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The Cayuga (83 U.S. 177)/Opinion of the Court

Damages are claimed in this case by the owners of the canal-boat Floating Battery, against the steamboat Cayuga, in a cause of tort civil and maritime, for the loss of the canalboat and her cargo, consisting of two hundred and twenty-five tons of moulding sand, which the libellants had engaged to transport from the port of Albany and to deliver in the city of New York to certain consignees.

Employed as the steamboat was in towing boats and barges between those ports, the owners of the canal-boat, on the twenty-fifth of May, 1867, applied to the agent of the steamboat to take the canal-boat in tow, and he undertook and contracted to tow the canal-boat, as requested, to her port of destination; and it is alleged that the steamboat, in the evening of that day, took the canal-boat, with other boats and barges, in tow, and proceeded down the river in execution of the contract. Besides the canal-boat of the libellants the steamboat had twenty-nine other canal-boats in tow, and two barges, the canal-boats being arranged in six tiers of five boats each, the canal-boat of the libellants being the starboard boat of the hindmost tier, and nearest to the west shore. By the record it appears that the whole six tiers of canal-boats were towed by hawsers from the stern of the steamboat extending aft from eighty to one hundred fathoms, which were fastened to the foremost tier of the canal-boats, showing that the canal-boat of the libellants was more than a thousand feet astern of the steamboat when the whole were in motion, as the canal-boats are about a hundred feet in length. All the canal-boats except the first tier were propelled by lines from the stern of the canal-boat immediately ahead, and they were kept in their places by breastlines. Arranged as described the steamboat with her tow, including also two barges of a larger class than the canal-boats, and propelled by long hawsers extending aft from the stern of the steamboat a distance of a hundred and fifty feet further than the last tier of the canal-boats, proceeded down the river; but it appears that the canal-boat of the libellants was brought in contact, during the first night of the trip, with a lighthouse in the river, with such force that her lines parted and she was separated for a time from the other canal-boats of her tier. Prompt measures were adopted to pick her up, and she was soon, by the aid of another steamer, replaced in her former position as the starboard canal-boat in the sixth tier of the tow. Prior to that accident the evidence is clear and undisputed that the canal-boat of the libellants was stanch, tight, and in every respect in good condition, but she received some injuries by the collision, causing her to leak a little, making it necessary to use her pump, say for an hour once in twenty-four hours, showing that she was still seaworthy and not disabled. On the morning of the third day of the trip, about half-past twelve o'clock, as the steamboat, with her thirty canal-boats and two barges in tow, was rounding West Point, the canal-boat of the libellants struck some object in the water, her starboard side coming in contract with it with such force as to throw her master from his berth, in which he was lying, and to cause the boat to careen and strike the boat on her port side, sending the latter against the next boat in the same tier with great violence. Injuries of a very serious character were occasioned by the accident to the canal-boat of the libellants. Her planks below the water-line on the starboard side were broken to such an extent that she filled with water with such rapidity as to prevent the master and bowman from securing their clothing, which was below, and to cause the canal-boat with her cargo on board to sink in two or three minutes. Process was issued and served and the respondents appeared and filed an answer. Testimony was taken, and the District Court entered a decretal order in favor of the libellants and referred the cause to a commissioner to compute the amount of the damages. Hearing was had before the commissioner and he reported that the damages amounted to $2329.92.

Exceptions were taken by the respondents to the amount allowed by the commissioner as the value of the canal-boat, and also to the charge for the balue of the cargo, but they do not state what would have been a proper allowance for either charge, nor did the respondents request the commissioner to report the evidence or his finding of the facts. Certain testimony is given in the record as having been taken before the commissioner, but it is not certified that it is all the testimony introduced before him, nor does the transcript afford any satisfactory statement of facts to enable the court to determine that there is any error in the report of the commissioner. Pursuant to that view, doubtless, the District Court confirmed the report of the commissioner and entered a final decree in favor of the libellants, and the respondents appealed to the Circuit Court, where the decree of the District Court was affirmed. Whereupon the respondents appealed to this court and now submit the case upon the same testimony as that introduced in the subordinate courts, and ask to have the decree of the Circuit Court reversed.

Most of the material facts touching the merits are either admitted by the respondents or so fully proved as to supersede all necessity for much discussion of any such topic. They admit that their agent undertook and agreed to tow the canal-boat of the libellants from the port of departure to her port of destination, and that having undertaken to perform the stipulated service they were under obligation to see that it was performed with ordinary and reasonable care and skill, and that they would be liable if they or those in charge of the steamboat were guilty of any such negligence in the performance of that duty as caused the loss of the canal-boat and her cargo. Conceding all that, still they deny that they or those in charge of the steamboat are responsible for the disaster, but contend that same was caused either by the unseaworthiness contend that the same was the neglect and fault of her crew or those in charge of her, in not using her pumps, or in failing to stop some leak, or other neglect or fault of those parties for which the respondents are not responsible. Mismanagement and fault are imputed to those in charge of the canal-boat as follows: that they cut the canal-boat loose from the other boats in the tier as the steamboat with her tow rounded West Point, and while she was proceeding down the river in her proper course, and the charge is that they did the act from an apprehension that the canal-boat was in a sinking condition, and without any notice or alarm to the steamboat or to those intrusted with her navigation; and they deny that the steamboat was so navigated as to cause the canal-boat of the libellants to strike against the rocks at that place, or that her bottom or side was broken by any such casualty as that alleged in the libel, or that those in charge of the steamboat were guilty of any fault, negligence, or carelessness. Such denials cannot avail the respondents, as the evidence to prove the allegations of the libel is full and satisfactory and abundantly sufficient to show that the decision of the subordinate courts is correct.

Attempt is made in argument to convince the court that considerable time elapsed after the canal-boat of the libellants was cut loose from the other canal-boats in the same tier before she sunk, as tending to show that the final disaster was attributable to the mismanagement of those in charge of the canal-boat in cutting the lines which held her in the tow. Having lashed her helm to port they cut the lines which held her in her position that she might go ashore, which it seems would in all probability have occurred if the canal-boat had continued to float, but the evidence satisfies the court that she filled with water and sank before there was time for any such hope to be realized. Inferences of an opposite character are drawn by one or two witnesses of the respondents, but they have no actual knowledge upon the subject, as is clear from their own statement. They infer that the canal-boat continued to float down the river for some time after she received the injuries because they saw, as they suppose, a light floating upon the water, which it is quite as probable was a light on the shore or the light in the galley of the canal-boat, as that, not having been fastened to the deck, might not have been submerged in the disaster to the canal-boat and her cargo.

Suffice it to say that the evidence that the canal-boat sunk in two or three minutes from the time she received the injuries described is such as to convince the court that it is true, and that the statements of the other witnesses, not being founded upon actual knowledge, are not sufficient to support the allegations of the answer.

Nothing further need be remarked in respect to the charge that the master of the canal-boat was guilty of mismanagement, as it is clear that the charge is without any support, and it is quite clear that the exceptions are not of a character to enable the court to review the findings of the master.

