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Standard Oil Company v. Van Etten/Opinion of the Court

This action was originally brought in the state circuit court for the county of Genesee, in Michigan, and removed by the plaintiff in error, who was defendant below, into the circuit court of the United States for the eastern district of Michigan. The defendant in error sued as assignee of Merritt & Helme, partners as J. J. Merritt & Co., who were assignees of J. J. Merritt, upon a certain contract entered into between him and the Standard Oil Company, and subsequent modifications thereof, to recover a balance alleged to be due thereon on account of the price of certain headings for oil barrels sold and delivered in pursuance thereof.

By the original contract, dated October 4, 1873, Merritt, described as of Lapeer, Michigan, sold the Standard Oil Company 2,000,000 heading suitable for oil barrels, to be sawed 22 inches in length, full one inch thick on sap, and full one-half inch thick on the heart edge, and whenever more than two pieces are required to make a head the same shall be counted as two; to be delivered on board the cars at Cleveland, Ohio, on or before March 1, 1875, subject to the count and inspection of the Standard Oil Company, who agreed to receive and pay for the same as fast as inspected at the price of $40 per thousand. Merritt also agreed that full one-half of the whole amount of the heading should saw full two-pieced heading, and the Standard Oil Company agreed in that case, and if the other half were not more than three-pieced heading, they would pay an additional one dollar per thousand on the whole amount. It was further agreed that Merritt should have the privilege of drawing, on sight drafts, for $25 per thousand, through bank, accompanied by duplicate bill of lading signed by railroad company, as evidence of shipment, and that the cars should be so loaded as to have a net value in Cleveland of amount of draft after culling and paying freight.

This contract was modified by a supplemental agreement of April 1, 1874, Helme then becoming a party to it, by which it was stipulated that Merritt & Co. should make and deliver the heading, properly piled on land in Lapeer controlled by the Standard Oil Company; the latter to furnish a man to count the heading as nearly as might be from week to week as piled, but not to inspect it, the object of the count being to obtain an approximate estimate of the heading thus piled, in order to determine from time to time the amount of advances to be made thereon; but thereupon the delivery of the heading so counted should be deemed complete, and the heading should then become the property of the Standard Oil Company absolutely, Merritt & Co. being entitled to draw upon certificates of such counts at the rate of $20 per thousand, on which advances the oil company were to be allowed interest at the rate of 10 per cent. per annum until the heading should be received at Cleveland, and also to charge the cost of insurance thereon to the amount of $21 per thousand; the loss by fire, if any, above that amount to be borne by Merritt & Co. In all other respects the terms of the original contract were to govern.

On May 29, 1874, another modification of the contract was made, which recited that 'through an error made by the inspector, employed by said Standard Oil Company, the said J. J. Merritt & Co. have received from the said Standard Oil Company money in excess of the amount' which, under the contract, they were entitled to receive, amounting to about $2,500, and made certain provisions as to the time and mode in which it should be refunded, but otherwise left the contract unchanged.

On August 24, 1874, a further modification was agreed to, increasing the amount of the advances to $25 per thousand on the second million of the heading. The heading was manufactured mostly in 1874, and was piled on each side of the railroad track, upon land leased for that purpose by the defendant below, and shipments begun in May, 1875. Testimony on the part of the plaintiff below was offered and admitted to show that in loading an accurate account was made and kept of each car loaded, of the number of the car, the line to which it belonged, and the number of pieces in each car, and that there were 391 car-loads, containing in all 2,691,660 single pieces. After the first four car-loads had been shipped through, all rail, an arrangement was made between the parties by which the rest of the heading was to be sent by rail from Lapeer to Detroit, a distance of 60 miles, and thence by vessel to Cleveland. These first four car-loads by rail and the first cargo by vessel were counted and inspected by the defendant below at Cleveland, and returns of the result made to Merritt & Co. These returns showed the number of matched headings and the number of single pieces rejected, on inspection, as deficient in size and quality, called 'culls;' and it appearing that these were but a small portion of the whole, it was then agreed that if Merritt & Co. would cull before shipment as closely as they had done in these shipments, the defendant would not cull any more at Cleveland, but would merely match and count the matched heads. Evidence was offered on the part of the plaintiff below, and admitted, to prove that the subsequent deliveries were equal on an average with these shipments as to quality and size; and that, calculating the entire quantity by this comparison, it would show a delivery of 263,303 matched headings, more than had been accounted for, which, at $40 per 1,000, amounted to $10,532.12.

It was in evidence, on the part of defendant below, that on receipt of the heading at Cleveland, it was inspected by their inspector. This inspector being called as a witness, testified that he actually matched the whole of the first cargo as it was counted and inspected, but the rest by only averaging from samples; that is, he laid off and piled up a thousand pieces, and arrived at the matching by seeing how many pieces it took to make the number of inches, and made an average from that. The whole number of pieces, as taken by the teamsters, were reported to him, of which he made a record, and then reduced it to matched heading, which he reported to the company. The number of single pieces, in gross, was 2,296,160, making of matched heading 1,958,539 pieces. This, he said, was the usual mode of counting and matching.

It was admitted, on the part of the defendant below, that in going carefully over the inspector's calculations, errors had been discovered in computation, 25 in number, some in favor of and some against the company, and resulting in a balance of $144.34 against them, for which they admitted their liability.

On the basis of the count of their inspector, the Standard Oil Company rendered to Merritt & Co. an account, dated August 20, 1875, showing a credit balance of $542.54. That balance was paid and accepted, and no objection made to the statement of the account, until the bringing of this suit, January 10, 1876. One car-load of heading was shipped after the close of that account, and was accounted for September 25, 1875.

There was other evidence, on each side, which, it was claimed, tended to establish the accuracy of the counts, respectively, made at Lapeer and at Cleveland. There was no evidence bearing upon the question of any loss of heading between Detroit and Cleveland; but it did appear in evidence that when the heading was loaded in Detroit, upon vessels, bills of lading were made and delivered to the captains of the boats, showing the number of car-loads of heading on each vessel, which bills of lading were, upon the arrival of the vessels in Cleveland, delivered to the defendant below, at its office, when freight was paid thereon and charged to Merritt & Co., the bills of lading being retained by the Standard Oil Company. There was no evidence tending to impeach the good faith of the count on either side, or that the inspector of the defendant below was not a competent person for the business intrusted to him.

The court charged the jury, in substance, that by the terms of the contract, as modified on April 1, 1874, the heading became the property of the Standard Oil Company, on delivery at Lapeer on land leased by it, but subject to their inspection and count at Cleveland; that if that count was made fairly and in the exercise of the best judgment of the inspector, it would be binding on the plaintiff, unless its variance from the actual truth was too great to be accounted for by any error of judgment, in which case the plaintiff was not precluded from showing a mistake; that if upon all the evidence, the jury should be unable be determine whether there was fraud or mistake in the count upon either side, or if, upon being satisfied that there had been fraud or mistake, they were unable to determine which party is responsible for it, they must find for the defendant, except as to the small amount admitted to be due. And the jury was also instructed that the count and inspection, so far as it involved the culling or rejection of defective pieces and matching, so as to determine how many single pieces were required to make a matched heading, according to the contract, was a matter of judgment on the part of the inspector, which, if honestly exercised, would be binding; and that, consequently, the proof of mistake upon the case, as it rose upon the evidence, was confined to the count of the whole number of single pieces, and the consequent error, if such were proved, as to the number of matched headings; although the defendant company was not bound by the contract to make a gross count to determine the whole number of single pieces, or to keep any memorandum or estimate of any such gross count, or to make return thereof to Merritt & Co., its duty being performed if it handled all the heading delivered to it, and honestly and correctly counted it in such a way as determine the number of complete heads.

As to the account stated and rendered, the court charged the jury, in effect, that the account having been rendered in September, 1875, and no objection having been made unitl January, 1876, by the bringing of the suit, it had been kept such a time as made it an admission on the part of Merrit & Co. of its correctness, but that the plaintiff was not estopped from showing fraud or mistake in it, which, however, should be made clearly to appear, the burden of proof resting upon the plaintiff to establish it.

Various exceptions were duly taken to the rulings of the court in the admission of evidence, in refusing to instruct the jury as requested, and to the charge as given, which, so far as necessary, will be referred to in their order. A verdict was returned in favor of the plaintiff below for $7,688, and judgment rendered thereon, which the defendant below now brings into review upon this writ of error.

