text:
Swain v. Seamens

APPEAL from the Circuit Court for Wisconsin, in which court Seamens and others filed a bill against Swain, praying that a mortgage executed to him, Swain, by Medbery and wife, on certain lots, of which he, Seamens, and the others were now owners, in Wisconsin, might be cancelled.

It appeared that in 1855, Swain sold to Medbery and one Aldrich real estate in Michigan for $52,400, of which $10,000 was paid in cash, and the balance, $42,400, secured by a mortgage on the lands, payable in instalments at different times; and that on this Michigan land, foundations had been made in the previous autumn, by driving piles for the erection of a saw-mill fifty by one hundred and fifty feet in size; that Medbery was then the owner of certain lots in Wisconsin; and that on the same day and in pursuance of articles of agreement preceding the sale, to give additional security to the extent of $6666.66, he and his wife executed to Swain a mortgage on these lots as additional security.

On the Wisconsin mortgage, Swain, on the same day that it was given, indorsed the following stipulation, which gave rise to this suit:

'It is hereby agreed, that if within two years from this date the large saw-mill, fifty by one hundred and fifty feet in size, shall be property built and completed, upon the foundation commenced last fall, by driving piles, to accept in place of the within mortgage, security in proper fire insurance policy, or policies, on said large saw-mill, and thereupon to discharge the within mortgage.'

The stipulation above made was in pursuance of a contract made by the purchasers in the previous articles of agreement, to keep the buildings erected, and the large saw-mill to be erected, upon the premises, insured in some safely reputed fire insurance company or companies against fire, and that they should assign the policy or policies to Swain, and that in default thereof it should be lawful for him, Swain, to effect the insurance himself, and that the premiums and the costs and charges of his doing so, should be a lien on the mortgaged premises.

THE BILL alleged that subsequently to the execution of the agreement indorsed by Swain on the mortgage, and within the two years, there was built and completed upon the Michigan lands, and upon the foundation referred to in the said agreement, a large saw-mill, not of 50 by 150 feet, but of 78 by 100; this mill, however, being larger and of greater value and better adapted to the purposes intended than one of the dimensions originally contemplated; and that the said mill, as built and completed, was assented to and accepted by Swain as a compliance with the said written agreement indorsed on the Wisconsin mortgage; that in May, 1856, Medbery and Aldrich caused the new saw-mill to be insured in different companies named, to the extent of $6000; and that these policies of insurance were duly transferred and delivered to Swain, and accepted and assented to by him as a compliance with the agreement, and that he had them in possession; that in October, 1857, Swain caused the new mill to be further insured for one year in the name of Medbery & Aldrich, for his own use and benefit; that in September, 1858, he again caused the new saw-mill and other buildings on the premises to be again insured for one year in the name of Medbery & Aldrich, but for his own security, and paid out for premium $210; that all these insurances mentioned were obtained at the request of Swain, with the consent of Medbery & Aldrich, and upon the understanding that they should reimburse him the premiums; that in November, 1858, Swain and Medbery & Aldrich accounted respecting the amount due upon the mortgage, and that Medbery & Aldrich then paid him $15,236.06, in which sum was included, as paid by Swain during 1857 and 1858 for premiums on the new saw-mill and other property mentioned in the mortgage, the sum of $446.50, and interest.

That 'during the building and erection of the said large saw-mill upon the premises referred to in the written agreement aforesaid by said Medbery & Aldrich, the said defendant, Swain, was present at different times, and was informed by said Medbery & Aldrich, or one of them, of the intended or the then variation in the dimensions of said saw-mill from 50 by 150 feet, as specified in said written agreement, and that the said mill, as was then being built or was then completed, would be of greater value and better adapted for the uses and purposes intended than it would be if built of said dimensions as specified in said written agreement, and that the said defendant was then and there asked by said Medbery & Aldrich, or one of them, to consent to such alteration, and accept the mill as then being built, and since completed, in lieu of the one mentioned in said written agreement, and that the said defendant did then and there agree to accept, and did accept the said mill so being built, and afterwards completed, in lieu of the one mentioned in said written agreement, and as a compliance on the part of said Medbery & Aldrich with the said written agreement on his or their part.'

The mortgage on the Michigan property not being paid, Swain foreclosed it, and on a decree, finding $22,464 due, sold and purchased the premises for $19,600.

THE ANSWER denied that Medbery & Aldrich completed the mill substantially according to the agreement; denied that Swain consented to or acquiesced in the departure from the plan for constructing the mill; and, admitting that Swain did accept policies of insurance upon the mill which was built, denied that he did so in pursuance of the agreement, or that he accepted the policies as a compliance on the part of Medbery & Aldrich.

The statute of frauds of Wisconsin, it may be necessary here to state, enacts, that 'no estate, or interest in lands,. . . nor any power over or concerning lands, or in any manner relating thereto, shall be created or surrendered,. . . unless by deed or conveyance in writing, &c.;' and that 'the term lands,' shall be construed as coextensive in meaning with 'lands, tenements, and hereditaments;' and the terms 'estate and interest in lands,' to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent in lands as above defined.

The right to have the cancellation prayed for, depended therefore upon the following questions:

1. Was the mill constructed in substantial conformity with the agreement?

2. If constructed differently, did Swain consent to or acquiesce in the departure from the original plan; or3. Did Swain, after its construction, accept policies on the mill in pursuance of the agreement?

If any one of these questions were answered in the affirmative, then, obviously the mortgage was to be cancelled.

4. Unless, indeed, there was something in the statute of frauds, as above quoted, which interfered with such a conclusion.

The second and third questions were obviously questions of pure fact, and the court below, which decreed the cancellation, considered, as this court (on appeal from that decree) also considered, that the evidence made it clear, on direct proofs, that Swain had in fact acquiesced in the departure in the building of the mill, and moreover that after its construction he had accepted policies, by this means also waiving any objection to such variation.

On the two points of law it was contended by Mr. J. M. Howard, for the appellant:

1. That the contract was clear and specific to properly build and complete a mill of a fixed, intelligible, and practicable size; and that this being so the court was bound to hold the parties to it; and so bound whether the mill really built was of greater value or of less than the one contracted to be built, the creditor having a right to stipulate for just such a mill as he pleased.

2. That the agreement to modify the stipulation as to the dimensions of the mill was an agreement which did, in truth, provide for the 'surrender' of one 'estate or interest in lands' and for the 'creation' of another, and was therefore void within the Wisconsin statute of frauds.