DECREE AFFIRMED.


text: Talk:The Cayuga (83 U.S. 177)/Opinion of the Court

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Smith v. Adsit (83 U.S. 185)

On motion to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of the State of Illinois; the case being thus:

An act of Congress of February 11th, 1847, providing for raising a military force for a limited time, enacted that a bounty in the form of one hundred and sixty acres of land, to be located by the warrantee, should be given to soliders honorably discharged, but provided 'that all sales, mortgages, powers, or other instruments of writing going to affect the title or claim to any such bounty right, made or executed prior to the issue of the warrant or certificate, should be null and void to all intents and purposes whatsoever.'

With this statute in force Smith filed a bill in one of the inferior State courts of Illinois, against Adsit, Wright, Rourk, and the trustees of schools of township thirty, in range six, in Grundy County, charging that in 1850, by conveyance from one Holmes, he became the owner of certain lands in the county of Grundy, particularly described. The bill averred that Holmes had been a soldier in the Mexican war, that he received a certificate of service and of honorable discharge, entitling him, under the acts of Congress, to a land warrant, and that he applied to Adsit to procure the warrant for him; that Adsit prepared the necessary papers, and at the same time made out a power of attorney for Holmes, authorizing the assignment of the land warrant about to be obtained, with blank spaces for its date, for the number and date of the warrant, and for the name of the attorney, and that he fraudulently induced Holmes to sign it; that this power of attorney was filled up subsequently, and after the land warrant was obtained, with the name of one Hoard as the attorney, with the number and date of the warrant issued (No. 23,129, date August 18th, 1848), and with August 30th, 1848, as the date of the power. The bill further charged that Adsit then procured the attorney to assign the warrant to him, that he located it and obtained for the land a patent in his own name, as assignee of Holmes. It further charged that at the date of the power Holmes was a minor, and that the defendants, Wright, Rourk, and the school trustees, hold the land under conveyances from Adsit, with notice of the plaintiff's rights. It further charged that the power of attorney was a nullity because obtained by fraud, and because of the minority of Holmes; and it averred that if any sale was made by him to Adsit of the land warrant, it was in fact made before the warrant was issued, that it was therefore null by force of the act of Congress, and that consequently Adsit held and located the warrant as a trustee for Holmes, and that the purchasers from him were chargeable with the same trust.

The prayer of the bill was that Adsit might be decreed to have acquired the lands in trust for Holmes; that the other defendants might be decreed to have purchased them, and to hold them charged with the same trust; that an account should be directed, and also a conveyance, to the plaintiff as assignee of Holmes. There was also a prayer for general relief.

The answer of Adsit denied the fraud charged, and averred that he purchased the land warrant from Holmes, without any agreement to act as his agent; and the other defendants set up that they were bon a fide purchasers from Adsit, without notice of any equity in Holmes.

The court in which the bill had been filed entered a decree against Adsit for $6829, and dismissed the bill as to the other defendants. Adsit then appealed to the Supreme Court of the State, where the decree against him was reversed, and the bill dismissed as to him, for want of jurisdiction. From that decree Smith, the complainant, appealed to this court, under an assumption that the case came within the 25th section of the Judiciary Act of 1789, or the act of February 5th, 1867, amendatory of it, and that a title, right or privilege under a statute of the United States, had been specially set up and claimed by him and decided against by the Supreme Court of the State.

Mr. George Payson, for the defendant in error, adverting to the fact that the bill had been dismissed as to Adsit, in the Supreme Court, for want of jurisdiction, now moved the court to dismiss the writ in this court, because it nowhere appeared in the record that the decision of the court below was against any statute of the United States specially set up by the complainant, but, on the contrary, that the record, so far as it showed anything, showed that the decree had been based on independent grounds.

Mr. W. T. Burgess, contra, against the dismissal:

The injury sustained springs from the violation of an act of Congress. This act lies at the foundation of the whole case made. The relief must be applied for, in the first instance, in a State court having, under the laws of the State, jurisdiction to grant it, and it has been denied by the Supreme Court of the State when it ought to have been allowed. Now the case at bar upon all these questions is so clearly within the jurisdiction imposed upon this court, that it needs only to be stated to be seen.

Mr. Justice STRONG, having stated the case, delivered the opinion of the court.

title: Smith v. Adsit (83 U.S. 185)


text: Talk:Smith v. Adsit (83 U.S. 185)

title: Talk:Smith v. Adsit (83 U.S. 185)


text:
Smith v. Adsit (83 U.S. 185)/Opinion of the Court

A decree was entered in the State court where the bill was filed, against Adsit for $6829, and the bill dismissed as to the other defendants. He then appealed to the Supreme Court of the State, where the decree against him was reversed, and the bill was dismissed as to him, as the record shows, for want of jurisdiction.

In view of this we do not perceive that we have any authority to review the judgment of the State court. Plainly, if there be any Federal question in the case it is because the plaintiff claimed some title, right, privilege, or immunity under the act of Congress to which reference was made in his bill, and because the decision of the court was against the title, right, privilege, or immunity thus set up or claimed. Such a claim and such a decision must appear in the record. But we think this does not appear. It must be admitted that the question whether the sale of the land warrant by Holmes to Adsit, if made before the warrant issued, as charged in the bill, was not a nullity, may have been presented, but it does not appear that such a question was decided, much less that it was decided adversely to the plaintiff in error. Nothing is more certain than that to give this court jurisdiction to review the judgment of a State court, the record must show, either expressly or by necessary intendment, not only that a Federal question was raised, but that it was decided adversely to the party who has caused the case to be removed here.

The doctrine was plainly stated in Crowell v. Randell, and it has been repeated in numerous later decisions. Indeed it is the express requirement of the twenty-fifth section of the Judiciary Act, and of the act of February 14th, 1867. And the rulings of this court have gone further. In Parmelee v. Lawrence, it was said it must appear that the question must have been necessarily involved in the decision, and that the State court could not have given a judgment without deciding it. In Williams v. Norris, it was held not to be enough that the construction of an act of Congress was drawn in question, and that the decision was against the title of the party, but that it must also appear that the title depended on that act. And in Rector v. Ashley, it was laid down that if the judgment of the State court can be sustained on other grounds than those which are of Federal cognizance, this court will not revise it, though a Federal question may also have been decided therein, and decided erroneously. These decisions go much further than is necessary to sustain our judgment now.

As we have seen, the bill was dismissed for want of jurisdiction. The judgment of the court respecting the extent of its equitable jurisdiction is, of course, not reviewable here. The record does not inform us what other questions, if any, were decided. It nowhere appears that the sale from Holmes to Adsit was ruled to be valid, notwithstanding the act of Congress which declared that sales of bounty-rights, made or executed prior to the issue of land warrants therefor, shall be null and void. Nor was it necessary to the decree that was entered that such a decision should have been made. After the land had been sold by Adsit to bon a fide purchasers without notice, which had been decreed in the court below, from which decree there was no appeal-after it had thus been settled that there was no continuing trust in the land-it may well have been determined that the plaintiff's remedy against Adsit was at law, and not in equity, even if the sale from Holmes to him was utterly void. But whatever may have been the reasons for the decision, whether the court had jurisdiction of the case or not, is a question exclusively for the judgment of the State court.

