth section of the Judiciary Act.

Messrs. Ewing and Vanarman, for the plaintiffs in error:

The court below erred in excluding from the jury the evidence offered by the defendants of the final confirmation of the premises in controversy by the United States to the city, and of the deraignment of title thereto from the city to Mumford, under whom they undertook and claimed the right, to justify their possession.

1. By the treaty of February 2, 1848, between the United States and the Mexican Republic, commonly known as that of Guadalupe Hidalgo, the title to all lands then vested in the Mexican Republic within what is now the State of California, passed to and became vested in the United States.

2. By presumption of law all lands within this State are deemed public lands, and the title thereto vested in the United States until the title is shown to be elsewhere. And this presumption applies as well to lands situated within the limits of a 'pueblo' as elsewhere.

3. The confirmation, therefore, by the United States of the premises in dispute to the city of San Francisco, by decree of the United States Commissioners, dated December 21, 1854, made final March 30th, 1857 (which the defendants offered to prove by the evidence excluded by the court), operated to vest the title of the United States, from that date, in the city.

4. The title so acquired was one upon which an action of ejectment could be maintained, and, of course, defended.

5. The title so acquired was a complete American title under the act of Congress, though derived from Mexico through the United States, and was the legal title in fee simple absolute.

6. No trust attached upon this title. If any holding in trust could be predicated of lands being 'situated within the limits of a pueblo,' or of their being 'reserved or set apart for the uses of a pueblo,' nothing of either kind was shown in this case, and neither this court nor the court below could acquire any knowledge of either of those facts, except by proof.

Messrs. W. M. Stewart and C. Burbank, contra, for the defendant in error:

The court below, in the trial of the action, properly excluded the decree of the United States Land Commissioners confirming the title of the city of San Francisco to the pueblo lands and the evidence offered of the deraignment of the title of the city to Mumford; because—

I. The defendants only proposed to connect themselves with the title of the city by showing a judgment against the city and an execution sale under it. This would not show title in them; because—

1st. San Francisco was a pueblo at the date of the conquest and cession of California, with the municipal rights of such a body.

2d. The city, as successor to such pueblo, has a right and title to the uplands within her limits, and holds those undisposed of in trust for the uses and purposes of the municipality.

3d. He lands thus held in trust are not subject to seizure and sale under execution against the city.

II. The decree of confirmation did not, as asserted by the defendants, give an American title to the city. It only established the fact that San Francisco was a pueblo, and that the lands within her limits were not a portion of the public lands of the United States. It followed, as an inevitable conclusion, that the pueblo held the lands within its limits for the uses and purposes of the municipality.

Mr. Justice FIELD delivered the opinion of the court.

title: Townsend v. Greeley


text: Talk:Townsend v. Greeley

title: Talk:Townsend v. Greeley


text:
Townsend v. Greeley/Opinion of the Court

This is an action of ejectment to recover the possession of a tract of land situated within the corporate limits of the city of San Francisco, in the State of California. The plaintiff in the court below, the defendant in this court, claims to be owner in fee of the premises, by virtue of an ordinance of the common council of the city, passed on the 20th of June, 1855, and an act of the legislature of the State, confirmatory thereof. At the time this ordinance was passed the city of Francisco asserted title, as successor of a Mexican pueblo, established and in existence on the acquisition of the country by the United States, to four square leagues of land, embracing the site of the present city, and had presented her claim for the same to the board of land commissioners, created under the act of March 3d, 1851, for recognition and confirmation, and the board had confirmed the claim to a portion of the land and rejected the claim for the residue. The portion confirmed included the premises in controversy in this case.

By the second section of the ordinance the city relinquished and granted all the title and claim which she thus held to the land within her corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the first day of January, 1855, provided such possession was continued up to the time of the introduction of the ordinance into the common council, or if interrupted by an intruder or trespasser, had been, or might be recovered by legal process.

The party through whom the plaintiff in the court below traces his title was in such actual possession of the premises in controversy at the times designated by the ordinance; at least the jury must have found, under the instructions of the court, that he was in such actual possession, and in this court the finding must be taken as conclusive.

We have not looked into the rulings of the court below upon this matter, and therefore do not intimate, nor have we any reason to suppose that error intervened. We have not looked into those rulings, because of error was committed, it would not constitute ground of reversal.