Mr. M. H. Carpenter, contra:

1. What was the spirit of the agreement? Swain was not contracting for a mill which he was to use. He had sold the land. What he had in view was security, and security alone. Precise dimensions were of no consequence to him, value was everything; because upon value depended his security, which was the subject of the agreement. The literal requirements of the agreement would have been satisfied by the construction of a mill of any value, or of no value, provided it were 50 by 150 feet, for this is the only specification in the agreement in regard to the mill. This, however, would not have satisfied the spirit of the agreement. But if a worthless mill, 50 by 150 feet, would not have done this, then a mill of any dimensions, but of value sufficient to support an insurance equal to $6666.66, does do it; does satisfy this spirit. In other words, the true spirit of the contract, so far as regards Swain, was value, not form; and, if the mill actually constructed was of greater value than one constructed 50 by 150 feet would have been, and it could be insured to the amount of $6666.66, then such mill satisfied the agreement in its true spirit and according to the intention of the parties. But the point is not important. We do not urge it. The evidence, which the court will see absolutely demands affirmative answers to the second and third questions, renders any discussion of this first one useless. If Swain accepted the mill either by words, or by silence as expressive as words, or by receiving policies upon it, there is an end of the case.

As to the statute of frauds, no question arises under it. The point seems to be faintly urged. A variation in an agreement as to the size of a saw-mill, is not a surrender of or a creation of an interest in land. If it were, then without insisting on what cases assert, that a written or sealed instrument, even when within the statute, may be varied as to the time or manner of its performance, or may be waived altogether by a subsequent parol agreement, the conclusive answer here is, that the contract was fully executed on the side of both parties; and that Swain, after standing by and witnessing the completion of the mill with its actual dimensions, and agreeing to it, is equitably estopped from objecting to cancel the mortgage upon the ground of change in the plan. The doctrine that where a person encourages an act to be done, or in any way accepts it when done, he cannot afterwards exercise his legal right in opposition to such consent, is perfectly settled, and is applied in all cases where a party has by word or act given others reason to believe that if he had a right, he intended to waive it, and where such others would be prejudiced by his asserting his right. Authorities need not be cited for this horn-book law.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Swain v. Seamens


text: Talk:Swain v. Seamens

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title: Talk:Swain v. Seamens


text:
Swain v. Seamens/Opinion of the Court

Subsequent to the removal of the case from the State court to the Circuit Court a new bill of complaint was filed by the consent of the respondent, so that it is not necessary to refer to the proceedings in the suit before the petition for the removal was granted.

Swain, the appellant and respondent, owned certain real estate situated in the State of Michigan, and on the fourteenth of April, 1855, he sold the same to John W. Medbery and James F. Aldrich for the consideration of fifty-two thousand dollars, as appears by the pleadings.

Pursuant to the terms of the sale the purchasers said ten thousand dollars in cash when the deed was executed, and gave back a mortgage on the same real estate to secure the balance of the purchase-money, which was payable in instalments at different times. Medbery at that time was the owner of an undivided third part of certain lots situated in Milwaukee, in the State of Wisconsin, together with a flouring-mill erected thereon, called the Empire Mill, and he and his wife, on the same day and as a part of the same transaction, gave a mortgage of the same lots and mill to the appellant as additional security for the balance remaining unpaid of the purchase-money of the first-mentioned real estate.

Prior to the purchase and sale of the Michigan real estate the foundation for a saw-mill, fifty feet by one hundred and fifty feet, to be erected on the premises, had been commenced, and the mortgage, at the time the second mortgage was executed as additional security, stipulated and agreed with the mortgagors therein that if the mortgagors in the first mortgage built and completed the saw-mill there described in a proper manner upon the foundation so commenced, within two years from that date, he would accept as security in the place of that mortgage proper fire insurance policies on said saw-mill, and would thereupon cancel and discharge the said second mortgage. Reference is made to the stipulation for its exact phraseology, as more fully set forth in the record, and it will be seen that it was duly executed under the hand and seal of the appellant, and was indorsed at large on the second mortgage which was given as additional security.

Substantial compliance on the part of the mortgagors in the first mortgage with all the conditions of that agreement, and within the time therein specified, is set up by the appellees and complainants; and they also allege that the mortgagors in the second mortgage subsequently sold and conveyed, by deed of warranty, all their interest in and to the said lots and mill, and that they, the complainants, afterwards became the purchasers of the same lots and mill; and they allege that at the time the suit was commenced they were the owners of the same in fee, as alleged in the bill of complaint. They do not claim that the mill built and completed, as aforesaid, was of the precise dimensions mentioned in the agreement, but they allege that it was of larger dimensions and of greater value, and that it was better adapted to the purposes to be accomplished; and they aver that the mill as built and completed was recognized and accepted by the appellant as a compliance with that agreement.

Based on these and other allegations the prayer of the bill of complaint is that the mortgage of the lots and mill, called the second mortgage for the purpose of identification, may be ordered and decreed to be cancelled and discharged, and that the complainants may have such other and further relief as the nature of the case shall require.

I. Special reference to the evidences of title exhibited by the complainants is unnecessary, as the parties before the hearing in the Circuit Court entered into a written stipulation that the complainants at the time the bill of complaint was filed were the owners in fee of the lots in question and of the flouring-mill located on the premises. Possessed of the title to the lots and mill as previously held by the mortgagors, the claim of the complainants is that the mortgage thereon held by the appellant should be cancelled and discharged, because, as they insist, the conditions of the stipulation and agreement indorsed on the same, providing for that result, have all been fulfilled.

Such is the claim of the complainants, but the respondent denies that proposition and every element of it, and he contends that the complainants have no claim to any relief, because he insists that the mortgagors in the first mortgage never fulfilled any of the conditions specified in that stipulation and agreement; that they never built and completed the saw-mill therein described; and he expressly denies that they ever procured the policies of insurance, as alleged, or that he ever accepted the mill which they did build on the premises as a compliance with that stipulation and agreement.

Both parties were fully heard in the Circuit Court, and a decree was entered for the complainants cancelling and discharging the mortgage, and the respondents appealed to this court.

II. Relief cannot be decreed to the complainants on the ground that the mortgagors in the principal mortgage built and completed a saw-mill on the premises embraced in that mortgage, of the dimensions specified in the written stipulation and agreement which is indorsed on the second mortgage, as the bill of complaint concedes that they did not, in terms, comply with that condition, and the complainants do not claim in argument that the saw-mill which those parties built thereon was of that form or of those dimensions. Strict compliance, therefore, with the conditions of the stipulation cannot be maintained, as the proposition finds no support either in the pleadings or proofs, but is contradicted by both in every part of the record.