We need not pursue the subject further. It is enough that it does not appear the claim of the plaintiff, that the sale of Holmes to Adsit was a nullity because of the act of Congress, was necessarily involved in the decision, or that the sale was decided to be valid, or that the same decree would not have been made if the invalidity of the sale had been acknowledged.

WRIT DISMISSED.


text: Talk:Smith v. Adsit (83 U.S. 185)/Opinion of the Court


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Bank v. Turnbull Co

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

By the statute law of the State just named, it is enacted, that when an execution has been levied, and a party other than the defendant asserts a claim to the property levied on, the sheriff, before proceeding to sell, may require of the plaintiff an indemnifying bond, upon the delivery of which the claimant of the property may execute 'a suspending bond,' the effect of which is to delay the sale until the claim thereto can be adjusted. If the claimant desires that the property should remain in the same possession as when the levy was made, he may execute 'a forthcoming bond,' and thereupon the property remains in such possession at the risk of the claimant. This is the statute remedy to try in such case the right of property, and is termed an interpleader.

This statute being in force, the First National Bank at Alexandria, Virginia, obtained a judgment in the State Circuit Court for the county of Alexandria, against Abijah Thomas for $4700, with interest and costs. Upon this judgment an execution issued and was levied upon some cotton at Alexandria. Certain persons, to wit, Alexander and John Turnbull, citizens of the State of Maryland, with Alexander Reach, a citizen of the State of New York, trading together as Turnbull & Co., asserted a claim as owners of the property thus levied on, and, thereupon, the sheriff, before proceeding further under his levy, demanded of the plaintiff in the execution an indemnifying bond, which demand was complied with. Turnbull & Co., then caused to be executed both a suspending and forthcoming bond, thereby preventing a sale of the property levied on. Under authority of the statute, the Circuit Court of Alexandria, in which the judgment was rendered, upon the petition of Turnbull & Co., as claimants of the property, entered an order, directing an issue to be tried by a jury, to determine the right to the property thus levied on, and in such order adjudged that Turnbull & Co. should be plaintiffs on the trial of the issue. Before any further action, however, was taken under this order, Turnbull & Co. filed a petition to said court, praying for a removal of the suit to the Circuit Court of the United States for the District of Virginia. This petition was filed in virtue of the act of Congress of March 2d, 1867, which enacts:

'That where a suit is now pending or may hereafter be brought, in any State court in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds $500, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, may [on compliance with certain conditions prescribed] file a petition in such State court for the removal of the suit into the next Circuit Court of the United States, to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court on the first day of its session copies of all process, pleadings, depositions, testimony, and other proceedings in said suit,. . . and it shall be, thereupon, the duty of the State court to accept the surety, and proceed no further in the suit. And the said copies being entered as aforesaid in such court of the United States, the suit shall then proceed in the same manner as if it had been brought there by original process.'

The application to the State court was refused, and Turnbull & Co. thereupon petitioned the judge of the District Court at chambers for a mandamus to compel the removal. This being granted, the case was brought into the Circuit Court and there docketed.

Upon the calling of the case there, a motion was made by the counsel for the bank to dismiss the same for want of jurisdiction, which motion was overruled, and thereupon, a written stipulation was signed by the counsel of the respective parties providing that a jury should be waived, and the cause submitted to the decision and judgment of the court. Upon a full hearing of the case under such submission, the court decided, that the property in controversy was not liable to the execution of the bank, and gave judgment in favor of Turnbull & Co., with costs. To that judgment a writ of error was sued out from this court.

The record did not show that any process had been issued or declaration filed against the bank; or that the bank had pleaded, demurred, or otherwise answered.

On the calling of the case here, after the judges had looked at the record, the Chief Justice signified to the counsel that the court was not satisfied that the case had been one for removal under the act of March 2d, 1867, to the Circuit Court, and directed them to speak to that point.

Mr. H. O. Claughton, for the plaintiff in error, argued that this was so, and that the Circuit Court below ought not to have received it, but to have left it with the County Court of Alexandria. The statutes, he argued, authorized the transfer of nothing but 'a suit;' and in West v. Aurora City, this court had decided that the only sort of suit removable from a State court to the Federal court, was a suit regularly commenced by process served upon the defendant. There was nothing of that sort here. What was transferred was, in fact, not 'a suit,' but an incident to a suit, a collateral question springing out of it. That a proceeding incidental to another suit is not a 'suit' within the spirit of the act, was settled by this court in Gwin v. Breedlove, 2

Mr. F. L. Smith, contra:

In The City Council of Charleston v. Weston, the question arose as to whether or not a prohibition was a suit within the meaning of the 25th section of the Judiciary Act. Marshall, C. J., in answer to this question, speaking for the court, says of the word suit:

'The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if the right is litigated between parties in a court of justice, the proceeding by which the decision is sought, is a suit.'

In Holmes v. Jennison, Taney, C. J., delivering the opinion of the court, entirely concurs in this definition given by Chief Justice Marshall.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Bank v. Turnbull Co


text: Talk:Bank v. Turnbull Co

title: Talk:Bank v. Turnbull Co


text:
Bank v. Turnbull Co/Opinion of the Court

The bank recovered a judgment against Abijah Thomas for $4700, and interest, in the Circuit Court for the county of Alexandria. A writ of fieri facias was issued to the sheriff of that county, and was levied upon certain personal property to satisfy the judgment. Turnbull & Co. claimed the property as theirs. The plaintiff gave the sheriff an indemnifying bond and required him to sell. To prevent this Turnbull & Co. gave him a suspending bond, and, in order to have the property retained in the possession of Thomas, also a forthcoming bond. Turnbull & Co. thereupon applied to the Circuit Court of the county for leave to intervene in the original suit, and to order an issue to try the right of property. The prayer of the petition was granted, and an order was made that a jury should be sworn to try the issue whether the property levied upon belonged to Turnbull & Co., or to Thomas, and that Turnbull & Co. should be regarded as the plaintiffs in the proceeding. Without availing themselves of this order Turnbull & Co. thereupon applied to the Circuit Court for the county for an order to remove the cause, under the act of Congress of 1867, to the Circuit Court of the United States for that district. This was refused, and they thereupon petitioned the judge of the District Court of the United States, sitting at chambers, for a writ of mandamus directed to the Circuit Court for the county. The writ was allowed and issued, and the cause was removed according to the prayer of the petitioners. In the Circuit Court of the United States the bank moved to dismiss for want of jurisdiction. The motion was overruled. The parties thereupon waived a jury and submitted the cause to the court. The court found for Turnbull & Co., and gave judgment in their favor. The bank took a bill of exceptions, setting forth all the evidence, and excepting to the judgment given.

Upon examining the record we find there was no process issued against the bank, no declaration filed by Turnbull & Co., and no plea or other written response by the bank. The record is a blank as to these things.

It may well be doubted whether so informal a proceeding as that presented by this record is a suit within the meaning of the act of Congress under which the right of removal was claimed and allowed. But, as we do not propose to place our judgment on that ground, it is not necessary to consider the subject.