1. It is objected by the plaintiff in error, in the first place, that the court erred in admitting evidence as to the counts by both parties of the whole number of single pieces of heading, and submitting to the jury the comparison between them, as furnishing any means of establishing error in the count of matched headings. It is argued that the count of gross pieces was not recognized by the contract, as it contemplated only a count of matched headings; and that, as this involved culling the bad from the good, and the matching of single pieces to constitute the heading required by the contract, and then only a count of the number of the latter, the process involved, at least in two of its steps, the exercise of skill and judgment, and made it necessary, if mistake was relied on, to show directly that it had occurred in the actual count of matched headings. But, as we have already stated, the culling had been dispensed with after the first four cargoes; and the matching, as testified to by the inspector, was made upon an estimate based upon a few experiments, according to which, upon an average, the whole number of single pieces was reduced to matched headings. It did become necessary, therefore, for the inspector to make a count of the single pieces, as the means of arriving at the number of matched headings. It was also contemplated by the contract that a count of single pieces should be made at Lapeer, by a counter, also appointed by the defendant below, for the purpose of determining the amount of advances to which Merritt & Co. were entitled; and although this count was not the final and conclusive one, it was quite legitimate to use it in comparison with that made at Cleveland, as one mode of testing the accuracy of the latter. And this comparison was justified by the evidence, also objected to, that in those particulars which might affect the ratio of single pieces to matched headings, such as size, quality, etc., the early cargoes, in respect to which that ratio had been determined by actual inspection and count, averaged no better than all subsequent deliveries. It furnished to the jury, quite fairly and consistently with the intent of the parties to the contract, a means of determining whether there had not been a mistake in the last count, properly limited by the court in the rule that the discrepancy must be so great as that it could not reasonably be accounted for by any mere variation of judgment in the matter of matching.

It is admitted by counsel for plaintiff in error, and such undoubtedly is the law, that the count of the inspector at Cleveland was subject to impeachment for fraud or mistake; the mistake being not a mere alleged error of judgment, but one of fact, which prevented the proper exercise of his judgment. Such was the character of the mistake to which the evidence was directed, namely, a mistake in counting the number of single pieces, which formed the basis of an estimate and average from which the number of matched heading was deduced. The objection seems to be directed to the mode of proof, it being insisted that it should be direct evidence of the fact of a mistake, independent of the evidence of its amount. But we are not aware of any rule of law which requires any particular method of proving such a fact, differing from that required to prove any similar fact. Whatever naturally and logically tends to establish it is competent evidence. If a stranger had stood by at Cleveland, and, following the inspector in his count of single pieces, had detected him in error, which would necessarily affect the final count of matched headings, he would thereby have been a competent witness to prove the discrepancy. Proof of a similar count at Lapeer would differ only in degree, and not in quality, as evidence to the same effect.

It is suggested, however, in reply to this, that in the latter case an indispensable link in the chain necessary to connect the count at Lapeer with that at Cleveland is wanting, because it is admitted that there was no evidence to show that all the pieces of heading shipped at Lapeer were in fact delivered at Cleveland, and for aught that appears the quantity of the apparent difference may have been lost in transportation between the two places. But whether this was so probable, as to more reasonably account for the discrepancy, than the supposition of an error in one or both counts, was a matter for the consideration of the jury. They were not bound to assume a loss in transportation in the absence of any evidence on the subject, and were entitled to assume that the shipments arrived at their destination undiminished, in the absence of any reason to the contrary, especially in view of the fact that there had been no complaint from any quarter that the number of car-loads called for by the bills of lading was not verified, or that more freight had been charged and paid than would be due if there had been a deficiency. But independent of this, and on the assumption that the whole amount of the discrepancy between the two counts could be accounted for by an actual loss in transportation, the case of the defendant below would not have been strengthened. Although the count was to be of matched headings, and at Cleveland, and conclusive in the absence of fraud or mistake, nevertheless, by the modified contract of April 1, 1874, the delivery of the heading took place at Lapeer, so as to pass the property in the heading absolutely to the Standard Oil Company. And as the risk follows the title, any loss that subsequently accrued by non-delivery on the part of the carriers would be the loss of the defendant below, and the plaintiff would be entitled to recover the contract price on proof of the quantity of single pieces reduced to matched headings, delivered at Lapeer, upon the best evidence that could be adduced under such circumstances, although they could not be actually counted and matched at Cleveland, as required by the terms of the contract.

2. It is next objected by the plaintiff in error that the court below erred in its rulings upon the account offered and admitted in evidence, and which it was claimed was a stated account. The claim on this part of the case is that an account rendered becomes an account stated, unless objected to within a reasonable time; that what constitutes a reasonable time in such a case is a question of law; and that an account stated cannot be impeached except for fraud or mistake; and in support of these propositions counsel cite Perkins v. Hart, 11 Wheat. 237; Toland v. Sprague, 12 Pet. 334; Wiggins v. Burkham, 10 Wall. 129; Lockwood v. Thorne, 11 N. Y. 170; and other cases.

There is no dispute but that this is a correct statement of the law, and it is precisely what was charged by the circuit court, and in the very language of instructions asked for by the plaintiff in error. The court followed it up by adding also that the lapse of time from September, 1875, when the account was rendered, to January, 1876, when the suit was begun, without objection, converted it into a stated account, which could be impeached only for fraud or mistake. But the same evidence which sufficed to establish a mistake in the count at Cleveland on the part of the inspector, also impeached the account, for it was founded on that count and embodied its mistake.

3. It is further alleged as error that the court refused to instruct the jury, as requested by plaintiff in error, that 'this cause is based upon the ground of either fraud or mistake, and there is no evidence of any kind, except the two counts,' referring to the number of headings delivered, 'and if the jury find a verdict for the plaintiff, they must find a verdict for the entire amount. Either the defendant is liable for this entire amount or it is not liable, except for the small sum admitted.' This request was very properly denied by the court. There is no rule of law that limits, in such a manner, the discretion of the jury in dealing with the evidence on a question of damages in such a case. The very spirit of trial by jury is that the experience, practical knowledge of affairs, and common sense of jurors, may be appealed to, to mediate the inconsistencies of the evidence, and reconcile the extravagances of opposing theories of the parties. There was nothing illogical in the present case, in the verdict of the jury, proceeding upon the supposition of possible errors in both counts, and making probable allowances for their amount, although no mathematical calculation could be made to demonstrate the exact accuracy of the result. But even if the ruling was erroneous, as alleged, it is difficult to understand how it could have prejudiced the plaintiff in error. The argument presupposes that the evidence justified a verdict for the larger amount, and establishes merely that it was for less than it might properly have been. Whatever error was committed in this respect was certainly not to the prejudice of the party complaining.

One of the witnesses for the plaintiff below, on cross-examination, was asked this question: 'Have you not recently stated to different parties, in talking about the matter, that you wanted them to recover here, because you would then get your pay?' The plaintiff's counsel objected to the question on the ground that it did not specify time and place, to which such suggestion defendant's counsel replied that he did not propose to impeach the witness; whereupon the court sustained the objection, and to that ruling an exception was taken. There is not error in this. If the object was to impeach the witness by subsequent contradiction, the question was clearly incompetent, as too indefinite. If the design was to impeach the witness in another mode, as by showing interest or bias, supposing it to have been competent for such purpose, as to which we express no opinion, it was the duty of counsel to have accompanied his disclaimer with that qualification. He must be taken, without such explanation, to have waived the objection. The disclaimer, in its general form, was broad enough to cover every form of impeaching the credit of the witness, and it cannot be narrowed now without injustice.

We have considered all the exceptions of the plaintiff in error, and find no error in the record. The judgment is accordingly affirmed.


text: Talk:Standard Oil Company v. Van Etten/Opinion of the Court

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Missionary Society of Church v. Dalles City

This was a bill in equity filed by Dalles City, a municipal corporation organized under the laws of the state of Oregon, against the Missionary Society of the Methodist Episcopal Church, a corporation.