Proof of strict performance failing, the next proposition of the complainants is that the saw-mill which those mortgagors did build constitutes a substantial compliance with the conditions of that stipulation, but it is not possible to decide as a conclusion of law that a saw-mill seventy-eight feet in width by one hundred feet in length is a substantial compliance with an agreement which required that the saw-mill to be constructed should be of the dimensions described in that instrument, even though it be shown that it cost more and was of greater value and better adapted to the purposes to be accomplished, as the appellant having stipulated that the saw-mill to be built should be fifty feet in width by one hundred and fifty feet in length, had a right to stand upon the contract and to insist that it should be fulfilled according to its terms.

Substantial performance, it is true, is all that is required to satisfy any such agreement, and it may also be conceded that in the adjudication of controversies growing out of building contracts slight differences in the dimensions between the building constructed and the terms of the contract may, under many circumstances, be overcome by a reasonable application of that rule, but the differences in the case before the court are far too great to fall within that principle, as the effect would be to make a new contract and substitute it in the place of the stipulation executed by the parties.

III. Suppose neither of those propositions can be sustained, still the complainants contend that the decree of the Circuit Court should be affirmed, because they insist that the appellant acquiesced in the departure from the plan and dimensions as specified in the written instrument, and that he expressly accepted the said mill which those parties built and completed as a compliance with that stipulation.

Considerable conflict exists in the proofs upon that subject, and in view of that fact it becomes necessary to examine with some care the circumstances attending the transaction as bearing upon the probabilities of the case. Duplicate agreements were executed between the parties to the beforementioned deed of conveyance for the purchase and sale of the lands therein described six months before the deed of the same and the mortgage back, as aforesaid, were signed and delivered, by which the appellant agreed to sell, and the grantees in the deed and the mortgagors in the mortgage back agreed to purchase, those tracts of land, with certain exceptions, which are unimportant in this investigation, and also with certain reservations, of which two only need be noticed:

1. He reserved the house where he resided and the premises connected therewith for his benefit for one year from the date of the agreement.

2. Also the use and occupancy of the shop and fixtures connected with the same then in the possession of his brother, a deaf-mute, together with the use of the water 'as now used, or in a similar way,' so long as the said brother chooses to occupy the same, 'to be free of rent, let, or unnecessary hindrance, otherwise than if in the way of other important improvements it may be removed' sufficiently to be out of the way, 'and where he can have the same use and privileges as before.'

By the terms of the agreement as amended the purchasers were to pay ten thousand dollars in cash, and they were to give their bond for forty-two thousand dollars for the balance of the purchase-money, together with a mortgage back of the whole real estate purchased to secure the payments, and they also covenanted to give 'good and satisfactory security upon other property' for the sum of six thousand six hundred and sixty-six and two-thirds dollars. They also agreed to keep an insurance in some safe insurance company upon the insurable property on the premises, to the amount of one-third of its value, for the benefit and security of the mortgagee. No provision was made for any insurance upon the 'other property' to be conveyed to the appellant as additional security, but when the mortgage back was executed, six months later, it was therein stipulated that the mortgagors should 'well and truly keep the buildings erected, and the large saw-mill to be erected, upon the premises,' insured in some safely reputed fire insurance company or companies against loss by fire, and that they should assign the said policy or policies to the appellant or his assigns; and it contained the further stipulation that in default thereof it should be lawful for the appellant or his assigns to effect the said insurance, and that the premiums paid for effecting the same and the costs and charges should be a lien on the said mortgaged premises.

Evidently the deed of conveyance and the two mortgages, together with the stipulation indorsed on the second mortgage, must be construed together, as they constitute parts of the same transaction; and reference may also be made to the written agreement for the purchase and sale of the real estate embraced in the deed, as that agreement remained in force when the other instruments were drafted and until the transaction was finally closed.

Security it is stipulated shall be accepted 'in proper fire insurance policy or policies on said large saw-mill in place of the within mortgage,' but the amount of the insurance to be procured as the substitute for the mortgage security is not specified, and without reference to the instrument which provided for the sale and purchase of the real estate included in the deed of conveyance it would be difficult if not impossible to define that amount, but when the several instruments relating to the transaction are considered together all ambiguity at once disappears.

Viewed in the light of those suggestions the intention of the parties appears to be plain, as it is quite evident that the second mortgage constitutes the 'security upon other property' for the amount which the purchasers of the real estate agreed to give to the appellant as the seller thereof in addition to the mortgage back of the premises included in the deed of conveyance.

IV. Two conditions precedent are annexed to the supposed right of the mortgagors in the second mortgage to demand that the mortgage should be cancelled and discharged, and unless it is shown that they were waived or modified by mutual consent they must both be fulfilled or the appellant must prevail: (1.) That the large saw-mill, 'fifty by one hundred and fifty feet in size,' was properly built and completed upon the foundation previously commenced, within two years from the date of the stipulation indorsed on the second mortgage; (2.) That proper fire insurance policies on said saw-mill to the amount of six thousand six hundred and sixty-six and two-thirds dollars were procured for the benefit of the appellant, in one or the other of the two modes provided in the instrument of mortgage.

Undoubtedly the obligations to procure the policies rested on the mortgagors, but authority to procure them in case of the default of the mortgagors was vested in the appellant, and if he exercised that authority and actually procured the policies to that amount as security for their indebtedness he cannot set up the non-performance of that condition as an answer to this suit. They might procure the policies, or if they did not he might procure them, and in that event the premiums paid and the costs and charges incurred were made a lien on the mortgaged lands, and if he exercised the privilege conferred and procured the policies he is bound by his own act.

1. Compliance with the first condition is not shown, as the mill actually built is seventy-eight feet in width by one hundred feet in length, and not one hundred and fifty feet in length as described in the written stipulation, and the decree therefore must be reversed unless it satisfactorily appears that the appellant acquiesced in the change made in the plan and dimensions of the mill or accepted it after it was completed, as contended by the complainants.

Constructed as the mill was of different dimensions from the plan specified in the stipulation, it could not be erected throughout upon the foundation previously commenced, but it appears that it was erected on the same site, and that it is connected with the same water-power, and that no greater alterations were made in the foundation previously commenced than the change in the plan and dimensions of the mill required; and the proofs show to the entire satisfaction of the court that the mill as constructed cost nearly twice as much as it would if the plan indicated in the stipulation had been followed, and that it is of greater value, and that in view of the site and surrounding circumstances, it is much better adopted to the purposes to be accomplished.