Conceding it to be a suit, and not essentially a motion, we think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation. A judgment had been recovered in the original suit, final process was levied upon the property in question to satisfy it, the property was claimed by Turnbull & Co., and this proceeding, authorized by the laws of Virginia, was resorted to to settle the question whether the property ought to be so applied. The contest could not have arisen but for the judgment and execution, and the satisfaction of the former would at once have extinguished the controversy between the parties. The proceeding was necessarily instituted in the court where the judgment was rendered, and whence the execution issued. No other court, according to the statute, could have taken jurisdiction. It was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required should be done touching the property in the hands of its officer. It was intended to enable the court, the plaintiff in the original action, and the claimant, to reach the final and proper result by a process at once speedy, informal, and inexpensive. That it was only auxiliary and incidental to the original suit is, we think, too clear to require discussion. We shall content ourselves with referring to some of the leading authorities which bear upon the subject.

The judgment of the court below is REVERSED, and the cause will be REMANDED to that court with directions to enter a judgment of reversal, and then to remit the case to the Circuit Court for the county of Alexandria, whence it came.

Mr. Justice STRONG dissented.


text: Talk:Bank v. Turnbull Co/Opinion of the Court


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Koontz v. Northern Bank

APPEAL from the Circuit Court for the Southern District of Mississippi; the case being thus:

The Commercial Bank of Natchez owning certain property, and among it a dwelling attached to its banking-house, its property was placed, on an application for a forfeiture of its charter, in the hands of one Robertson as trustee. Several of the stockholders, represented by a certain Bacon, being dissatisfied with what was thus done, filed a bill in the court below against this Robertson, and all the property was taken from him and put into the hands of one Ferguson, as receiver. Hereupon, in November, 1857, the receiver was authorized by the court to sell the lands or any part of them upon such terms as he may deem best for the interest of all parties, provided that he shall not sell any of said lands upon a longer credit than one, two, and three years from the time of sale.

The order authorizing the sale adding:'In all cases he is to retain a lien or take a deed of trust on the lands sold.'

On the 12th of March, 1860, the receiver sold the dwelling attached to the bank to one Gustavus Calhoun, and on the same day executed to him a conveyance of the premises sold, reciting in the conveyance that he executed it as receiver, and 'for and in consideration of the sum of nine thousand and five hundred dollars, to him in hand paid by the said Gustavus Calhoun, the receipt whereof is hereby acknowledged.' It contained a covenant of warranty against all persons claiming through the receiver. The deed was duly recorded within five days after the sale, and Calhoun entered into and kept possession under it.

After the receiver had thus executed his conveyance-that is to say, on the 19th of May, 1860-the receiver reported that he had 'sold the dwelling attached to the banking-house in Natchez for $9500, and prayed that the same may be confirmed.' He also referred to certain sales of land in Bolivar County, in 1858, in which the purchasers had allowed the lands to be sold for taxes. The court ordered that this report, and a report made by a commissioner in the case, be referred to the master in chancery 'to examine into and report upon the sufficiency and correctness of said reports.'

The master, in conformity to this order, made his report on 29th May, 1860. He stated that he had had the reports under consideration and found them correct, and recommended their confirmation. The last portion of the report of Ferguson, the receiver, respecting the redemption of lands in Bolivar County, he referred to the court for consideration.

At the same term, 1860, the court ordered that the report of the master in chancery be in all things confirmed, reserving for consideration until the next term the matter referring to the lands in Bolivar County.

The reader will have observed that neither in the master's report of sale nor anywhere else in these proceedings is the name of the person mentioned to whom the sale was made, nor the terms on which it was made, as whether for cash or on credit. And, in point of fact, Calhoun did not pay any cash, but, on the contrary, gave his promissory note to the receiver, Ferguson, for the price.

In this state of things, and Calhoun being in possession of the property thus bought by him, and occupying it as his dwelling, his son-in-law, one Blackburn, was desirous of raising money to carry on the business of planting, in which he was engaged on a plantation owned by Calhoun, his father-in-law. A firm in New Orleans, Given, Watts & Co., agreed to furnish it to him upon his own notes, provided these were secured by a mortgage of real estate of Calhoun. Accordingly, on the 22d of January, 1867, Blackburn gave the firm his notes (three notes for $4000 each, falling due respectively in October, November, and December, 1867), and Calhoun and wife executed, on the same day, a mortgage of the property bought, and occupied at the time as above mentioned. Prior to its execution, Given, Watts & Co., to assure themselves of the validity of Calhoun's title, caused an inquiry to be instituted, and received from the clerk of the court a certificate that there were no incumbrances. Given, Watts & Co. sold one of these notes to the Northern Bank of Kentucky, and, becoming bankrupt, the other two passed to their assignees in bankruptcy.

Calhoun became insolvent, and one Koontz, who had succeeded Ferguson as receiver of the Commercial Bank of Natchez, finding that Calhoun had never paid his note for $9500, now proposed to him to cancel the conveyance that had been made to him. Calhoun agreed to do this, and thereupon made a deed of the premises to Koontz; after which Koontz applied to the court on an ex parte proceeding and obtained an order reciting the invalidity of the sale by Ferguson to Calhoun and cancelling the same.

In this state of things the Northern Bank of Kentucky and the assignees of Given, Watts & Co. filed a bill of foreclosure in the court below, against Koontz and also against Calhoun and wife, praying a foreclosure of the mortgage and payment of the three notes, or of what was due on them. The court, finding the amounts due the complainants respectively, decreed a foreclosure nisi, and ordered Koontz to hold the property subject to payment of the amounts thus found, and enjoined him from setting up any title under the conveyance made to Koontz adverse to the rights of the complainants under the mortgage. From this decree Koontz appealed.

Mr. W. W. Boyce (a brief of Mr. W. P. Harris being filed), for the appellant:

1. A report of a sale without the name of the purchaser, or the terms of sale (or whether for cash or credit), is in chancery practice a report fatally defective; in other words, no report. If there was no report there was nothing on which a confirmation could act; and, therefore, no confirmation. The whole matter remained in the control of the court, and it properly cancelled Ferguson's deed.

2. The deed was executed and delivered before there was any report of a sale, a wholly irregular proceeding. A deed should have been returned with a report of the sale, to be delivered when the sale was confirmed and the purchase-money paid.

3. The execution of the deed to Calhoun was void for want of authority to execute it, unless there was taken contemporaneously with it 'a lien or deed of trust.' The authority to sell existed only as a means to an end; the end being to take a lien or deed of trust.

These difficulties are obvious and conclusive of the case, unless in some way avoided. The argument will be that Given, Watts & Co. were bon a fide purchasers without notice, and not affected by errors of the court or receiver.

But were they without notice? The deed by which Calhoun obtained a color of title, was of record for purposes of notice. It disclosed on its face that Calhoun's purchase was not from a party holding title, but from an officer of court acting under orders, and by which a report and confirmation of the sale was requisite. This order set forth the terms of sale. The deed led the purchaser to the record of the case of Bacon et al. v. Robertson, and from that he saw an irregular proceeding, a sale and deed delivered long before there was any report of the sale. He saw a report which did not give the name of the purchaser, or the terms of the sale, or any direct order of confirmation. He knew that sales on credit were incomplete until payment. All this put him upon inquiry, and is constructive notice of the actual facts. He did not inquire of Calhoun whether he paid the purchase-money. The condition of the record was such that it put on him as a prudent man the duty of further investigation.