The complainant was incorporated by an act of the legislature of Oregon passed January 26, 1857, which was afterwards amended by an act passed January 20, 1859. By the last-named act the boundaries of Dalles City were established. Long prior to the passage of said acts of incorporation, to-wit, in the year 1852, a large portion of the land within said boundaries was settled upon and occupied as a town-site for the purposes of business and trade, and not for agriculture, and has been so occupied ever since that time. During the year 1855 the lawfully-constituted authorities of the county of Wasco, within which Dalles City was situate, caused the land so occupied to be surveyed and platted into lots, blocks, streets, and alleys, and the plat thereof to be recorded in the recorder's office of said county. A survey was made by the United States of the lands so occupied as a town-site and such survey was approved on February 4, 1860, and on April 19, 1860, the corporate authorities of Dalles City entered at the land-office of the United States in Oregon City the fractional north-west quarter of section 3, in township 1, of range 13 E., containing 112 acres, in trust for the several use and benefit of the occupants thereof, according to their respective interests. All this was done in pursuance of the act of congress approved May 23, 1844, and of the act of July 17, 1854, (10 St. 305,) by which the provisions of the act first named were extended to the territory of Oregon. The said fractional quarter is the land occupied by Dalles City as a town-site. The corporate authorities paid to the receiver of the land-office $1.25 per acre for said fractional quarter, and Dalles City claimed to have thereby acquired title thereto in trust as aforesaid.

The defendant, the Missionary Society of the Methodist Episcopal Church, claimed to own in fee-simple a tract of land containing 643 acres and 37-100 of an acre, for which a patent was issued to it by the United States on July 9, 1875. The land described in the patent included the fractional quarter to which Dalles City claimed title and of which it was in possession. The bill filed in this case asserted the validity of the title of Dalles City, the complainant, to said fractional quarter, and averred that the patent for 643 acres and 37-100 of an acre, which included said fractional quarter, was improvidently issued to the Missionary Society in violation of the rights of complainant, and prayed for a decree declaring the complainant to be the owner of said fractional quarter in trust for the use and benefit of the owners and occupants thereof, declaring that the defendant held the legal title in trust for the complainant, and directing it to make a conveyance to the complainant therefor, to be held by it in trust for the respective occupants thereof. Upon final hearing the circuit court rendered a decree in favor of the complainant, in accordance with the prayer of the bill. This appeal is prosecuted to reverse that decree.

E. L. Fancher, for appellant.

[Argument of Counsel from 337 intentionally omitted]

''Jas. K. Kelly and John H. Mitchell'', for appellee.

[Argument of Counsel from page 338 intentionally omitted]

WOOD, J.


text: Talk:Missionary Society of Church v. Dalles City


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Missionary Society of Church v. Dalles City/Opinion of the Court

lear, and does not seem to be disputed, that the title of the appellee to the fractional quarter of land described in the bill is a good and valid title against all the world, unless it be the appellant, the Missionary Society of the Methodist Episcopal Church. The title of appellee was acquired by virtue of an entry made at the proper land-office, in pursuance of the provisions of two acts of congress,-one passed May 23, 1844, (5 St. 657,) and the other July 17, 1854, (10 St. 305.) The controversy in the case arises upon the claim of the appellant, which contends that its title is better and superior to that of the appellee.

The patent from the United States to the Missionary Society of the Methodist Episcopal Church for the lands in controversy was issued by virtue of section 2447 of the Revised Statutes, and, as directed by that section, deciared as follows: 'That this patent shall only operate as a relinquishment of title on the part of the United States, and shall in no manner interfere with any valid adverse right to the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between adverse claimants to the same land.'

It is, therefore, clear that the patent does not conclude this controversy, and that if the United States had, at the date of the patent, no title to the lands described therein, the patent conveyed none to the defendant. But both parties contend that they had acquired the title of the United States long before the date of the patent. As the appellee is conceded to have prima facie a good title, the appellant is driven to show a better title, independently of the patent. This it has undertaken to do. The only question in the case, therefore, is, has it succeeded in establishing a title to the premises superior to that under which the appellee claims, and by virtue of which it is in possession?

The appellant asserts title under the provisions of the first section of an act of congress passed August 14, 1848, entitled 'An act to establish the territorial government of Oregon,' (9 St. 323.) This section, among other things, declared 'that the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes in said territory, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations respectively belong.' The appellant contends that on August 14, 1848, it was, within the meaning of the statute, occupying as a missionary station among the Indian tribes of Oregon the lands now in dispute. Whether this contention is well founded is the turning point of the controversy.

It appears from the testimony in the record that in the year 1836 or 1837 a missionary station was established by the Missionary Society of the Methodist Episcopal Church, under the superintendence of the Rev. Jason Lee, on the lands now in controversy, situate on the Columbia river, east of the Cascade mountains, at a place then called Wascopum, but since then known as the Dalles. In 1844 Lee was succeeded by the Rev. George Gary, who continued to be the superintendent of the station until July, 1847, when he was succeeded by Rev. William Roberts. At this time there were at the station a two-story dwelling-house, a school-house, which was used also as a church, a store-house, with cellar underneath, a barn, some farming lands inclosed, and farming utensils.

In August, 1847, Mr. Roberts, being still the superintendent of the station, transferred it to Dr. M. Whitman, who was a missionary of the Presbyterian Missionary Society, known as the American Board of Commissioners for Foreign Missions. An account of this transfer is given in the testimony of Mr. Roberts, as follows:

'In August, 1847, I transferred the said station into the     hands of Dr. M. Whitman, at the assent of the A. B. C. F. M.      The mission station was placed in his hands on the conditions      and with the understanding that it should be occupied by them      for the use and benefit of the Indians residing in that place      and vicinity. For the movable property they were to pay such     an amount as might mutually be agreed upon. For the station     itself they were to give no compensation, the understanding      being all the while that the mission was to be maintained by      them for the use and benefit of the Indians, in a religious      point of view, which included the education of the children,      the instruction of the Indian parents in all matters      pertaining to their religious interests and temporal      well-being. The reasons for the transfer without compensation     were briefly these: The Methodist mission had but one station      east of the Cascades, and more work in the Willamette than      they could well attend to. The American Board had three     stations in the upper country, and it was quite desirable for      them to have the Dalles also, as it was the key to that      entire region, and as an act of Christian regard and      confidence the transfer was thus made.'

'The amount which Dr. Whitman was to pay for the movable property was subsequently fixed at a fraction over $600. This     included a large canoe farming utensils, fanning-mill, some      wheat,' etc.

Payment of the $600 was made by a draft drawn by Dr. Whitman, dated in September, 1847, upon American Board. Mr. Roberts, the Rev. Alvin F. Waller, and Mr. Brewer-the latter two, up to the date of the transfer, having been in the occupancy of the mission left the station immediately after the transfer and went down the Columbia river. They carried off their movable property which had not been sold to Dr. Whitman. Dr. Whitman, to whom the station had been transferred, remained there a few days and then returned to his home at Wailatpu, distant about 140 miles. He left his nephew, Perrin B. Whitman, a youth 17 years of age, at the Dalles, in possession of the buildings which had been occupied by the Methodist missionaries. On November 29, 1847, Dr. Whitman was, with his family and a number of other persons, murdered by the Cayuse Indians at his home at Wailatpu. When news of this massacre reached Perrin B. Whitman, he abandoned the Dalles and went down the Columbia river, leaving no one in the occupancy of the station. After the transfer of the station by Roberts to Whitman in August, 1847, the record does not show that any missionary labors were ever performed at the Dalles, either by the Methodist society or the American Board, except two or three religious services held by Mr. Waller, in June, 1850, when he went to the Dalles to show Mr. Roberts the boundaries of the mission claim. After the month of August, 1847, no person representing the Methodist Missionary Society, and after December, 1847, no person representing the American Board, ever occupied the missionary station at the Dalles. The reason assigned by the appellant why the American Board abandoned the station and why possession of it was not resumed by the Methodist Society was the fear of Indian hostilities. It follows that on August 14, 1848, when the act to organize the territory of Oregon was passed, the station was not in the occupancy of any one representing either of the missionary societies.

About the last of February or the first of March, 1849, Messrs. Walker, Spaulding, and Eels, three missionaries of the American Board, delivered a writing to Mr. Roberts in which they 'offered for his acceptance the mission station at Wascopum, near the Grand Dalles of the Columbia river,' and proposed 'that it be retransferred to the Oregon Mission of the Methodist Episcopal Church in the same manner in which it was received by the Oregon Mission of the American Board of Commissioners for Foreign Missions.' The draft given to Mr. Roberts for the movable property at the Dalles, sold by him to Dr. Whitman in August, 1847, was delivered up, it having never been paid. The appellant did not resume missionary work at the Dalles after this attempt to retransfer, nor did it take possession of the premises. In June, 1850, Mr. Roberts returned to the Dalles for the purpose of making a survery of the 640 acres which he proposed to claim for the Missionary Society of the Methodist Episcopal Church under the act of 1848. He made a survey and had it recorded. On February 28, 1859, several years after the lands in controversy had been entered and paid for by Dalles City, the American Board delivered to the Missionary Society of the Methodist Episcopal Church a release of all their right and title to 'the property in the vicinity of the Dalles on the Columbia river, known as the 'mission property."