Intended for three gangs of saws with other machinery incident to such a saw-mill of modern construction, it seems reasonable to suppose that the increase in the width of the mill, as compared with the dimensions given in the stipulation, would much more than compensate for the diminution in the length of the structure, as the length is still sufficient, and the effect of the alteration is to give more space where it is most needed.

Even the answer alleges that the second mortgage was given as a performance of the agreement to furnish additional security, and the appellant admits that he agreed to accept the policies of insurance on the saw-mill in the place of the mortgage, provided the mill was built of the size specified in the stipulation and on the foundation commenced before the agreement for the sale and purchase of the real estate was executed, but he utterly denies that he acquiesced in the change made in the plan and dimensions of the mill, or that he ever accepted or agreed to accept the mill as built and completed. Three witnesses, however, testify to the contrary, and a fourth testifies that the appellant was two or three times at that place and once in the mill 'during the building of the mill,' and that he never made any objections to him or in his presence as to the change in the dimensions of the mill. Two of these witnesses are the mortgagors in the first mortgage, who built and completed the saw-mill; the third was a partner with them in the lumber business, and the fourth is the mill-wright who superintended the construction of the saw-mill and put in the machinery, and in the judgment of the court they are entitled to credit. They speak of his presence at the mill during the progress of the work and after the mill was completed, and the first three give the details of the conversation they had with him, showing to a demonstration that, if they are to be believed, the appellant not only acquiesced in the change in the plan as proposed, but that he in terms accepted the saw-mill erected on the premises as built and completed.

Opposed to the statements of those witnesses is the negative averment of the answer and the positive denial of the appellant that any such interviews ever took place, or that he ever gave utterance to any such sentiments, but it is a sufficient response to those denials of the appellant to say that his testimony is not of a character to discredit the proofs introduced by the complainants. Attempt is also made to contradict the complainants' witnesses as to the time when they say they saw the appellant at the saw-mill or in that vicinity, but the error, if it be one, is not sufficient to discredit the witnesses, as it is quite immaterial whether the interview was at the time stated or a week or two or even a month earlier. Other considerations, such as the necessity for the removal of the shop of the deaf-mute brother, are also invoked as tending to show the improbability that the appellant should have assented to the alteration in the plan of the mill, but it is unnecessary to enter into the details, as the court is of the opinion that the allegations of the bill of complaint in that behalf are fully proved by the direct proofs.

Next objection of the appellant is that the agreement to accept the mill as built and completed, even if made as supposed, was void as within the statute of frauds of that State, because it was not in writing; but it becomes necessary before considering that question to determine whether the second condition specified in the stipulation was fulfilled so that the mortgagors in the second mortgage, or those claiming under them, have the right, if the agreement to accept the saw-mill as built and completed is operative, to demand that the second mortgage shall be cancelled and discharged.

2. Whether the mortgagors in the principal mortgage kept the insurable property included in that mortgage insured or not is not a question in this case, nor is it a question at this time whether they kept the saw-mill insured as agreed in that instrument, but the question to be decided is whether the mortgagors, within two years from the date of the stipulation, procured for the benefit of the mortgagee proper fire insurance policies thereon to the requisite amount, or whether the mortgagee within that period procured the same for his own benefit, as required or permitted in the second condition of that stipulation, when construed in connection with the provision upon the subject contained in the principal mortgage. Proper fire insurance policies might be procured for the purpose, as before explained, by the mortgagors or by the mortgagee, and inasmuch as the premiums paid and the costs and charges incurred were, in the latter event, to be added to and considered a part of the debt secured by mortgage, it cannot make any difference whether they were actually obtained by the one or the other of those parties. Such being the rule to be applied, the question presented for decision is purely one of fact depending upon the proofs in the case, the results of which, as they appear to the court, will be briefly stated.

Three policies of insurance on the saw-mill were procured, in the year 1856, by the mortgagors for the benefit of the mortgagee, to wit: two thousand dollars in the AEtna Insurance Company, two thousand dollars in the Washington Union Insurance Company, and two thousand dollars in the Jackson Mutual Insurance Company; and the proofs show that the policies were delivered to the appellant, and that he accepted them without objection. Added together, the sum is a fraction less than the required amount, but the policies were accepted without objection, and none is now made on that account.

Policies on the saw-mill were obtained, the succeeding year, by the appellant, for the same amount, to wit: fifteen hundred dollars in the Phoenix Insurance Company, three thousand dollars in the Washington Union Insurance Company, and fifteen hundred dollars in the AEtna Insurance Company; and the proofs show that the premiums which he paid for the same were added to the mortgage debt, and were ultimately adjusted by the mortgagors.

Insurance on the saw-mill for the year 1858 was also obtained by the appellant for the same amount, and the exhibits in the record show that the money he paid for the premiums was repaid to him by the mortgagors. They also paid him at the same time fourteen thousand six hundred and seventy-three dollars and forty-three cents, which was indorsed on the bond given for the balance of the purchase-money, and which was secured by the mortgage of the same real estate.

V. All of these policies, however, were for the term of one year, and the next objection is that they cannot be regarded as fulfilling the second condition of the stipulation on that account, as they would expire before some of the instalments of the bond fell due; but the objection is not entitled to weight for several reasons: (1.) Fire policies are usually issued for one year, and there is nothing in the stipulation to justify the conclusion that the policies were to be in any other than the usual form. (2.) When the first three were obtained they were accepted by the appellant without objection. (3.) He asked and obtained leave of the mortgagors to procure the future policies, and when he came to exercise that privilege he obtained them in the same form. (4.) Because, having been intrusted, at his own request, with the business of procuring the requisite insurance, it was his own fault if the business was neglected or was not properly transacted. (5.) He cannot impute fault to the mortgagors, as they paid on the mortgage a sum nearly equal to the anticipated cost of the saw-mill, especially as they had consented to leve the business of insurance to him, and as he was expressly authorized to add the premiums to the mortgage debt, and as all sums paid for that purpose were declared to be a lien on the mortgaged lands. (6.) If he desired that the insurance should be continued, and did not wish to transact the business, he should have given notice to the mortgagors; but the probability is that he felt less interest in the subject on account of the large payment which had been made on the mortgage debt.

VI. 1. Although the fee of the mortgaged premises remains in the mortgagor, under the laws of that State, till after foreclosure and sale, still no doubt is entertained that the stipulation to accept proper fire insurance policies on the saw-mill in the place of the mortgage was an agreement providing for the surrender of an 'estate or interest in lands,' and, therefore, was an agreement within the statute of frauds of that State.

Nothing is left for construction, as the subsequent act provides that the term 'lands' shall be construed as coextensive in meaning with lands, tenements, and hereditaments, and that the terms 'estate and interest in lands' shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent.