Mr. P. Phillips (a brief of Messrs. Nugent and Yerger being filed), contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Koontz v. Northern Bank


text: Talk:Koontz v. Northern Bank

title: Talk:Koontz v. Northern Bank


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Page:Dictionary of National Biography volume 59.djvu/39

  cerpta e Rotulis Finium, vols. i. ii.; List of Sheriffs to 1831, Publ. Rec. Office Lists and Indexes, No. ix; Deputy-Keeper of Publ. Records' 32nd Rep. App. i. 259–60; Annals of Osney, Winchester, Burton, Dunstaple, Worcester, and Wykes, in Annales Monastici, vols. ii. iii. iv.; Red Book of the Exchequer, vols. i. ii.; Chronica Johannis de Oxenedes; Rishanger's Chronicle; Flores Historiarum, vol. ii.; Bart. de Cotton's Historia Anglicana; Peckham's Letters, vol. ii.; Royal Letters Henry III, vol. ii.; Chronicles of Edward I and Edward II, vol. i.; Trokelowe's Opus Chronicorum, p. 9; Matthew Paris's Chronica Majora, vol. v., the last eleven being in the Rolls Series; Rishanger's Chron. de Bello (Camden Soc.); Liber de Antiquis Legibus (Camden Soc.); Calendar of Patent Rolls; Calendar of Close Rolls; Calendar of Papal Registers, Papal Letters, vol. i.; Michel and Bémont's Rôles Gascons in Documents Inédits; Bémont's Simon de Montfort; Dugdale's Baronage, i. 670; Stubbs's Select Charters; Foss's Judges of England, ii. 504, 505; Hoare's Modern Wiltshire, vols. ii. iii.]  WALES, JAMES (1747–1795), portrait-painter and architectural draughtsman, born in 1747, was a native of Peterhead, Aberdeenshire. Early in life he went to Aberdeen, where he was educated at Marischal College, and soon drifted into art. Having painted a striking likeness of Francis Peacock, a local art amateur, he received a number of commissions for portraits, principally small in size, and painted upon tinplate, and occasionally sold a landscape; but, being dissatisfied with his prospects, he went to London. Practically self-taught, he had a faculty for profiting by what he saw, and painted landscape in the manner of Poussin; but his exhibited works at the Royal Academy and elsewhere between 1783 and 1791 were portraits. In 1791 he went to India, where, although he painted numerous portraits of native princes and others, and executed the sketches from which Thomas Daniell [q. v.] painted his picture of Poona Durbar, which is said to be ‘unrivalled perhaps for oriental grouping, character, and costume,’ his attention was mainly occupied in making drawings of the cave temples and other Indian architectural remains. He worked with Daniell at the Ellora excavations, and twenty-four drawings by him are engraved in Daniell's ‘Oriental Scenery.’ He was engaged upon a series of sketches of the sculptures of Elephanta, when he died, it is thought at Thânâ, in November 1795. His wife Margaret, daughter of William Wallace of Dundee, and his family accompanied him to India; and his eldest daughter, Susanna, married Sir Charles Warre Malet [q. v.], the resident at Poona, in 1799.

[Memorial Tablet in Bombay Cathedral; Indian Antiquary, 1880; Scottish Notes and Queries, vols. iii. and iv.; Burke's Peerage; Thom's Aberdeen; Moor's Hindu Pantheon, 1810; Bryan's and Redgrave's Dicts.]  WALES, OWEN (d. 1378), soldier. [See .]

WALES, WILLIAM (1734?–1798), mathematician, was born about 1734. He first distinguished himself as a contributor to the ‘Ladies' Diary,’ a magazine containing mathematical problems of an advanced nature [see ]. In 1769 he was sent by the Royal Society to the Prince of Wales fort on the north-west coast of Hudson's Bay to observe the transit of Venus. The results of his investigations were communicated to the society (Transactions, lix. 467, 480, lx. 100, 137), and were published in 1772 under the title ‘General Observations made at Hudson's Bay,’ London, 4to. During his stay at Hudson's Bay he employed his leisure in computing tables of the equations to equal altitudes for facilitating the determination of time. They appeared in the ‘Nautical Almanac’ for 1773, and were republished in 1794 in his treatise on ‘The Method of finding the Longitude by Timekeepers,’ London, 8vo.

Wales returned to England in 1770, and in 1772 he published ‘The Two Books of Apollonius concerning Determinate Sections,’ London, 4to, an attempt to restore the fragmentary treatise of Apollonius of Perga. The task had been more successfully carried out by Robert Simson [q. v.] at an earlier date, but the results of his labours were not published until 1776 in his posthumous works. In 1772 Wales was engaged, with William Bayly [q. v.], by the board of longitude to accompany Cook in the Resolution on his second voyage round the world, and to make astronomical observations. He returned to England in 1774, and on 7 Nov. 1776 he was elected a fellow of the Royal Society. In 1777 the astronomical observations made during the voyage were published, with an introduction by Wales, at the expense of the board of longitude, in a quarto volume with charts and plates. In the same year appeared his ‘Observations on a Voyage with Captain Cook;’ and in 1778 his ‘Remarks on Mr. Forster's Account of Captain Cook's Last Voyage’ (London, 8vo); a reply to Johann Georg Adam Forster [q. v.], who, with his father, had accompanied the expedition as naturalist, and had published an unauthorised account of the voyage a few weeks before Cook's narrative appeared, in


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Koontz v. Northern Bank/Opinion of the Court

There is only one question in this case which we deem it important to consider, and that is, whether the deed of the receiver, in the suit of Bacon and others v. Robertson, passed to Calhoun a good title to the property mortgaged by him; and upon this question we have no doubt.

The suit of Bacon and others v. Robertson related to the effects of the Commercial Bank of Natchez in the hands of the defendant, who had been appointed trustee under a proceeding for the forfeiture of the charter of the bank, and presented a case in which it was eminently proper that a receiver should be appointed of the effects. No question was made as to the legality or propriety of the appointment. The premises in question, consisting of a house and lot in Natchez, constituted a portion of these effects. The order of the court, entered at its November Term in 1857, empowered the receiver to sell the lands, or any part of them, belonging to the bank, upon such terms as he might deem best for the interest of all parties, provided he should not sell any of the lands on a longer credit than one, two, or three years; and in all cases should retain a lien or take a deed of trust on the lands. Under the authority thus conferred, the receiver sold the property in controversy in March, 1860, to Calhoun, for the sum of nine thousand and nine hundred dollars, and executed and delivered to him a deed of the premises, reciting that it was made by the grantor, as receiver, and in consideration of the sum specified, the receipt of which it acknowledged. Soon afterwards the deed was placed on the records of the county.

In May, following, the receiver reported to the court that he had sold the premises for the consideration stated, and prayed that the sale might be confirmed. The court referred the report to a master to examine into its sufficiency and correctness. The master reported that it was correct, and recommended its confirmation. The court thereupon ordered that the master's report be in all things confirmed. This confirmation carried with it the confirmation of the sale into which the master was required to examine.