The question is presented whether, upon these facts, the appellant, the Missionary Society of the Methodist Episcopal Church, has shown a better title to the lands in controversy than that of Dalles City, the appellee. The title claimed by appellant is based entirely upon the first section of the act of August 14, 1848, before referred to. This was a public grant. In the case of Dubuque & P. R. Co. v. Litchfield, 23 How. 66, it was said by this court, speaking of a public grant of land: 'All grants of this description are strictly construed against the grantees. Nothing passes but what is conveyed in clear and explicit language.' See, also, Jackson v. Lamphire, 3 Pet. 289; Beaty v. Lessee of Knowler, 4 Pet. 165; Providence Bank v. Billings, Id. 514; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Leavenworth, ect., R. Co. v. U.S. 92 U.S. 733.

The act of August 14, 1848, confirms and establishes title to land occupied at the date of the act as missionary stations among the Indian tribes. The words are 'now occupied.' To occupy means to hold in possession; to hold or keep for use; as, to occupy an apartment. Webst. Dict. The appellant contends that this act confers title on it for lands which it did not occupy at the date of the act, but which it had voluntarily abandoned 11 months before, and the occupancy of which it never resumed, either for missionary or any other purposes. Not even a liberal construction would support such a claim. But the appellant, conceding that it was not in the actual occupancy of the premises, either as a missionary station or otherwise, at the date of the passage of the act, nevertheless insists that, being in actual occupancy in August, 1847, it transferred its rights therein to the American Board, on condition that the latter society should maintain a mission there for the benefit of the Indians, and that, as the American Board failed to maintain such a mission and abandoned the premises, the rights of the appellant reverted to it, and it, therefore, had a constructive possession when the act of August 14, 1848, was passed, which brought it within the meaning of the act. We do not think this contention can be sustained. In the first place, it cannot be fairly inferred from the testimony in the record that the transfer of the missionary station was a conditional one, and that it was any part of the contract that the rights of the appellant should revert to it if the condition were broken. It is plain that the transfer was absolute. Doubtless it was the expectation of the appellant that the transferee would conduct upon the premises a mission for the religious benefit of the Indians, and such, doubtless, was the purpose of the American Board. But it does not appear to have been any part of the contract that, if the American Board failed to carry on such a mission, the appellant should resume possession.

But, conceding that such was the understanding between the parties, there is still a fatal obstacle to any claim on the part of the appellant. When the appellant was in the occupancy of the premises in controversy, and when it made the transfer of possession in August, in controversy, and when it made the transfer of possession in August, 1847, and until the passage of the act of August 14, 1848, 'to establish the territorial government of Oregon,' that part of the country was without an organized territorial government under the laws of the United States. The public domain which was included within the territory of Oregon by the act just mentioned had not then been surveyed, nor was it open to settlement, pre-emption, or entry. Stark v. Starrs, 6 Wall. 402. The title was in the United States, subject to the possessory Indian title to portions of the territory, and there was no law by which any person or company could acquire title from the government. All persons, therefore, who settled upon the public lands acquired no rights thereby as against the government. They were merely tenants by sufferance. The most they could claim was the right of actual occupancy as against other settlers. Such an occupant could yield his right of actual possession to another settler. but he could convey no other interest in the land. If he abandoned the land and another settler occupied it, the former lost all right to the possession. If he transferred the possession to another and the transferee abandoned the land, the first possessor could claim no right in the land unless he again took actual possession. In short, the settler had no right as against the government, and no rights under the laws of the United States as against any one else to the possession of the land in his actual occupancy, except and only so long as such occupancy continued.

It is true that before the passage of the act of August 14, 1848, to organize a territorial government for Oregon, the people of that territory had, in June and July, 1845, met by their delegates in convention, and adopted laws and regulations for their government 'until such time,' as they declared, 'as the United States of America extend jurisdiction over us.' In this plan of government if was provided that any one wishing to establish a claim to land should designate the extent of his claim by line marks and have it recorded in the office of the territorial recorder. The appellant cannot derive any title from this regulation, for it never defined the extent of its claim by boundaries and never recorded the same, as required by the regulation, until long after the passage of the act of August 14, 1848, 'to organize a territorial government for Oregon.' That act in its fourteenth section declared as follows: 'All laws heretofore passed in said territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void.'

Referring to this act, this court declared in the case of Lownsdale v. Parrish, 21 How. 293, that congress passed no law in anywise affecting title to lands in Oregon till the passage of the act of September 27, 1850, and that prior to that date no one could acquire any title to or interest in the public lands in that territory. It follows that there could be no constructive possession of the public lands. When, therefore, in August, 1847, the appellant voluntary abandoned its possession of the lands in controversy to another missionary society it lost every shadow of claim thereto. Its right was a mere possessory right, without other title. It had no rights which it could reserve. When the American Board, in December, 1847, abandoned the lands in controversy the appellant had no rights therein. The reasons which induced the abandonment of the lands by the missionary societies whether a new policy on the part of the appellant, or fear of the Indians on the part of the American Board-are entirely immaterial. When the lands were abandoned for any reason all right in them was lost, and they were open to the occupancy of any one who might choose to take and hold them. The method adopted by the appellant to turn over the station to the American Board by an actual transfer of possession was as effectual as any could be. It could be done only by yielding the actual occupancy, and this could not be effected by a written transfer. It could be accomplished only by the going out of one party and the going in of the other. If the appellant had, in August, 1847, executed the most formal deed, conveying the lands to the American board, and had stipulated therein that on failure of the latter to maintain a mission thereon for the benefit of the Indians, or upon its abandonment of the lands, all the rights of appellant should revert to it, and it should be entitled to resume immediate possession, such a writing would have been inoperative and futile. The appellant had no rights in the land which it could convey, and no rights which it could reserve.

These views are supported by the case of Stringfellow v. Cain, 99 U.S. 610, brought up from the territory of Utah. The act of March 2, 1867, 'for the relief of inhabitants of cities and towns upon the public lands,' (14 St. 541,) provided that whenever any portion of the public lands of the United States had been settled upon as a townsite, and were for that reason not subject to entry, it should be lawful for the authorities of the town to enter the lands as settled upon in trust for the several use and benefit of the occupants thereof, the execution of which trust was to be conducted under such rules as the legislature of the state or territory might prescribe. Under this act, it was held in the case cited that where a party had been in the occupancy of a lot, but prior to the passage of the act voluntarily withdrew therefrom and gave it up to others, her rights, which depended on keeping the possession, were gone.

The appellant contends that the language of the first section of the act of August 14, 1848, under which it claims, implies that it had some title to the lands in question before the act was passed. It places stress on the words 'that the title to the lands be confirmed and established in the several religious societies to which said missionary stations respectively belong,' and says there must have been some previous title which could be confirmed and established.

We have seen that it was not possible to acquire any title as against the United States before the passage of this act. If, therefore, the force is to be given to the words of the statute which the appellant claims for them, they must refer to the possessory title under the regulations above mentioned of the provisional government. But no steps, as we have seen, were taken by appellant to establish its claim under those regulations. It had simply settled upon the public domain as a tenant by sufferance, without authority of any law or regulation of any government, and had done no act by which it could acquire any claim of title. Whatever, therefore, may have been the case with other missionary societies, the appellant had no title of any kind which could be confirmed and established by the act of August 14, 1848. The American Board was in no better position.

Neither of the societies acquired any title under the act of 1848. The writing executed in 1849 by Messrs. Walker, Spaulding, and Eels, and the release made by the American Board to the appellant in 1859, after Dalles City had entered and paid for the land, and the patent of the United States in 1875, which was a mere release, conveyed no rights to the appellant in the lands in controversy.

The decree of the circuit court was, therefore, right, and must be affirmed.


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 for the year, and on reaching Surat on 18 Sept. and learning that the Portuguese were preparing ‘great forces’ against the English and Dutch in the Gulf of Persia, he was sent at once to Gombroon to join with the Dutch squadron against the common enemy. When the Portuguese fleet came in sight the English and the Dutch commanders consulted, went out to meet it, and after a hard-fought action, which lasted through three days, put the Portuguese to flight, and chased them well on their way to Goa. The affair is curious, for the ‘conspiracy’ or the ‘massacre’ of Amboyna [see, d. 1623] must have been fresh in the minds of both Weddell and his ally; notwithstanding which, they seem to have acted together with perfect loyalty and good faith.