But the stipulation in this case to accept the policies of insurance on the saw-mill as security in the place of the second mortgage, and thereupon to cancel and discharge that instrument, is in writing, and having been executed as a part of the bargain of purchase and sale of the real estate, it rests upon a sufficient consideration, and is valid and binding. Argument upon that topic is unnecessary, as it is too plain for contention; but the suggestion which the appellant intends to make is that the agreement subsequently made to modify the stipulation as to the dimensions of the mill is within the statute of frauds of that State, and null and void. Views of the complainants are that an agreement, though in writing and under seal, may in all cases be varied as to time or manner of its performance, or may be waived altogether by a subsequent oral agreement; but the court is of a different opinion, if the agreement to be modified is within the statute of frauds.

2. Numerous authorities sanction the principle advanced by the complainants in cases not within the statute of frauds, and which fall within the general rules of the common law, and in such cases it is held that the parties to an agreement, though it is in writing, may, at any time before the breach of it, by a new contract not in writing, modify, waive, dissolve, or annul the former agreement, if no part of it was within the statute of frauds.

Reported cases may also be found where that rule is promulgated without any qualification; but the better opinion is, that a written contract falling within the statute of frauds cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing. Express decision in the case of Marshall v. Lynn, is that the terms of a contract for the sale of goods falling within the operation of the statute of frauds cannot be varied or altered by parol; that where a contract for the bargain and sale of goods is made, stating a time for the delivery of them, an agreement to substitute another day for that purpose must, in order to be valid, be in writing.

Suggestion may be made that all the cases were cases at law; but the same rule prevails in equity, as appears by the highest authority.

Regarded, therefore, as a mere executory agreement to accept the mill when built and completed, it is clear that the statute of frauds would be a good defence to a suit for the breach of it; but it cannot be viewed in that light, as it was fully executed on the part of the mortgagors, and was in fact fully executed on the part of the appellant.

3. He is not sued for a breach of the agreement to accept the mill as built and completed; but the suit is to compel him to cancel and discharge the mortgage as agreed in the written stipulation. Called upon the plead to the bill of complaint, he sets up the defence that the dimensions of the mill vary from those specified in the stipulation, to which the complainants reply that he acquiesced in the change at the time the work was done, and that he accepted the mill as built and completed, and they prove the allegations to the entire satisfaction of the court. They built and completed the mill seventy-eight feet in width by one hundred feet in length, at an expense exceeding thirty thousand dollars, and the appellant not only accepted it when completed as a compliance with the stipulation, but he also accepted the policies of insurance procured on it as security in the place of the second mortgage, and he cannot now be permitted to avoid the true issue, nor to divest the transaction of its real character in order that he may set up the statute of frauds.

VII. 1. Even part performance is often admitted in equity as an answer to the statute; but it is not necessary to invoke that principle in this case, as it is clear that the appellant acquiesced in the changes made in the plan, and that the mill, as built and completed, was accepted by him as a compliance with the stipulation.

2. Estoppel is also set up by the complainants as an answer to the defence of the statute, of frauds, and, in view of the facts, the court is of the opinion that it is a complete answer to that defence. He sold the real estate for fifty-two thousand four hundred dollars, received in cash ten thousand dollars, and the purchasers gave a mortgage on the same real estate for the balance of the purchase price. They paid towards the mortgage seventeen thousand six hundred and seventy-three dollars, exclusive of five hundred and seventy-six dollars and seventy-three cents for insurance premiums and for taxes, and erected the saw-mill at the cost of thirty-two thousand dollars, and the record shows that the appellant foreclosed the mortgage, and, with two other persons, became the purchaser of the entire property and improvements, subject to the mortgage, for the sum of nineteen thousand six hundred dollars, and has a decree for the deficiency of two thousand eight hundred and sixty-four dollars and eleven cents, for which he proposes to foreclose the second mortgage now under consideration.

3. Beyond doubt the mortgagors in the first mortgage, one of whom was the principal mortgagor in the second mortgage, built and completed the saw-mill in the full belief, induced by the conduct and declarations of the appellant, that it would be accepted as a compliance with the stipulation indorsed on the second mortgage. Taken as a whole, the proofs satisfy the court that his conduct and declarations let them to believe that he was content with the change made, and that he would readily acquiesce in their doings when the mill was completed, and, if so, he cannot be heard to allege or prove the contrary to the prejudice of their rights.

Where a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the other party to change his position, so that he will be pecuniarily prejudiced by the assertion of such adversary claim.

DECREE AFFIRMED.

title: Swain v. Seamens/Opinion of the Court


text: Talk:Swain v. Seamens/Opinion of the Court


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The Justices v. Murray

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

Patrie brought a suit for an assault and battery and false imprisonment against Murray and Buckley in the Supreme Court of the Third District of New York; to which the defendants pleaded the general issue, and pleaded further as a special defence that the said Murray was marshal of the Southern District of New York, and the said Buckley his deputy; and that, as such marshal, he, Murray, was, by order of the President, on or about the 28th August, 1862, directed to take the plaintiff into custody; that the said Buckley, as such deputy, was directed by him, the marshal, to execute the said order; and that, acting as such deputy, and in pursuance of his directions, he, Buckley, did, in a lawful manner, and without force or violence, take the said Patrie into custody; that during all the time he was in custody he was kept and detained in pursuance of said order of the President, and not otherwise.

In December following a writ of error was issued to the Supreme Court of the Third District, to remove the cause to the Circuit Court of the United States for the Southern District of New York. The writ was issued under the 5th section of an act of Congress, passed March 3d, 1863, entitled 'An act relating to Habeas Corpus, and regulating proceedings in certain cases.' The 5th section of this act provides as follows:

'If 'any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any officer, civil or military,'. . . or 'for any arrest or imprisonment made'. . . 'at any time during the present rebellion, by virtue or under color of any authority by or under the Fresident of the United States,'. . . 'it shall'. . . 'be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to remove the same to the Circuit Court of the United States for that district in which such judgment shall have been rendered; and the said Circuit Court shall thereupon proceed to try and determine the facts and law in such action in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding."

The State court refused to make a return to the writ of error. Thereupon an alternative mandamus was issued by the Circuit Court of the United States, to which a return was made setting forth the suit, trial, and judgment already referred to. To this there was a demurrer and joinder; and, after due consideration, the demurrer was sustained, and a judgment for a peremptory mandamus rendered. From this judgment a writ of error was taken to this court.