Soon afterwards Calhoun went into possession of the premises purchased under the deed from the receiver, and remained in possession in person, or by his tenants, up to the period when the mortgage in suit was executed, in January, 1867, and until his surrender to Koontz, the present receiver.

There was undoubtedly an irregularity committed by the receiver in executing his conveyance before the sale was confirmed by the court, and until then the contract of purchase was not binding upon that officer. But his conveyance was not on that account void; it was only voidable. If the deed had been executed after the confirmation, it would have taken effect by relation as of the day of the sale. If the confirmation had been denied, the deed, resting upon the sale, would have become inoperative. But the confirmation having been made, all objection to the time at which the deed was executed is removed.

The authority conferred by the court upon the receiver to sell, carried with it authority to give to the purchaser evidence of a transfer of title. And that the court intended he should exercise this implied authority, by executing deeds where land was sold, is evident from the requirement that he should, in case of sale on credit, retain a lien or take a deed of trust on the lands from the purchaser.

The report of the receiver does not state in terms that the sale to Calhoun was made in cash; it only discloses the fact that a sale was made, and specifies the amount of the purchase-money. But the only inference which the court could reasonably draw from the language, in absence of any statement that the sale was on credit, was undoubtedly that it was a cash sale. It is clear that the court so understood the transaction. The receiver so treated it by the immediate execution and delivery of a deed reciting the payment of the stipulated consideration, and omitting to take in return any trust-deed from the purchaser.

If the fact were other wise, and the court was deceived by the report of the receiver or master, and the purchaser participated in creating the deception, it could, undoubtedly, at any time before the rights of innocent purchasers had intervened, have set the whole proceedings, including the deed, aside. But after the rights of such third parties had intervened, its authority in that respect could only be exercised consistently with protection to those rights.

A purchaser under a deed from a receiver is not bound to examine all the proceedings in the case in which the receiver is appointed. It is sufficient for him to see that there is a suit in equity, or was one, in which the court appointed a receiver of property; that such receiver was authorized by the court to sell the property; that a sale was made under such authority; that the sale was confirmed by the court, and that the deed accurately recites the property or interest thus sold. If the title of the property was vested in the receiver by order of the court, it would in that case pass to the purchaser. He is not bound to inquire whether any errors intervened in the action of the court, or irregularities were committed by the receiver in the sale, any more than a purchaser under execution upon a judgment is bound to look into the errors and irregularities of a court on the trial of the case, or of the officer in enforcing its process.

If the receiver in the one case, or the sheriff in the other, omit to perform his whole duty, by which the parties are injured, or commit any fraud upon the court, and the rights of third parties have so far intervened as to prevent the court from setting the proceedings aside, the injured parties must seek their remedy personally against those officers, or on their official bonds. The interest of parties in the controversy will generally induce such attention to the proceedings as to prevent great irregularities from occurring, without being brought to the notice of the court.

AFFIRMED.


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Davis v. Gray

APPEAL from the Circuit Court for the Western District of Texas; the case being thus:

The State of Texas had at the times hereinafter named, certain public lands. A general land office was established at the capital of the State for the registration of titles and surveys, and the lands were divided when surveyed into sections of six hundred and forty acres each. One Kuechler was the chief of this office, under the title of the 'Commissioner of the General Land Office.' All certificates for the public lands were issued by this commissioner; and all patents were issued under the seals of the State and the General Land Office, and were required to be signed by the governor and countersigned by the said commissioner. These certificates were evidences of obligation on the part of the State to grant, and give a patent to the holder for a certain amount therein mentioned of the vacant and unreserved public lands of the State; when the certificates are located and surveyed, and the surveys returned to the commissioner and approved by him, a patent, conveying the fee, is executed as above mentioned.

In and about they year 1856, and for many years thereafter the State of Texas, though of great extent, was, as it still is, sparsely inhabited, while its public domain was far from markets, and without connection with the more settled parts of the country; and it was greatly to the interest of the State to attract immigration and capital. To produce this result it became the settled policy of the State to make grants and reservations of public lands to corporations, conditioned upon the construction of certain amounts of railroad within certain times. In pursuance of this policy the Memphis, El Paso, and Pacific Railroad Company, was incorporated February 4th, 1856, by the State of Texas, to build a railroad across the State from the eastern boundary to El Paso, with a land grant of 16 sections to the mile; certificates for 8 sections per mile to be issued on the grading of successive lengths of road, and 8 more per mile upon the complete construction of the same; and a reservation was granted of the alternate or odd sections of land for eight miles on each side of the road, within which the company should have an exclusive right to locate its certificates, while it also had the privilege to locate said certificates on any other unappropriated public lands.

This reservation, of course, was of the greatest value, as it enabled the company to reap the advantage of the enhancement of price which the construction of the road by them would cause in the lands along the line.

In the same year of 1856 the company was organized in reliance on the grants, and especially on the reservation, and duly accepted the same.

There were certain conditions precedent to the vesting of the charter, land grant, and reservation; but they were all complied with, and at a cost to the company for surveys of over $100,000. These and subsequent surveys resulted, for the company, in the official designation of the road line and the centre line of the reservation for some 800 miles, and the 'sectionizing' and numbering of the odd sections of land in said reservation in a belt of country some 250 miles in length and 16 in width; and for the State in the surveying and mapping of the same belt of country and the 'sectionizing' and numbering of the alternate or even sections for the benefit of the State. The company also graded some 65 miles of road westerly from Moore's Landing, In Bowie County, and was interrupted in the work of construction by the rebellion and so-called 'secession' of Texas; but resumed work after the war, and graded between 20 and 30 miles further, from Jefferson in Marion County, in the direction of Moore's Landing.

There were certain conditions subsequent annexed to the charter, viz.: that if the company should not have completely graded not less than 50 miles of their road by the 1st of March, 1861, and at least 50 miles additional thereto within two years thereafter, then the charter of said company should be null and void. The first 50 miles were graded within the required time; the second 50 miles have nover been graded. Within two years after the performance of the first condition, however, the legislature of Texas, by act 'for the relief of railroad companies,' approved February 11th, 1862, enacted, that the failure of any chartered railroad company to complete any section, or fraction of a section, of its road as required by existing laws, should not operate as a forfeiture of its charter, or of the lands to which the said company would be entitled under the provisions of an act entitled 'An act to encourage the construction of railroads in Texas by donation of land,' approved January 30th, 1854; provided that the said company should complete such section, or fraction of a section, as would entitle it to donations of land, under existing laws, within two years after the close of the war between the Confederate States and the United States of America. Within the two years after the close of the war, the provisional legislature, by act of November 13th, 1866, enacted, 'that the grant of 16 sections of land to the mile to railroad companies heretofore or hereafter constructing railroads in Texas shall be extended, under the same restrictions and limitations heretofore provided by law, for 10 years after the passage of this act;' and by article 12, section 33 of the present constitution of Texas, while declaring that the legislatures which sat from March 18th, 1861, to August 6th, 1866, were without constitutional authority, yet enacted that such declaration should not affect, prejudicially, private rights which had grown up under such acts, and that though the legislature of 1866 was only provisional, its acts were to be respected, so far as they were not in violation of the Constitution and laws of the United States.