In 1626 Weddell returned to England, and, attending a court meeting on 18 Dec., was told that the company was going ‘to commence a suit against him’ for irregular or illegal private trading. He hoped that ‘upon consideration of his services they would think he deserved better.’ Afterwards, 16 Feb. 1627, he ‘submitted to their censure,’ but ‘desired them to look at his good services.’ It seems probable that he conceived that his victory over the Portuguese gave him a right to break the very strict regulations which the company found necessary, and that this difference of opinion ultimately led to a bitter quarrel. At the time it was quietly arranged, the more easily, perhaps, as Weddell offered his services to the crown to command a ship of war, and took with him ‘divers prime and able men.’ During 1627 and 1628 he commanded the king's ship Rainbow; in May he was sent with a small squadron to Havre for information; afterwards, he seems to have been with Buckingham at Ré. In December he was at Plymouth, in Catwater, where the Rainbow got on shore, and Weddell was highly praised for his diligence in getting her afloat again (Cal. State Papers, Dom. 1627–8, pp. 517, 531). On 28 Jan. 1628 Buckingham wrote to him, giving him leave to come to town. ‘On his arrival he is to let the duke see him with the first, for he longs to present him to his majesty.’ There is no account of his being presented; but Weddell, with a keen eye to business, wrote on 21 Feb. hoping that he might be paid for his late services as a vice-admiral.

By December 1628 he had returned to the service of the company, and on the 3rd was appointed to command the Charles, with the pay of 16l. 13s. 4d. a month. It is thus not to be wondered at that on his return in April 1631 he was again censured for his private trading; and, though he submitted himself to the court, ‘he alleged his good service, and in particular that last year he had saved them at least 2,000l. at Gombroon by keeping a guard on shore to prevent the stealing of goods by the Moors and Persians’ (Cal. State Papers, East Indies, 20 April). A few days later he reported that he had brought home a leopard and a cage of birds, which he desired leave to present to the king and queen in his own name. The company thought it more fit to present them as from themselves. In 1632 Weddell went out again in the Charles, which, by the culpable carelessness of the master of the Swallow, was burnt at Surat, about 20 Jan. 1632–3 (ib. 4 Oct. 1633). The master of the Swallow was sent home in irons, and Weddell, in reporting the circumstance, begged that ‘having lost his whole estate by the firing of the Charles, the court would renew his commission and give him another ship’ (ib. 11 Sept. 1633). The court refused to do this, and sent out orders for him to return in the Jonas.

The company's agents in India took a different view of the matter, and on 21 April 1634 the president and council of Surat gave Weddell a commission as admiral of the company's fleet. This was before they had received the refusal of the court to give him another ship; and on 29 Dec. 1634, when the Jonas was on the point of sailing, they wrote, regretting that the court had not granted Weddell's request. ‘He is,’ they said, ‘a gentleman of valour and resolution, and submits to no man that the company ever employed in the care of his charge, especially at sea; but his tractability so far exceeds that of many of those churlish commanders who conceive themselves only created for the sole good of the fleets they command, that they desire no better or other man to con the fleet.’ Of Weddell's appearance before the court we have no account, but it is evident that he went home feeling that he was aggrieved by the company. It is possible also that the company were disposed to blame him for the loss of the Charles, even though he was not on board at the time. And just at the time of his arrival Sir William Courten [q. v.] was pushing his endeavour to establish a separate trade to the East Indies, and Charles I, always in want of money, had no scruple about giving him a license to do this. For a man in the position of Courten, Weddell and his grievances were valuable aids, and he had no difficulty in persuading Weddell to throw over the company and to take service with him. The grant to Courten was


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Missionary Society of Church v. Kelly Same/Opinion of the Court

These cases were in all respects similar to the case of Missionary ''Soc. M. E. Church v. Dalles City, ante'', 672, except that the appellees claimed under a title different from that relied on by Dalles City. So far as the title of the appellant is concerned, they were tried upon the same evidence as Missionary Soc. v. Dalles City, supra. It follows that if the appellees in these cases show an equitable title in themselves, the decree should be affirmed. This they have done. They all claim title under one Winsor D. Bigelow. The title of Bigelow was derived under the act of congress of September 27, 1850, (9 St. 496,) commonly called the donation act. This act gave, upon certain conditions, to every white settler upon the public lands, above the age of 18 years, and being a citizen of the United States, a half sectio of land, if he were a single man, and a whole section, if he were a married man. The record clearly shows a full compliance by Bigelow with the law, and establishes his right to the lands in controversy, which he afterwards conveyed to the appellees in these cases. The decree of the circuit court in these cases, which was similar to the decree in Missionary Soc. v. Dalles City, supra, was therefore right, and should be affirmed; and it is so ordered.


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Chapman v. Board of County Comissioners of the County of Douglas

This is a bill in equity filed in the circuit court on September 10, 1877, the appellant Chapman, a citizen of Tennessee, joining as complainant for their benefit with the other appellants, being the representatives of Charles A. Ely, deceased, and citizens of Ohio, the appellee being a municipal corporation of Nebraska.

The object of the bill is declared to be, and the prayer corresponds to it, to compel the county of Douglas to surrender possession of two certain tracts of land therein described, one of 160 acres and one of 10 acres; and to reconvey and release the title thereto, which the county acquired under a deed made by Chapman to the county on March 5, 1859; and for an account of the rents and profits thereof; or, 'in case said county of Douglas and the corporate authorities thereof shall elect and request to be allowed to retain and hold the land described, then and in that case to compel said county and the corporate authorities thereof to pay to or for your orators, as the court shall direct, the reasonable price and value of said land, as stated in said deed of conveyance, with lawful interest thereon from the date of said deed to the time of the making of such payment.'

It appears that on March 4, 1859, an agreement in writing and under seal was entered into between Chapman and the county of Douglas, the latter acting by the county commissioners, whereby Chapman agreed to sell and convey the premises in controversy 'on the following conditions, to-wit; That the party of the second part shall pay to the party of the first part, at the ensealing and delivery of a warranty conveyance from the party of the first part to the party of the second part of the real estate aforesaid, two thousand (2,000) dollars in county orders of the county of Douglas aforesaid on the treasurer of said county of Douglas, and the balance of six thousand (6,000) dollars in four equal annual payments, together with interest on the amount due at ten (10) per cent. per annum until paid; and the said party of the first part will, when required, resign to and give up the possession of said property to the party of the second part, or its assigns or agents, immediately on the payment of the first payment hereinbefore enumerated, and put the said county of Douglas or its agents in full and peaceable possession of said described property. And the said party of the second part agrees to purchase said property on the terms aforesaid of the from the party of the first part, and for the security of the deferred payments, as hereinbefore set forth, to give a mortgage upon said described property to the party of the first part.'

On the next day, March 5, 1859, in pursuance of this agreement, Chapman and wife executed and delivered to the county commissioners a deed to the county of Douglas for the land, which was accepted and placed by them on record. The first installment of the purchase money, $2,000 in county orders, was paid at that time, when, also, the county commissioners, in the name of the county, executed and deliverea to Chapman the four promissory notes required by the agreement, payable in one, two, three, and four years from that date, respectively, and a mortgage, in the usual form of a conveyance in fee, with a defeasance to secure the payment of the same, which was accepted and recorded.

The property was purchased for the use of the county for a poorhouse and farm. Possession of it was taken immediately by the county authorities, and it has been improved and used for that purpose continuously ever since. The title of Chapman as to to the 160-acre tract was perfect, but as to the 10-acre tract has failed.

On November 26, 1860, the notes and mortgage were assigned, for value, to Charles A. Ely, who having since deceased, his rights have devolved upon his legal representatives. On June 13, 1868, William A. Ely, a minor and the devisee of Charles A. Ely, by his next friend and guardian, commenced a suit in the district court for Douglas county for the foreclosure of the mortgage, to which a demurrer was interposed, on the ground that the notes and mortgage were void, ab initio, for want of power on the part of the county to make them, and also because any action on them was barred by the statute of limitations. This demurrer having been sustained, the plaintiff dismissed the action on July 21, 1868, without prejudice. On August 8, 1868, a similar suit, by bill in equity, was begun in the circuit court of the United States, which, on November 19th, in the same year, was dismissed without prejudice; and on March 15, 1869, a similar bill was filed in the same court, to which the same defenses, as above stated, were raised upon a demurrer, which was sustained, and subsequently, on December 30, 1872, the bill was dismissed without prejudice.