The case was argued on two occasions, and each time with ability and care. On the first by Mr. A. J. Parker, for the plaintiffs in error, and by Mr. Evarts, then Attorney-General, contra; and at this term, by Mr. Parker again, on one side as before, and by Mr. Hoar, now Attorney-General, with Mr. Field, Assistant Attorney-General, on the other. On the second occasion the argument was confined to two questions submitted by the court:

1. Whether or not the act of Congress of March 3d, 1863, providing for the removal of a cause, after judgment by a State court, to the Circuit Court of the United States, for a new trial, is an act in pursuance of the Constitution of the United States?

2. Whether or not the provision in the seventh amendment of the Constitution of the United States, which declares that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law, applies to the facts tried by a jury in a cause in a State court?

Mr. Justice NELSON delivered the opinion of the court.

title: The Justices v. Murray


text: Talk:The Justices v. Murray

title: Talk:The Justices v. Murray


text:
The Justices v. Murray/Opinion of the Court

This case has received the most deliberate consideration of the court. As we have arrived at the conclusion that the seventh amendment, upon its true construction, applies to a cause tried by a jury in a State court, this opinion will be confined to considerations involved in the second question submitted to us for argument at the bar. The decision of that in the affirmative disposes of the case.

The seventh amendment is as follows: 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the common law.'

It must be admitted that, according to the construction uniformly given to the first clause of this amendment, the suits there mentioned are confined to those in the Federal courts; and the argument is, perhaps, more than plausible, which is that the words, 'and no fact tried by a jury,' mentioned in the second, relate to the trial by jury as provided for in the previous clause. We have felt the full force of this argument, and if the two clauses were necessarily to be construed together, and to be regarded as inseparable, we think the argument would be conclusive. But this is not the view that has been taken of it by this court. In Parsons v. Bedford et al., Mr. Justice Story, in delivering the opinion of the court, referring to this part of the amendment, observed, 'that it should be read as a substantial and independent clause;' and that it was 'a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner.' The history of the amendment confirms this view. He further observed that 'the only modes known to the common law to re-examine such facts was the granting of a new trial by the court where the issue was tried, or the award of a venire facias de novo, by the appellate court, for some error of law that had intervened in the proceedings.'

Another argument mainly relied upon against this construction is that the ten amendments proposed by Congress, and adopted by the States, are limitations upon the powers of the Federal government, and not upon the States; and we are referred to the cases of Barron v. The Mayor and City Council of Baltimore; Lessee of Livingston v. Moore and others; Twitchell v. The Commonwealth, as authorities for the position. This is admitted, and it follows that the seventh amendment could not be invoked in a State court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in the court below. But this would seem to be the only consequence deducible from these cases or from the principles they assert. They have no pertinent, much less authoritative, application to the question in hand. That question is not whether the limitation in the amendment has any effect as to the powers of an appellate State court, but what is its effect upon the powers of the Federal appellate court? Is the limitation confined to cases of writs of error to the inferior Federal courts, or does it not also apply to writs of error to State courts in cases involving Federal questions? The latter is the precise question for our determination. Now, it will be admitted that the amendment, in terms, makes no such discrimination. They are: 'and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.' It is admitted that the clause applies to the appellate powers of the Supreme Court of the United States in all common law cases coming up from an inferior Federal court, and also to the Circuit Court in like cases, in the exercise of its appellate powers. And why not, as it respects the exercise of these powers in cases of Federal cognizance coming up from a State court? The terms of the amendment are general, and contain no qualification in respect to the restriction upon the appellate jurisdiction of the courts, except as to the class of cases, namely, suits at common law, where the trial has been by jury. The natural inference is that no other was intended. Its language, upon any reasonable, if not necessary, interpretation, we think, applies to this entire class, no matter from what court the case comes, of which congizance can be taken by the appellate court.

It seems to us also that cases of Federal cognizance, coming up from State courts, are not only within the words, but are also within the reason and policy of the amendment. They are cases involving questions arising under the Constitution, the laws of the United States, and treaties, or under some other Federal authority; and, therefore, are as completely within the exercise of the judicial power of the United States, as much so as if the cases had been originally brought in some inferior Federal court. No other cases tried in the State courts can be brought under the appellate jurisdiction of this court or any inferior Federal court on which appellate jurisdiction may have been conferred. The case must be one involving some Federal question, and it is difficult to perceive any sensible reason for the distinction that is attempted to be made between the re-examination by the appellate court of a case coming up from an inferior Federal, and one of the class above mentioned coming up from a State court. In both instances the cases are to be disposed of by the same system of laws and by the same judicial tribunal.

Mr. Hamilton, in the 82d number of the Federalist, speaking of the relation that would subsist between the National and State courts in the instances of concurrent jurisdiction, observes that the Constitution, in direct terms, gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of Federal cognizance in which it is not to have an original one, without a single expression to confine its operations to the inferior Federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, he observes, and from the reason of the thing, it ought to be construed to extend to the State tribunals. 'The courts of the latter will, of course, be National auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of National justice and the rules of National decisions.'

This idea of calling to the aid of the Federal judiciary the State tribunals, by leaving to them concurrent jurisdiction in which Federal questions might be involved, with the right of appeal to the Supreme Court, will be found to be extensively acted upon in the distribution of the judicial powers of the United States in the act of 1789, known as the Judiciary Act. Besides the general concurrent jurisdiction in the Judiciary Act, a striking instance of this is found in the 33d section of the act, which provides 'that for any crime or offence against the United States the offender may, by any justice or judge of the United States, or by any justice of the peace or other magistrate of any of the United States where he may be found, agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence.' And a series of acts were also passed in the earlier sessions of Congress, conferring upon the State and county courts cognizance to hear and determine upon offences, penalties, and forfeitures, and for the collection of taxes and duties arising and payable under the revenue laws, or under a direct tax or internal duties, and which were continued down till the State courts refused to entertain jurisdiction of the same. The State courts of New York continued to exercise jurisdiction under these acts till as late as 1819.

The reasons, therefore, for the application of this clause of the seventh amendment to cases coming up for review from the State courts were as strong as in cases from the inferior Federal courts, and the history of the amendment will show that it was the apprehension and alarm in respect to the appellate jurisdiction of this court over cases tried by a jury in the State courts that led mainly to its adoption.

The appellate jurisdiction of this court, after defining its original jurisdiction, is as follows:

'In all other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make.'