The twenty-fifth section of the Judiciary Act of 1789, under which alone this court has jurisdiction to review the final judgments and decrees of the highest courts of a State, provides for such review only in three classes of cases:

First. Where is drawn in question the validity of a treaty or statute of, or authority exercised under the United States, and the decision is against their validity;

Second. Where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; and

Third. Where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the Constitution, treaty, statute, or commission. And in these cases no error can be regarded as ground of reversal except it appear on the face of the record, and relate to these questions of validity or construction.

The inquiry then is, whether error was committed in the disposition of any questions of this character arising upon the record.

The defendants in the court below alleged in their answer to the complaint-the designation applied in the practice of California to the first pleading in a civil action, whether at law or in equity-in substance as follows: that by virtue of the treaty of Guadalupe Hidalgo, between the United States and the Republic of Mexico, the ownership and fee of the premises in controversy passed to the United States; that by force of the act of March 3d, 1851, to ascertain and settle private land claims in California, and the final decree of the board of commissioners created under that act, the ownership and fee of the premises vested in the city of San Francisco; and that by various mesne conveyances and ordinances of the city, and acts of the legislature of the State, they passed to one Mumford, under whom one of the defendants holds as tenant, and for whom the other has acted as agent.

On the trial the defendants produced the petition of the city of San Francisco to the board of land commissioners for confirmation of the claim asserted to four square leagues; the decision of the board confirming the claim to a portion of the land; the dismissal of the appeal on the part of the United States by order of the District Court, in March, 1857; the recovery of a judgment against the city; the issue of an execution thereon; the purchase of the premises by one Wakeman; the delivery of a sheriff's deed to him; and the transfer of his title by sundry mesne conveyances to Mumford.

Upon objection the evidence thus offered was excluded on various grounds, and among others that the title of the city to the premises was not the subject of seizure and sale under execution. This ruling denied the position assumed by the defendants in their answer respecting the operation of the treaty, the act of Congress, and the decision of the board in passing a fee simple title to the city; for if the city had in this way, or in any other way, become invested with a title in fee simple at the time the judgment was docketed or the execution was issued, there could be no question that the title passed by the sheriff's sale and a deed.

The treaty of Guadalupe Hidalgo does not purport to divest the pueblo, existing at the site of the city of San Francisco, of any rights of property, or to alter the character of the interests it may have held in any lands under the former government. It provides for the protection of the rights of the inhabitants of the ceded country to their property; and there is nothing in any of its clauses inducing the inference that any distinction was to be made with reference to the property claimed by towns under the Mexican government. The subsequent legislation of Congress does not favor any such supposition, for it has treated the claims of such towns as entitled to the same protection as the claims of individuals, and has authorized their presentation to the board of commissioners of confirmation.

Nor is there anything in the act of March 3d, 1851, which changes the nature of estates in land held by individuals or towns. One of the objects of that act was to enable claimants of land, individual or municipal, by virtue of any right or title derived from Spain or Mexico, to obtain a recognition of their claims, and, when these were of an imperfect character, to furnish a mode for perfecting them.

Thus the government provided for discharging the obligation of protection cast upon it by the stipulations of the treaty, and at the same time for separating private lands from the public domain. By proceedings under that act, imperfect rights-mere equitable claims-might be converted by the decrees of the board or courts, and the patent of the government following, into legal titles; but whether the legal title thus secured to the patentee was to be held by him charged with any trust, was not a matter upon which either board or court was called upon to pass. If the claim was held subject to any trust, before presentation to the board, the trust was not discharged by the confirmation and the subsequent patent. The confirmation only enures to the benefit of the confirmee so far as the legal title is concerned. It establishes the legal title in him, but it does not determine the equitable relations between him and third parties. It is true if a claim were presented by one designating himself as trustee, executor, or guardian, or if such relation of the claimant to others appeared in the examination of the case before the board or courts, the decree might declare that the confirmation was to the claimant in such fiduciary character. But if the trust was not stated, and did not appear, the legal title was none the less subject to the same trust in the hands of the claimant.

By the laws of Mexico, in force at the date of the acquisition of the country, pueblos or towns were entitled, for their benefit and the benefit of their inhabitants, to the use of lands constituting the site of such pueblos and towns, and of adjoining lands, within certain prescribed limits. This right appears to have been common to the cities and towns of Spain from an early period in her history, and was recognized in the laws and ordinances for the settlement and government of her colonies on this continent. These laws and ordinances provided for the assignment to the pueblos or towns, when once established and officially recognized, for their use and the use of their inhabitants, of four square leagues of land.