By act of July 27th, 1870, the Southern Transcontinental Railroad Company was incorporated, and it was enacted, in terms, that it might 'purchase the rights, franchises, and property of the Memphis, El Paso, and Pacific Railroad Company, heretofore incorporated by the State.'

The land grant was limited to fifteen years from the 4th of February, 1856, but this time had not yet expired, and by an act of November 13th, 1866, for the benefit of railroad companies, it was enacted, that this grant of 16 sections of land to the mile to railroads theretofore or thereafter constructing railroads in Texas, should be extended under the same restrictions and limitations theretofore provided by law, for ten years after the passage of this act.

The land reservation was conditioned upon certain surveys: 1. It was to be surveyed from the eastern boundary of Texas, as far as the Brazos River, within four years from March 1st, 1856. 2. The centre line of the reserve was to be run and plainly designated from the Brazos to the Colorado within fifteen months from February 10th, 1858. 3. The whole reservation was to be surveyed within ten years from February 10th, 1858. 4. The company was to have a connection with some road leading to the Mississippi River or the Gulf of Mexico, within ten years from February 10th, 1858. The first and second of these conditions were fulfilled within the times limited. The legislature, by act approved January 11th, 1862, enacted that 'the time of the continuance of the present war between the Confederate States and the United States of America shall not be computed against any internal improvement company in reckoning the period allowed them in their charters, by any law, general or special, for the completion of any work contracted by them to do.'

This act the company considered extended the time for the performance of the third and fourth conditions till the 10th of June, 1873.

In the years 1867 and 1868 the company executed two series of bonds, known as land grant bonds, amounting in the aggregate to the par value of $10,000,000 in gold, and also executed and delivered to one Forbes and others, trustees as aforesaid, two mortgages to secure said bonds, by one of which they mortgaged all lands actually acquired or thereafter to be acquired by said company by grading, construction, and equipping the first 150 miles of the road of said company, from Jefferson in Marion County to Paris in Lamar County, and by the other of which they mortgaged the like property for the second 150 miles, from Paris to Palo Pinto in Palo Pinto County. These bonds were put on the bourse in Paris, France, and sold for value to the extent of $5,343,700 of their par value, mostly in small lots, and to persons of limited means. The grants, guarantees, and assurances by the State of Texas to said company of the said franchises, and especially of said land grant and land reservation, were recited in said mortgages, and were also announced and repeated to the purchasers personally, and by advertisement and prospectus, and the purchasers took the bonds relying on said grants, and upon the exclusive right of the company to locate certificates within the territory so reserved.

The bonds not being paid the Circuit Court for the Western District of Texas, on motion of Forbes, trustee under the mortgage, on the 6th of July, 1870, enjoined the railroad company from disposing of any of its effects, and put the road into the hands of one John A. C. Gray, as receiver:

'To take possession of the moneys and assets, real and personal; roadbed, road, and all property, whatsoever, of the said Memphis, El Paso, and Pacific Railroad Company, wheresoever the same may be found, with power under the special order of the court, from time to time to be made, to manage, control, and exercise all the franchises, whatsoever, of said company, and, if need be, under the direction of the court, to sell, transfer, and convey the road, roadbed, and other property of said company, as an entire thing,' &c.

On the 20th of January, 1871, it was further ordered by the court:

'That the said John A. C. Gray, receiver, as aforesaid, be and he is hereby, authorized and empowered to defend and cortinue all suits brought by or against the said Memphis, El Paso, and Pacific Railroad Company, whether before or after the appointment of said receiver, and whether in the name of said company or otherwise; defend all suits brought against him as such receiver or affecting his receivership, and to bring such suits in the name of said company, or in the name of said receiver, as he may be advised by counsel to be necessary and proper in the discharge of the duties of his office, and for acquiring, securing, and protecting the assets, franchises, and rights of the said company and of the said receiver, and for securing and protecting the land grant and land reservation of the said company.'

In November, 1869, the present constitution of Texas was adopted, and was approved by Congress. The fifth and sixth sections of this constitution are as follows:

'SECTION 5. All public lands heretofore reserved for the benefit of railroads or railway companies shall hereafter be subject to location and survey by any genuine land certificates.

'SECTION 7. All lands granted to railway companies which have not been alienated by said companies in conformity with the terms of their charter respectively and the laws of the State under which the grants were made, are hereby declared forfeited to the State for the benefit of the school fund.'

The constitutional convention which framed this constitution passed an ordinance to the effect that all heads of families actually settled on vacant lands lying within the Memphis and El Paso railroad reserve, shall be entitled to and receive from the State of Texas 80 acres of land, including the place occupied, on payment of all expenses of survey and patent; and that all vacant lands lying within said reserve are declared open and subject to sale to heads of families actually settled on or who may actually settle on said reserve, at the price of one dollar per acre; and that said vacant lands within said reserve shall be open to preemption settlers, and subject to the location of all genuine land certificates.

There were in 1869, and were on the 20th of January, 1871, when Gray was ordered by the court to bring such suits in the name of the company as he might be advised by counsel were necessary and proper in the discharge of the duties of his office, a great number of land certificates outstanding and unlocated in Texas. Since the passing of the said ordinance, and the adoption of the said constitution, many hundreds of the holders of certificates other than those issued to the company had located their certificates on the sections reserved to the company, had returned their surveys and locations to the Commissioner of the General Land Office, and had applied for patents on the same. Before the 19th day of September, 1870, Commissioner Kuechler and Governor Davis, professing to act under the said constitutional provisions, issued 2 of such patents. On the 19th of September, 1870, to receiver filed a protest with the commissioner against issuing any further patents for lands reserved to the company, but the commissioner and governor disregarded the protest and issued 32 additional patents within the reserve; the whole of the land thus patented amounting to nearly 20,000 acres.

Hereupon on the same 20th of January, 1871, Gray, who was a citizen of New York, filed a bill in the court below against one Davis, governor of the State of Texas, and Keuchler, already mentioned as commissioner of the land office of the State. The bill-averring that 'the Memphis, El Paso, and Pacific Railroad Company' is 'a corporation created by and existing under certain statutes of Texas,' already referred to, and that it had done 'all acts and things necessary to the full and complete vesting, securing, and preserving of the franchises, rights, and privileges granted thereby'-set forth a history much as above given. It averred that the company was insolvent, and could not continue the construction of the road, and that the holders of said bonds would necessarily be remitted to the security of the mortgages; that the said security was worthless unless the receiver, under order of court, should be able to sell the franchises and property of said company to some party or parties who, by constructing the road, should acquire the lands referred to in the mortgages, and hold the same subject to the lien of them. It set forth that the general laws of Texas authorized to the fullest extent the conveyance of the franchises of a railway company by sale under execution or foreclosure; and that by act of July 27th, 1870, the Southern Transcontinental Railroad Company was created, and, as before mentioned, was expressly authorized by its charter to 'purchase the rights, franchises, and property of the Memphis, El Paso, and Pacific Railroad Company, heretofore incorporated by the State;' that the Southern Transcontinental Company stood ready to do this, and to devote the lands to be acquired by the exercise of said Memphis and El Paso franchises to the settlement of the land grant mortgage debt, provided the receiver could convey the charter, the land grant, and the grant of the land reservation unimpaired and in full force.