The answer to the present bill admits that no part of the $5,000 of the original purchase money has been paid, and that the rents, issues, and profits of the premises, since the county has been in possession of them, exceed the amount of the first installment which was paid, and sets up the same defenses as before, that the mortgage and notes are void for want of power on the part of the county to make them, and that any action accruing to the complainants is barred by lapse of time and the statutes of limitation. It also admits 'that both the said commissioners and the said Chapman believed that the said county had full power and authority to purchase said lands and execute the said notes and mortgage for the unpaid part of the purchase price, and that all the actings and doings of the said parties in that behalf were had, made, and done in perfect good faith, and for good and sufficient considerations, in all things conformable to equity and good conscience, save as hereinafter stated.' This saving is that 'the sum paid by this defendant for said lands, to-wit, $2,000, was the full, fair value thereof at the time of the said purchase and sale, and the amount of the said notes and mortgage was just so much in excess of the true value thereof. This defendant is informed and believes, and now here charges, that the said notes and mortgage were made between the said Chapman and the said commissioners, acting in the name of said county, with the full knowledge on the part of all of them that the full and fair value of the premises had been already paid therefor by the said county, and that the agreement to give the said notes and mortgage was unjust and oppressive towards the said county, and that, in fact, they were without consideration, and that the giving thereof was induced by some secret and fraudulent agreement or understanding between the said commissioners, or some of them, on the one side, and the said Chapman on the other.' It also admits that during the delay of the complainants in bringing their suit, 'the evidences of the fraudulent, corrupt, oppressive, and unjust contract of purchase have disappeared.' No evidence in support of the alleged fraud is therefore offered, and the defendant is constrained to rely upon the statutes of limitation, if any cause of action ever existed. In reference to the allegation of the oppressive amount of the price agreed to be paid, in addition to the fact admitted in the answer that the rents and profits accrued to the county since it has been in possession amounted in value to more than the payment made, it is also urged in argument by its counsel, against a rescission of the contract, that 'there has been such a change of circumstances that that mode of relief would be most oppressive. This land, purchased when the county was very sparsely settled, and situated very near to a town which has recently grown to great importance, must have greatly appreciated in value. Besides which fact there is the further one already adverted to, that the county has improved it to the extent of $30,000.' It is, therefore, insisted that the county should be permitted to retain the land without paying for it.

On final hearing the bill was dismissed, and the decree to that effect is brought here for review by this appeal.

C. C. Bonney and ''Geo. Willey'', for appellants.

J. M. Woolworth and J. C. Cowin, for appellees.

MATTHEWS, J.


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Chapman v. Board of County Comissioners of the County of Douglas/Opinion of the Court

The statute of Nebraska, in force at the date of the transaction in question, conferring power on the county commissioners over the subject, (Rev. St. Neb. c. 40,) provided, section 17, 'that the county commissioners in each county are authorized, whenever they see fit to do so, to establish a poor-house;' and in the next section, that 'they may take to the county, by grant, devise, or purchase, any tract of land, not exceeding 640 acres, for the purpose of said poor-house.' Section 19 of the same chapter declares that 'said commissioners are hereby empowered to receive donations to aid in the establishment of such poor-house; and also empowered, from time to time, as they shall see fit, to levy and collect a tax, not exceeding 1 per cent., on the taxable property in the county, and to appropriate the same to the purchase of land not exceeding the aforesaid 640 acres; and to erect and furnish buildings suitable for a poor-house, and to put into operation and to defray the actual expenses of said poor-house, should the labor of the inmates be inadequate thereto. By section 23 of the same act, the commissioners are authorized, if they deem it to be for the interest of the county, to appropriate out of any other money belonging to the county any sum not exceeding $2,500, for the purpose of purchasing a farm and erecting thereon suitable buildings, as contemplated in the sections before referred to.

These provisions of the statute were construed by the supreme court of Nebraska in the case of Stewart v. Otoe Co. 2 Neb. 177. It does not appear from the report when this decision was made, but as the case arose upon a contract dated in January, 1870, it must, of course, have been long after the making of the contract which is the foundation of the present litigation. The decision of the supreme court of Nebraska referred to was rendered in an action brought upon a contract, similar in its character to the one between Chapman and Douglas county, to recover against Otoe county damages for its refusal to accept a deed and execute the note and mortgage contemplated. A judgment against the plaintiff sustaining a general demurrer to the petition was affirmed, on the ground that the contract was illegal and void. The court said:

'There is no authority of law for the county commissioners to     bind the county in the manner contemplated. They cannot give     a promissory note, nor can they mortgage the property of the      county. Should they formally do so, their action would be a     nullity. In the purchase of land for a poor-farm, the     authority of the commissioners of a county is very clearly      set forth. The mode of raising the money, and paying it over,     are all definitely stated. These statutes set a limit, beyond     which they cannot go. They are a guide, not only to the     commissioners, but equally so to all persons dealing with      them, who must see to it that their contracts are within the      boundaries thus described. * *  * Here we find the authority,      and indeed the only authority, for the purchase and payment      of money for a 'poor-farm' by the county commissioners; and      here, too, is specially designated the money that may be used      for that purpose, together with the mode of raising it. But     there is not one word about mortgaging the property of the      county to secure the payment of the purchase money at a given      time. The statutes provide the only security that can be     given. The public faith is pledged; and a tax, not exceeding     1 per cent., may be levied upon all the taxable property of      the county annually, and, when collected, paid to the person      entitled thereto by an order upon the treasurer of the      county, payable out of that special fund.'

The doctrine of this decision has been accepted by all parties to this suit, and we are not asked to consider any question as to its correctness, or as to our obligation to adopt it. We, therefore, assume it to be the law of Nebraska, applicable to the case, and the basis of further inquiry as to the relative rights of the parties to this litigation.

It is expressly declared by the supreme court of Nebraska, in this case, that it is clear that the county commissioners had power to purchase a poor-farm. The point of the decision is that this power does not extend to an agreement to pay as a definite time, or to give as security for payment a lien upon the land. The vendor must either receive the purchase money on delivery of the deed, or wait for its payment in the due course of administration, by the appropriation of the taxes levied, collected, and paid into the treasury applicable to that purpose.

If, in the present case, such had been the original understanding between the parties, and the deed had been delivered without payment, but upon orders drawn upon the county treasurer payable according to law, the vendor woudl have been obliged to wait during the reasonable delays of administration.

'Whoever,' said the supreme court of Nebraska, in Brewer v.     Otoe Co. 1 Neb. 373, 'deals with a county and takes in      payment of his demand a warrant of the character of these, no      time of payment being fixed, does so under an implied      agreement that if there be no funds in the treasury out of      which it can be satisfied, he will wait until the money can      be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition,     and the laws regulating and controlling the business of the      country. He cannot be permitted, immediately upon the receipt     of such warrant, to resort to the courts to enforce payment      by judgment and execution, without regard to the condition of      the treasury at the time, or the laws by which the revenues      are raised and disbursed.'

Accordingly, in that case it was decided that the statute of limitations did not apply to cases of such claims against counties. The court, on that point, said:

'But these warrants do not, nor was it the intention of the     legislature that they should, fall within the operation of      this act. * *  * Nor can any action be brought on such warrant      until the fund is raised, or at least sufficient time has      elapsed to enable the county to levy and collect it in the      mode prescribed in the revenue laws. That the legislature     never intended that county warrants should be affected by the      limitation act before referred to, is evident, I think, from      the whole course of legislation respecting them. As late as     the twelfth of February, 1866, it was enacted that 'all debts      heretofore incurred by the county commissioners of any      county, acting in good faith, and duly recorded at the time      on their books, shall be deemed valid and the county shall be      held liable for the same.' Chapter 5, § 1, Rev. St. *  *  *      From these, as well as numerous other enactments of the legislature that might be cited, I have reached the      conclusion that the plea of the statute of limitations cannot      be successfully made against these warrants, and that      whenever it can be shown that the funds have been collected      out of which they can be paid, or sufficient time has been      given to do so in the mode pointed out in the statute, their      payment may be demanded, and, if refused, legally coerced.'

And if, in such cases, a proceeding in mandamus should be considered to be the more appropriate, and, perhaps, the only effective, remedy, it also is not embraced in the statute of limitations prescribed generally for civil actions. The writ may well be refused when the relator has slept upon his rights for an unreasonable time, and especially if the delay has been prejudicial to the defendant, or to the rights of other persons, though what laches, in the assertion of a clear legal right, would be sufficient to justify a refusal of a remedy by mandamus must depend, in a great measure, on the character and circumstances of the particular case. Chinn v. Trustees, 32 Ohio St. 236; Moses, Mandamus, 190. There is no statute of limitations in Nebraska applicable to that proceeding.