Mr. Hamilton, in the 81st number of the Federalist, after quoting the provision observes: 'The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law, but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury in favor of the civil law mode of trial.' And the then enters into an argument to show that there is no real ground for alarm or apprehension on the subject, and suggests some regulations by Congress by which the objections would be removed. He observes, also, that it would have been impracticable for the Convention to have made an express exception of cases which had been originally tried by a jury, because in the courts of some of the States all causes were tried in this mode, and such exception would preclude the revision of matters of fact, as well where it might be proper as where it might be improper. He then suggests that Congress has full power to provide that in appeals to the Supreme Court there should be no re-examination of the facts where the causes had been tried by a jury according to the common law mode of proceeding. Now, it is quite clear that the restrictions upon this appellate power by Congress, pointed out by Mr. Hamilton for the purpose of quieting the public mind, had a direct reference to the revision of the judgments of the State courts as well as the inferior Federal, and what is significant on the subject is, that the amendment submitted in the first session of Congress by Mr. Madison adopts the restriction suggested by Hamilton, and almost in the same words. We will simply add, there is nothing in the history of the amendment indicating that it was intended to be confined to cases coming up for revision from the inferior Federal courts, but much is there found to the contrary.

Our conclusion is, that no much of the 5th section of the act of Congress, March 3d, 1863, entitled 'An act relating to habeas corpus, and regulating proceedings in certain cases,' as provides for the removal of a judgment in a State court, and in which the cause was tried by a jury, to the Circuit Court of the United States for a retrial on the facts and law, is not in pursuance of the Constitution, and is void.

The judgment of the court below must, therefore, be REVERSED, the cause remanded with direction to dismiss the writ of error and all proceedings under it.


text: Talk:The Justices v. Murray/Opinion of the Court


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Public Schools v. Walker

ERROR to the Supreme Court of Missouri; the controversy being one of those, quite numerous in this court, growing out of the various acts of Congress intended to settle the land titles originating in the lands of Louisiana prior to its purchase by our government from France. The case was thus:

The President and Directors of the St. Louis Public Schools brought suit, in the St. Louis Land Court of Missouri, against Walker and another, to recover certain lands situate in the city of St. Louis.

The title of the plaintiffs, who represented the common schools of St. Louis, rested on two acts of Congress. The first of these was the act of June 13th, 1812, the first section of which, after confirming the common field lots and commons to certain towns and villages, of which St. Louis is one, directs the deputy surveyor of the Territory to survey and marke the out-boundary lines of said several towns so as to include the out-lots, common field lots, and commons thereto respectively belonging.

The second section, under which the plaintiffs' claim arose, enacted that:

'All town or village lots, out-lots, or common field lots, included in such survyes, which are not rightfully owned or claimed by any private individuals, or held as commons belonging to such towns or villages, or that the President of the United States may not think proper to reserve for military purposes, shall be, and the same are hereby, reserved for the support of schools in the respective towns or villages aforesaid; provided, that the whole quantity of land contained in the lots reserved for the support of schools in any one town or village shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village.'

The other act was that of July 27th, 1831. The second section of this act, referring to the section just cited from the act of 1812, declares:

'That the United States do hereby relinquish all their right, title, and interest in and to the town and village lots, out-lots, and common field lots, in the State of Missouri, reserved for the support of schools in the respective towns and villages aforesaid, by the second section of the above-recited act of Congress, and that the same shall be sold or disposed of, or regulated for the said purposes, in such manner as may be directed by the legislature of the State.'

It was conceded that, by the survey made under the first section of the act of 1812, the lot in controversy was found to be within the out-boundary of the town of St. Louis and its common field lots, commons, &c. It was also admitted that by appropriate legislation of the State the plaintiffs have become invested with such right as the State could give by virtue of the last-recited act of Congress.

The surveyor-general at St. Louis, on demand of the plaintiffs, on the 3d June, 1861, had caused this lot to be surveyed and certified to them, as a lot embraced within and covered by the reservation for school purposes, and on this survey and certificate and the acts aforesaid they rested their title.

Such was the plaintiffs' case.

The defendant, who had been in possession by himself and those under whom he claimed from 1844 till the beginning of this suit in 1864, now asserted that this land was, at the time the act of 1812 was passed, rightfully claimed by Joseph Brazeau, a 'private individual,' and was, therefore, not relinquished to the State by the act of 1831.

In support of this assertion he showed that, long before the act of 1812, Brazeau had filed with a board of commissioners, organized under the act of 1805 to report on such cases, his claim and the evidences of it furnished him by the colonial authorities. Though this first board of commissioners reported against the claim because he had not proved the inhabitancy and cultivation prior to 1803, which the act of 1805 required, yet Congress, which had never made the reports of these commissioners final, but in all the numerous acts regulating the various commissions appointed for this purpose, had reversed to itself the power to confirm or reject their reports, did by the third section of the act of 1812 provide for a further hearing on this question of inhabitancy and cultivation. It also in every act on the subject reserved from sale the lands for which claims had been filed with the recorder of land titles, whether confirmed or not.

Several changes were made in the tribunals authorized to act on these claims, and for a time there was none with such authority.

An act of 1824 directed that individual claims should be presented before a court of the United States within two years, and that unless so presented they should be barred. The time was extended, by subsequent act, to May 26th, 1829. Brazeau did not present his claim under these directions.

Finally, however, by an act of 1832, another commission was organized. The recorder of land titles, in whose office all the old undetermined cases like Brazeau's still remained on file, and two other commissioners, were directed by this act of 1832, to examine all those unconfirmed claims in his office, and classify and report them to Congress. They were to report what claims would have been confirmed under Spanish laws and usages, and what were, in their opinion, destitute of merit under that rule. And while no new claim was to be admitted, they might raise new testimony in addition to that already on file in such cases. This commission passed favorably on Brazeau's claim, the necessary proof of occupancy and cultivation having been made, and reported it to Congress, and that body confirmed the claim by act of July 4th, 1836.

The St. Louis Land Court gave judgment for the defendant, and the Supreme Court having affirmed, the case was now here for review.

The case was elaborately argued by Messrs. Blair and Dick, for the plaintiff in error. They relied largely:

1st. On the fact that Brazeau had not presented his claim as directed to do by the act of 1824, and its supplement; that not having done so his power to establish a right was barred, and ended in 1829; that being then without any rightful claim, the act of 1831 vested the title in the State for the use of the schools.

2d. On the survey made by the surveyor-general and mentioned, supra, p. 284, as part of the plaintiffs' title, and upon this declaration made by this court in Kessell v. Public Schools, as to the legal effect of such a document:

'We are furthermore of opinion, that the certificate of the surveyor-general above set forth, and which was accepted by the grantees, is record evidence of title, by the recitals in which the government and the board of school directors are mutually bound and concluded. And this instrument, declaring that the land described was reserved for the support of schools, and the courts of justice having no power to revise the acts of the surveyor-general, under these statutes, it is not open to them to inquire whether the lands set apart were, or were not, lots of the description referred to in the statutes. The parties interested have agreed that this was a school lot, and here the matter must rest, unless some third person can show a better title.'