It set forth further, that the receiver, on negotiating for a transfer of the franchises of the company, found that the market for them was peculiar, in the following respects: it was limited, as the franchises are only of use or value to those who desired and were able to construct the road; it depended in great measure upon the reputation of and confidence in the enterprise, and a belief among capitalists, outside of the State of Texas, that the State could and would have to abide by the grants contained in the charter; that it depended peculiarly and essentially upon the preservation of the land grant and land reservation, inasmuch as the country through which the road was to be built was sparsely inhabited, without cities or towns to furnish local traffic; that Texas lands at a distance from railroads, were of but nominal value compared with lands along the line of the roads, and that the Southern Transcontinental Railroad Company, to whom the receiver chiefly looked as a purchaser, already had the right of way across the State and parallel with the route of the Memphis and El Paso charter, following 'as near as might be practicable the old survey of the Memphis and El Paso road;' making the mere right of way of the latter of comparatively little value without the lands and the reservation.

It asserted that the acts of the governor and commissioner of the land office, in executing and causing to issue patents for the reserve, were, and their continuance would be, irretrievable destruction of that portion of the franchise of the company which consisted of the right to have the odd sections of the reservation devoted exclusively to the location and patenting of the company's certificates, would destroy all confidence in the other grants of the company, as well as in the grant of the reservation, and render the franchise of the company valueless in the hands of the receiver, doing irreparable injury to the interests committed to his charge.

It set forth further that the Southern Transcontinental Company asserted and insisted to the receiver, that unless the said acts were judicially declared unlawful, and perpetually restrained, the said franchises would be valueless to them, and that they would not carry out the purchase of the same.

[It was an admitted fact in the case, that the Memphis, El Paso, and Pacific Railroad Company had never sectionized or numbered the land reservation of the same west of Brazos River, or any portion of said reservation west of said river; and that no work had been done on the road of the said company before or since the year 1861, either by granding or otherwise, except those as already affirmatively stated and set forth.]

The bill further asserted that the charter of the company was a contract between the State and the company, which contract was now in the hands of the complainant as receiver, and under direction of a court of equity, to be used for the benefit of the creditors of the company; that the said provisions of the constitution of Texas and the said ordinance of convention impaired the obligation and value of the said contract, and also of the said contracts of mortgage, and were in so far contrary to article 1, section 10, of the Constitution of the United States, which declares that 'no State shall pass any law impairing the obligation of contracts,' and were in so far null and void; and that the acts of the governor of the State and commissioner of the land office, in issuing such patents, were without authority of law, and illegal, and that any repetition of the same should be perpetually restrained. The bill prayed an injunction accordingly.

As a reason for confining the bill to the two defendants named, and amendment to the bill alleged that the complainant had applied at the General Land Office of Texas, to have the number and names of the parties who had located land certificates other than those issued to the Memphis, El Paso, and Pacific Railroad Company, on lands within and forming a part of the land reservation of the said company, and to obtain a list of the same; that he had been informed, on making such application, and by the defendant, Kuechler, the Commissioner of the General Land Office, that the number of the same was very great, to wit, many hundreds, and that a list could not be furnished without great time and labor. The amendment further alleged that parties were constantly making locations and surveys of land certificates as aforesaid on the lands of said reservation; and that parties who had made such locations and surveys had _____ months allowed them by law, after making the same, before they were required to make returns thereof to the Commissioner of the General Land Office, and that the complainant was consequently unable, and never would be able, to obtain a correct list of such parties.

To this bill the defendants demurred:

1st. Because it did not appear from it that the defendants, or either of them, had any direct or personal interest in the lands which were the subject-matters of this suit; but on the contrary that they were sued in their official capacities only; and that the lands were a part of the public domain of the State of Texas, which was not and could not be made a party to this suit.

2d. Because it did not appear that while under the amendment 11 to the Constitution of the United States [which declares that 'the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of a foreign State'], the court could have no jurisdiction as between the complainant and the State of Texas, jurisdiction existed in a suit against two of the officers of said State in their official capacity alone, to decree portions of the constitution of the State, which had been accepted by the Congress of the United States, and which the defendants were sworn to obey, void.

3d. Because it did not appear that the bill was founded on fraud, accident, mistake, trust, specific performance, or any ground of equity jurisdiction; or that the same set out any equity against the defendants whatever; on the countrary, it appeared that the bill was brought to have sections 5 and 7 of article ten of the constitution of the State of Texas decreed void.

4th. Because it did not appear that the complainant, being an officer of the court, had a right to sue the defendants therein, nor that the court could have jurisdiction as between the complainant, though a citizen of the State of New York, and the defendants, as citizens of the State of Texas, in either their respective official or individual capacities.

5th. Because the 'act incorporating the Memphis, El Paso, and Pacific Railroad Company,' and the other acts referred to in the bill, did not amount to a contract between the State of Texas and the company.

6th. Because it did not appear that any designated third person or persons was or were about to have a patent granted him or them by the defendants, and that such third person or persons was or were sought to be made a party or parties, nor that said bill was not too vague and indefinite.

7th. Because it did not appear that the creditors not specified of the company were made parties thereto, nor that the persons not specified applying for patents on locations of certificates, within the limits of the lands that were reserved, were made parties thereto; all of whom, according to the bill, had equities that ought to be determined in this suit, and hence were necessary and proper parties to this suit.

8th. Because it did not appear that the complainant had any equities that he was not bound to have litigated against such third persons not specified, and also against those not specified who had located certificates within the limits of the lands that were reserved, before he would have a right (which was not conceded) to invoke any action by means of a bill in a court of equity, in case such a court might have jurisdiction.

The demurrer was overruled, and, no answer being field, a decree pro confesso was taken for the complainant, and on the 16th of February, 1871, a final decree was granted in accordance with the prayer of the bill, to the following effect:

'That in July, 1870, and at the time of the appointment of Gray as receiver, and at the date of the decree, the company was duly possessed of the franchise and right of, and to the land grant and land reservation of the company; that the said right and the franchise of the company were unimpaired, and in full force and virtue; that the provisions of the constitution of Texas, and of said ordinance of convention, so far as they impaired, or purported to impair the said charter, land grant, or land reservation, were contrary to the provisions of article 1, section 10, of the Constitution of the United States, and were in so far, null and void; and that the defendants should be perpetually enjoined from issuing, or causing or permitting to issue, any patent of the lands of the odd sections of said reservation, except on the certificates granted to the company, or its assigns.'

From this decree appeal was taken by the defendants to this court.

Mr. T. J. Durant and Mr. G. F. Moore, for the appellants; Messrs. B. R. Curtis, J. A. Davenport, and C. Parker, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Davis v. Gray


text: Talk:Davis v. Gray

title: Talk:Davis v. Gray