In the present case, however, it was not the understanding of the parties that the vendor should await the collection of taxes, as prescribed by the statute, for the payment of the purchase money, but, on the contrary, there was an agreement for payment in a definite time, without regard to the condition of the county treasury, and for security by way of notes and mortgages. The agreements, as we have assumed, so far as it relates to the time and mode of payment, is void; but the contract for the saie itself has been executed on the part of the vendor by the delivery of the deed, and his title at law has actually passed to the county. As the agreement between the parties has failed by reason of the legal disability of the county to perform its part, according to its conditions, the right of the vendor to rescind the contract and to a restitution of his title would seem to be as clear as it would be just, unless some valid reason to the contrary can be shown. As was said by this court in Marsh v. Fulton Co. 10 Wall. 676, 684, and repeated in Louisiana v. Wood, 102 U.S. 294, 299, 'the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.' And see, also, Miltenberger v. Cooke, 18 Wall. 421. The illegality in the contract related, not to its substance, but only to a specific mode of performance, and does not bring it within that class mentioned by Mr. Justice BRADLEY in Thomas v. Richmond, 12 Wall. 349, 356. The purchase itself, as we have seen, was expressly authorized. The agreement for definite times of payment and for security alone was not authorized. It was not illegal in the sense of being prohibited as an offense; the power in that form was simply withheld. The policy of the law extends no further than merely to defeat what it does not permit, and imposes upon the parties no penalty. It thus falls within the rule, as stated by Mr. Pollock, in his Principles of Contract, 264:

'When no penalty is imposed, and the intention of the     legislature appears to be simply that the agreement is not to      be enforced, then neither the agreement itself nor the      performance of it is to be treated as unlawful for any other      purpose.' Johnson v. Meeker, 1 Wis. 436.

The principle was applied in the case of Morville v. American Tract Society, 123 Mass. 129, 137, where it was said:

'The money of the plaintiff was taken and is still held by     the defendant under an agreement which, it is contended, it      had no power to make, and which, if it had power to make, it      has wholly failed on its part to perform. It was money of the     plaintiff, now in possession of the defendant, which in      equity and good conscience it ought now to pay over, and      which may be recovered back in an action for money had and      received. The illegality is not that which arises where the     contract is in violation of public policy or of sound morals,      and under which the law will give no aid to either party. The     plaintiff himself is chargeable with no illegal act, and the      corporation is the only one at fault in exceeding its      corporate powers by making the express contract. The     plaintiff is not seeking to enforce that contract, but only      to recover his own money and prevent the defendant from      unjustly retaining the benefit of its own illegal act. He is     doing nothing which must be regarded as a necessary      affirmance of an illegal act.' The decision of this court in Hitchcock v. Galveston, 96 U.S. 341, 351, covers the very point. There a recovery was allowed for the value of the benefit conferred upon the municipal corporation, notwithstanding, and, indeed, for the reason, that the contract to pay in bonds was held to be illegal and void. 'It matters not,' said the court, 'that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds, because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law.'

This doctrine was full recognized by the supreme court of Nebraska as the law of that state in the case of Clark v. Saline Co. 9 Neb. 516, in which it adopts, from the decision of the supreme court of California in Pimental v. City of San Francisco, 21 Cal. 362, the following language:

'The city is not exempted from the common obligation to do     justice which binds individuals. Such obligations rest upon     all persons, whether natural or artificial. If the city     obtains the money of another by mistake or without authority      of law, it is her duty to refund it, from this general      obligation. It she obtain other property which does not     belong to her, it is her duty to restore it, or, if used, to      render an equivalent therefor, from the like obligation. Argenti v. San Francisco, 16 Cal. 282. The legal liability     springs from the moral duty to make restitution.'

The conveyance by Chapman to the county of Douglas passed the legal title, but upon a condition in the contract which it was impossible in law for the county to perform. There resulted, therefore, to the grantor the right to rescind the agreement upon which the deed was made, and thus to convert the county into a trustee, by construction of law, of the title for his benefit, according to the often-repeated rule, as stated by Hill, Trustees, 144, that 'whenever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest, without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment.' Upon this principle the vendor of real estate is treated as trustee of the title for the purchaser; and the mortgagee, having the legal title, after payment of the mortgage debt, is a trustee for the mortgagor. The analogy is complete between these, and every case, of which the present is one, where the holder of the legal title is under a duty to convey to another.

But, admitting that Chapman was entitled to call for a reconveyance, it is alleged that the statute of limitations of Nebraska, which bars the right to recover the title to real estate in 10 years from the time it first accrued, defeats the recovery.

The statute of limitations in force March 5, 1859, which was the date of the deed, prescribed 21 years, after the cause of action shall have accrued, as the period within which an action for the recovery of the title to lands must be brought. Rev. St. Neb. 1866, p. 395, § 6.

On February 12, 1869, the legislature of Nebraska passed an act, which took effect July 1, 1869, which amended this section so as to reduce the limitation to 10 years. It is not denied that if Chapman's cause of action first accrued to him on March 5, 1859, this amendment could not operate upon it, because to give it that effect would be to take away an existing right of action by mere legislation, as the 10 years would then have fully expired. It is, therefore, claimed that his right of action for a reconveyance of the title could only have first accrued when the first installment of the purchase money became due,-that is, on March 5, 1860,-which left eight months after the statute took effect before the 10-years' limitation would expire, which, it is claimed, would be a reasonable time within which to require that suits upon existing causes of action should be brought. But this view cannot be supported; for the original contract for payment, at a fixed time, is rendered invalid, for the same reason that avoided the notes and mortgage, the objection being, according to the decision of the supreme court of Nebraska, that the county had no power to bind itself to pay in any other manner than that prescribed by the statute. Hence, it must be held, in this aspect of the case, that the right of action was not postponed, after the date of the deed, by the credit given, and if it accrued at that time the limitation was 21 years, according to the statute then in force, within which the present suit was in fact brought.

But the more satisfactory answer to this defense is that none of the statutes of limitation referred to apply to the case at all. We have already seen that by the decision in the case of Brewer v. Otoe Co. 1 Neb. 373, it is the declared law of Nebraska that the claim against the county for the purchase money, on the supposition that the understanding had been to accept payment according to the terms of the statute, was not liable to the bar of the limitation acts. So that the obligation of the county to pay would not be extinguished by the statutory lapse of time. Now, although the right of Chapman to rescind the contract and demand a reconveyance accrued at the very date of the deed, he was not bound to exercise the right, and his cause of action did not accrue until he had made manifest his election. He had the right to treat as null that part of the contract which was illegal, and, having executed it on his part, to waive performance according to its terms, on the part of the county, and wait a reasonable length of time for the county to make the payment in the mode made lawful by the statute, before exerting his power to rescind the contract. Until that time had elapsed, and until, after that, Chapman had elected to rescind, there was no existing cause of action, and consequently nothing upon which the statute of limitations could begin to take effect. When that reasonable time expired we have no means of determining. It would depend upon circumstances not disclosed in the record, such as the state of the county treasury, the extent of its other obligations, the value of the taxable property, and its general financial condition. There is nothing whatever to show that the delay that has taken place in filing the present bill has been unreasonable. It is impossible, therefore, to say that any statute of limitations has even begun to run against the cause of action, much less that its bar has become complete.

There is nothing, therefore, to prevent the relief prayed for being granted, if it can be done without injustice to the defendant. On this point, it is said, it would be inequitable to decree a rescission of the contract and a restoration of the title to and possession of the property, because the parties cannot be placed In statu quo; that the circumstances have greatly changed by the increase in the value of the property and the expensive improvements that have been put upon it by the county. If the relief asked and expected was an unconditional reconveyance of the title and surrender of possession, this would undoubtedly be true. But such is not the case. Any such injurious and inequitable results as are deprecated may easily be averted by the simple payment of the amount due on account of the purchase money, which the appellants consent to receive, which is within the statutory powers of the county, and for which proper provisions may be made in the decree.

The principles on which we proceed to establish the right of the appellants to the relief prayed for were announced and acted upon by this court in the case of City of Parkersburg v. Brown, 1 SUP. CT. REP. 442, in which it was also held that the equity of the original grantor of the property sought to be reclaimed, passed by an assignment of the void securities. This settles the relative rights of Chapman and his co-complainants, the representatives of Ely, and entitles the latter, in the name of the former, to the relief prayed for in the bill.