It may be difficult to state with precision the exact nature of the right or title which the pueblos held in these lands. It was not an indefeasible estate; ownership of the lands in the pueblos could not in strictness be affirmed. It amounted in truth to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture-lands, or as a source of revenue, or for other public purposes. This right of disposition and use was, in all particulars, subject to the control of the government of the country.

The royal instructions of November, 1789, for the establishment of the town of Pictic, in the province of Sonora, were made applicable to all new towns which should be established within the district under the Commandant General, and that included California. They gave special directions for the establishment and government of the new pueblos, declared that there should be assigned to them four square leagues of land, and provided for the distribution of building and farming lots to settlers, the laying out of pasture-lands, and lands from which a revenue was to be derived, and for the appropriation of the residue to the use of the inhabitants.

It is evident from this brief statement that these lands were not assigned to the pueblos in absolute property, but were to be held in trust for the benefit of their inhabitants.

This is the view taken by the Supreme Court of the State of California after an extended and elaborate consideration of the subject.

This view was also taken by the Circuit Court of the United States, in the final decree confirming the claim of the city to her municipal lands. Since the trial of the present cause in the court below, the appeal taken by the city from the decree of the board of commissioners has been heard by the Circuit Court of the United States, to which the case was transferred under the act of July 1st, 1864. That decree declares that the confirmation 'is in trust for the benefit of the lot-holders, under grants from the pueblo, town, or city of San Francisco, or other competent authority, and as to any residue, in trust for the use and benefit of the inhabitants of the city.' From this decree the United States and the city of San Francisco appealed, the United States from the whole decree, and the city from so much thereof as included certain lands reserved for public purposes in the estimate of the quantity confirmed; but during the present term of this court both parties have, by stipulation, withdrawn their objections, and their respective appeals have been dismissed. It is therefore now the settled law that the municipal lands held by the city of San Francisco, as successor to the former pueblo existing there, are not held in absolute property, but in trust for its inhabitants. Trust property, thus held, is not the subject of seizure and sale under judgment and execution against the trustee, whether that trustee be a natural or an artificial person.

JUDGMENT AFFIRMED.

Another case-Townsend v. Burbank-Substantially the same in question and principle with the one preceding and like it from the Supreme Court of California, was decided in the same way with it: the CHIEF JUSTICE delivering the judgment of this court

AFFIRMING THE JUDGMENT BELOW.


text: Talk:Townsend v. Greeley/Opinion of the Court


text:
Townsend v. Burbank

Another case-Townsend v. Burbank-Substantially the same in question and principle with the one preceding and like it from the Supreme Court of California, was decided in the same way with it: the CHIEF JUSTICE delivering the judgment of this court

title: Townsend v. Burbank


text: Talk:Townsend v. Burbank

title: Talk:Townsend v. Burbank


text:
Townsend v. Burbank/Opinion of the Court

AFFIRMING THE JUDGMENT BELOW.


text: Talk:Townsend v. Burbank/Opinion of the Court


text:
Francis v. United States (72 U.S. 338)

ERROR to the Circuit Court of the United States for the District of Missouri.

The record showed a libel of information against certain bales of cotton marked C. S. A., as belonging to persons in insurrection against the United States, and the confiscation of which was demanded under the act of 6th August, 1861, entitled 'An act to confiscate property used for insurrectionary purposes.' [For the sake or distinction this case was numbered 939.] The act just referred to provides (by its third section, which indicates the persons who may institute proceedings)--

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

The order for the detention of the cotton was dated 18th October, 1862, and recited that it appeared, on the return of a warrant of arrest issued in case No. 934, that the marshal had previously arrested the said property. He was therefore ordered to detain it to answer the information now filed in No. 939. During the month of November and December some three or four claimants came forward and were permitted to file their several claims, take exceptions, plead and take issue as to ownership of the cotton.

On the 22d of January, 1863, the plaintiff in error, Franois, for the first time appeared and filed a petition, not as owner or claimant of any portion of the cotton, but 'that he may be admitted to appear in said case No. 939, as a party to the record as informer.'

His petition set forth, as a foundation of his claim, that he gave information to the Board of Trade at Memphis on the 2d October, 1862, and also sent a written statement to R. S. Howard, collector of the port of St. Louis, containing information on which the said cotton was seized by the said collector in the case No. 934, and on the 10th October filed an information in writing with the District Attorney, upon which information the said cotton was subsequently libelled in case No. 939.

The District Attorney moved to strike this petition from the files of the court. The motion was overruled, and the petitioner was allowed to make proof of his right to be admitted as informer. A hearing was then had by witnesses, ore tenus, before the court, by request of the proctor of Francis.

Mr. Howard, collector of the port, resisted the claim of the petitioner. After hearing witnesses the petition was dismissed, and the petitioner ordered to pay costs.

A jury was afterwards ordered to try the issues of facts as to the ownership of the several claimants, and their verdict was, 'That the allegations in the libel are true, and that we find for the United States.' After divers motions for a new trial and in arrest of judgment, a decree was entered for the government. In this trial of the issue by the jury, and the judgment of the court thereon, Francis, the plaintiff in error, was of course no party on the record; his petition to become such having been refused, and he having acquiesced in that decree of the court without appeal. However, the next entry in the record was, that on the 9th day of June, 1863, 'The claimants herein, and the petitioner Francis, filed in the clerk's office their bill of exceptions in the case.' Why exactly the court permitted Francis thus to place himself on the record, was not clearly explained. However, the record showed an exception to the charge sealed in his part of the case:

'Whereupon the court declared the law to be, that the taking of said written statement, by the said Francis, to the United States Attorney, at the request of said Howard, after the same had been addressed to the surveyor of the port, and delivered to said surveyor, did not constitute the said Francis an informer under the act of 6th August, 1861.'

The question here was accordingly the correctness of this view of the court below, as stated in this exception.

The case was submitted by Messrs. Knight and Krum, for Francis, the plaintiff in error, and by Mr. Stanbery, A.-G., and Mr. Ashton, Assistant A.-G., contra.

Mr. Justice GRIER delivered the opinion of the court.

title: Francis v. United States (72 U.S. 338)


text: Talk:Francis v. United States (72 U.S. 338)


text:
Francis v. United States (72 U.S. 338)/Opinion of the Court

Although the consideration of this case might be dismissed, as the plaintiff in error is no party to the record, yet it may not be improper to notice the decision of the court below as stated in the exception taken.

In reference to that, it is to be observed, that the proceedings in this case were not instituted for the joint benefit of the informer and the United States. Francis did not offer to interpose in the case till three months after the proceedings had been instituted 'wholly for the benefit of the United States,' after issue joined with the claimants on proof furnished by others. An unofficial informer is liable for costs and damages in case of judgment in favor of the claimants. The informer should come forward and have the information made in his own name. He cannot thus intrude himself on the record after the case is prepared and about to be tried by a jury, and when a condemnation is imminent, and when he has avoided responsibility for costs in thus keeping back. If the claimants had succeeded they could have no judgment against the United States for costs, nor against him as not being a party to the suit.

The information given to the collector of the port is under the act of July 13, 1861, which is an act for the collection of duties on imports. By the supplement of May 20, 1862, to that act, the penalties are to be distributed according to the 91st section of the act of March 2, 1799, an act to regulate the collection of duties on imports.

Now, the act of August 6, 1861, differs entirely in its scope and character from that of July 13th, in the same year. It is not an act for the collection of revenue. The collector of customs is not the seizing officer, nor as such entitled to a share in the fines and penalties inflicted by the act and its supplement.

In this case the property is seized as liable to capture; and it is made the duty of the President to cause 'the same to be seized.'

The act for regulating process in the courts of the United States, passed May 8, 1792, sections 5 and 6, provides for the taxation and payment of costs by informers.

So the act of 28th of February, 1799, section 8, providing for compensation of marshals, &c., provides for cases of informers on penal statutes, as to payment of fees and costs.

All the laws on the subject are based upon the supposition that the informer should be a party to the original proceeding. He cannot thrust himself into a proceeding instituted by the Attorney-General, for the sole use of the government, when it is resisted by such officer, who denies all his allegations, and refuses any further partnership with him.

Even if the plaintiff in error had been a party to the litigation, which he was not, and entitled to be heard, it is evident that he could not support his case.

JUDGMENT AFFIRMED.


text: Talk:Francis v. United States (72 U.S. 338)/Opinion of the Court


text: The Gray Jacket Merits

title: The Gray Jacket Merits


text: Talk:The Gray Jacket Merits

title: Talk:The Gray Jacket Merits