And conversely, the right of the county, represented by its taxpayers, to require a rescission of such a contract, on condition of a surrender of the void securities on the part of the vendor, and a reconveyance of the title in consideration of which they were issued, was recognized by this court in the case of Champton v. Zabriskie, 101 U.S. 601.

In not granting this relief the circuit court erred, and its decree must be reversed, with directions to ascertain the amount due from the county of Douglas on account of the purchase money of the poorfarm, making any proper allowance as a compensation for the failure of the title to the 10-acre tract, and thereupon to render a decree, unless the amount so found due be paid within a reasonable time, to be fixed by the court, having reference to the necessity of raising the same by taxation, as regulated by the statute; that the county of Douglas be required by its commissioners to execute and deliver a deed, releasing to Chapman all the title acquired by it by virtue of the deed from him of March 5, 1859, to be conveyed by Chapman to William A. Ely, his co-complainant, and sole representative of Charles A. Ely, upon such terms as the equities of the case may require. It is accordingly so ordered.


text: Talk:Chapman v. Board of County Comissioners of the County of Douglas/Opinion of the Court


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Jaffray v. McGehee

The statutes of Arkansas contain the following provisions:

'Sec. 385. In all cases in which any person shall make an assignment of any property, whether real, personal, or choses in action, for the payment of debts, before the assignee thereof shall be entitled to take possession, sell, or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising probate jurisdiction, a full and complete inventory and description of such property, and also make and execute a bond to the state of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the judge of said court, conditioned that such assignee shall execute the trust confided to him, sell the property to the best advantage, and pay the proceeds thereof to the creditors mentioned in said assignment, according to the terms thereof, and faithfully perform the duties according to law.

'Sec. 387. Said assignee shall be required to sell all the property assigned to him for the payment of debt, at public auction, within 120 days after the execution of the bond required by this act, and shall give at least 30 days' notice of the time and place of such sale. And any person damaged by the neglect, waste, or improper conduct of such assignee, shall be entitled to bring his action on the bond in the name of the state for the use and benefit of such person.' Gantt, Dig. 207, 208.

While these sections were in force, to-wit, on December 19, 1878, James C. Moss and John S. Bell, partners under the name of Moss & Bell, doing business as merchants at Pine Bluff, Arkansas, conveyed, by an assignment in writing, all their goods, wares, and merchandise, and choses in action, to the defendant James M. Hudson, as trustee in trust for the payment of their debts. The deed of assignment preferred certain creditors, who afterwards became the complainants in this suit, and required the trustee to pay them in full, if the proceeds of the property assigned should be sufficient for that purpose, and if there should be any surplus to pay it share and share alike to other creditors. The powers conferred on the trustee were as follows:

'To sell and dispose of all of said property for cash, as he should deem advisable and right, and to this end to use his own discretion, subject to the supervision of the creditors, * * * and to conduct and transact all of the business as he may deem proper in the exercise of a sound discretion, and as he shall deem most advisable for the benefit of creditors and their trust; and he shall have power to appoint such assistants, agents, and attorneys as in his judgment may be necessary to enable him to fulfill this trust,' etc.

Hudson accepted the trust, and on December 21, 1878, gave bond according to law, and filed in the office of the clerk of the probate court an inventory of the property conveyed to him by the deed of assignment.

On December 21, 1878, the defendants McGehee, Snowden & Violett recovered against Moss & Bell, in the United States circuit court for the eastern district of Arkansas, a judgment for $10,992, on which execution was issued on January 12, 1879, and the same came into the hands of the marshal of the district on that day. The marshal levied the execution on the goods and chattels assigned by Bell & Moss to Hudson, and took them into his possession, and was about to advertise and sell the same to satisfy the execution, when the bill in this case was filed by the complainants, who were the preferred creditors named in the assignment. The bill recited the foregoing facts and prayed an injunction against the marshal and McGehee, Snowden & Violett, forbidding them to interfere with the property assigned to Hudson, and that they might be decreed to return the same to him, etc.

The defendants demurred to the bill for want of equity. The circuit court sustained the demurrer on the ground that the deed of assignment was void on its face, and dismissed the bill. The purpose of this appeal is to reverse that decree.

Sol F. Clark and S. W. Williams, for appellant.

U. M. Rose, for appellee.

WOODS, J.

title: Jaffray v. McGehee


text: Talk:Jaffray v. McGehee

title: Talk:Jaffray v. McGehee


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Jaffray v. McGehee/Opinion of the Court

The statute of Arkansas provides that the property assigned for the benefit of creditors shall be sold at public auction within 120 days after the execution of the bond required of the assignee.

The deed of assignment in effect authorized the assignee to sell at private sale, and at such time and in such manner as he should deem advisable and right. Under this power he could wait an indefinite time, and then sell the property at wholesale, or he could carry on the business of selling off the stock of goods in the ordinary way of retail merchants, and without any limit of time within which the sale should be completed. The powers conferred by the deed of assignment were, therefore, in direct opposition to the policy of the statute. It is true, the powers conferred on the trustee were subject to the supervision of the creditors. But this could only mean a majority of the creditors. The assignee was, therefore, authorized by the assignment to dispose of the property assigned in a manner different from that pointed out by the statute, and in disregard of the wishes and remonstrances of a minority of the creditors. The question presented is, therefore, this: Is an assignment for the benefit of creditors, which authorizes the assignee to violate the provisions of the statute regulating such assignments, valid and binding on the creditors of the assignor?

The contention of the appellant is that the assignment is valid, (1) because the discretion given the assignee by the assignment leaves him at liberty to follow the law; and (2) because, even if the assignment required him to administer the trust in a manner different from that prescribed by the law, only such directions as conflicted with the law would be void, and the assignment itself would remain valid.

We think that under the construction given the assignment law by the supreme court of Arkansas, in the case of Raleigh v. Griffith, 37 Ark. 153, these positions cannot be maintained. The assignment in that case provided as follows:

'The party of the second part [the assignee] shall take     possession of all and singular the property and effects      hereby assigned, and sell and dispose of the same, either at      public or private sale, to such person or persons, for such      prices, and on such terms and conditions, either for cash or      upon credit, as, in his judgment, may appear best and most      for the interest of the parties on cerned, and convert the      same into money.'

It will be observed that the terms of the assignment did not prevent the assignee, in the administration of his trust, from following the directions of the statute in all particulars. He was at liberty to sell for cash at public auction, and within 120 days after the filing of his bond. But the assignment vested him with a discretion to do otherwise. The court declared the assignment to be void. It said:

'In providing for the sale of the property, the statute is     disregarded in the deed of assignment; the assignee was      authorized to sell at private or public sale, and for cash or      credit. Under such provision it was in the power and     discretion of the assignee to prolong the execution and      closing of the trust for an indefinite period. The     legislature deemed it expedient, as a matter of public      policy, to require assignees, in general deeds of assignment      for the benefit of creditors, to sell all property assigned      to them, for the payment of debts, at public auction, within      125 days after the execution of the bond, on 30 days' notice      of the time and place of sale.' And the court declared: 'The      statute prescribes a mode of sale in this state, and      dissenting creditors are not barred by a deed made in direct      contravention of a plain provision of the statute.'

The effect of this decision is that the provisions of the statute respecting the sale of property assigned for the benefit of creditors are mandatory and not directory, (see, also, French v. Edwards, 13 Wall. 506,) and there are no conflicting decisions of the supreme court of Arkansas. This being the construction put upon the law by the supreme court of the state when the assignment in this case was made, it is binding on the courts of the United States. Brashear v. West, 7 Pet. 608; Sumner v. Hicks, 2 Black, 532; Leffingwell v. Warren, Id. 599. It follows that the assignment, which vests the assignee with a discretion contrary to the mandates of the statute, and in effect authorizes him to sell the property conveyed thereby in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms of policy of a statute will not be sanctioned. Peck v. Barr, 10 N. Y. 294; McGregor v. S. E. R. Co. 18 Q. B. 615; Jackson v. Davison, 4 Barn. & Ald. 695; Miller v. Post, 1 Allen, 434; Parton v. Hervey, 1 Gray, 119; Hathaway v. Moran, 44 Me. 67.

The result of these views is that the decree of the circuit court dismissing the bill, because the assignment in question was void on its face, was right, and must be affirmed.

title: Jaffray v. McGehee/Opinion of the Court


text: Talk:Jaffray v. McGehee/Opinion of the Court


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