Messrs. Todd, Glover, and Shepley, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Public Schools v. Walker


text: Talk:Public Schools v. Walker

title: Talk:Public Schools v. Walker


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Public Schools v. Walker/Opinion of the Court

It is not to be denied that if the lot in question was one of the class which, by the act of 1812, was reserved for the support of shools, that the title was vested in the State by the act of 1831, and by the State in the plaintiffs.

On the other hand, if the lot in question was not of the class reserved for support of schools by the act of 1812, then nothing in the act of 1831 has any effect upon it, and whoever may be the true owner, neither the State or school directors acquired any interest by the act of 1831.

Nothing can be plainer than that the act of 1831 was intended to relinquish the title which remained in the United States to the same lots and lands which had been reserved for the support of schools by the act of 1812, and it relinquished title to nothing else. The one act is the exact complement of the other. The one reserved a class of lots, fields, and commons for the support of schools; the other relinquished to the State the title of the lands and lots so reserved for the same purpose. We are compelled, then, to look to the act of 1812 to ascertain precisely what was reserved.

This presents no patent ambiguity, for 'all town or village lots, out-lots, or common field lots,' included in such surveys, are so reserved, with the exception of three classes. These are:

1st. Such as are rightfully owned or claimed by any private individuals.

2d. Or held as commons belonging to such towns or villages.

3d. Or that the President may think proper to reserve for military purposes.

If the lot in question was covered by either of these exceptions, then it was not reserved by the act of 1812, and was not relinquished to the State by the act of 1831.

The inquiry is still further narrowed in the present case by the fact that it is only claimed to be excluded from the class reserved, because it was rightfully claimed by a private individual.

It will be seen by reference to the statement of the defendants' title, that at the time the act of 1812 made an exception of lots rightfully claimed by private individuals, Joseph Brazeau was asserting a claim before the proper tribunal for this land; that his claim was never abandoned; and that, finally, a competent tribunal, authorized by Congress, decided his claim to be a rightful one, and that Congress, by statute, confirmed this decision.

Unless it is shown in some other way that Brazeau's claim was not a rightful one, we think the plaintiffs have no title; for it is too clear for argument that no land was relinquished to the State by the act of 1831 which was not reserved for schools by the act of 1812, and is equally clear that no land rightfully claimed by a private individual was so reserved.

Two propositions are urged with zeal and ability, as counteracting the effect of Brazeau's claim, on the rights of plaintiffs.

1. It is said that, by virtue of the act of Congress of 1824, and other amendatory acts, his claim was barred.

The act of 1824 directed that all such individual claims should be presented before a court of the United States, and that unless presented to the court within two years they should be barred; and though the time was subsequently extended, Brazeau did not present his claim within it.

It may be conceded that between this time and the passage of the act of 1832 organizing another board, Brazeau had no claim which he could lawfully assert to this land; and it is said that while his claim was in this condition, the act of 1831 vested the title in the State for the use of schools.

But as the act of 1831 only relinquished the title to lots reserved by that of 1812, and as that reserved none rightfully claimed by private individuals, we must inquire whether the fact that Brazeau had failed to assert his claim within the time limited by Congress, proved that his claim was not rightful. For as a board of commissioners has said that it was rightful, and as Congress has also said it was, this proposition can only be refuted by holding that his failure to assert it for a time, and the declaration of Congress that he could not be heard to assert it afterwards, proved that it was not rightful.

We do not think it had this effect. If it be treated as a statute of limitation, it is not the doctrine on which such statutes are founded, that lapse of time proves the wrongfulness of the claim. They are made for the repose of society and the protection of those who may, in that time, have lost their means of defence. It is a mere declaration of the law-making power to the plaintiff, that having voluntarily slept so long upon his rights, he shall not now be permitted to assert them, to the injury of individuals and the disturbance of society.

In the class of cases before us, the act was nothing more than the declaration of the sovereign power, who at the same time held the fee of the land, that if you establish your equitable claim to the land within a certain time, I will confer the title; if you do not, I will not afterwards hear you assert it. But it was competent for the sovereign, after this forfeiture had occurred by laches, to release it, to consent to hear the claimant, and to give him another chance to prove the rightfulness of his claim. And this is what Congress did by the act of 1832.

It is a little remarkable that Congress did not require in this act that these parties who had been barred by the former acts, should now appear and renew their claim, but it directed the recorder of land titles, in whose office all the old cases like Brazeau's still remained on file, and two other commissioners, to examine all those unconfirmed claims and classify and report them to Congress. They were to report what claims would have been confirmed under Spanish laws and usages, and what were, in their opinion, destitute of merit under that rule. And while no new claim was to be admitted, they might receive new testimony, in addition to that already on file in such cases.

It is very clear that Congress, by this act, intended to remove the restriction on the right to assert these claims imposed by the act of 1824, so far as it concerned those that had been filed in due time with the recorder. We can entertain no doubt of their right to do this, and we do not see that they lost this right by a gratuitous relinquishment of the interest of the United States in lots not rightfully claimed by any private individual. They still had, as we think, the right to ascertain whether these old claims, long known and on the public files, were rightful claims or not.

2. It is said that the survey made for plaintiffs of this lot by the surveyor-general, and his certificate that the lot was of those reserved for public schools by the act of 1812, is conclusive, and cannot be disputed.

We do not know of any statute or of any rule of law which should give it this effect. The survey is made ex parte by an officer who has no control of the evidences of claims filed with the recorder of land titles.

Being an officer of the government, it is possible that this certificate of a survey, which he is authorized to make, may bind the United States, but we cannot see how it can determine, conclusively, the rights of private persons, which are not considered by him, and still less the rightfulness of a claim submitted by Congress to other tribunals for investigation, and reserved to itself for final approval or rejection.

The case of Kissell v. Public Schools, is very much relied on to establish the conclusiveness of this certificate. That was a contest between the public schools and a person claiming under the pre-emption laws. The court, in discussing the effect of a certificate of survey in favor of the schools, precisely like the one in the present case, said that, as to the public schools, they were bound by it, and so was the government. 'The parties interested,' says the court, 'have agreed that this land was a school lot, and here the matter must rest, unless some third person can show a better title.' The court held, in that case, that Kissell did not show a better title, by a common entry and purchase as pre-emptor, because the land, being within the limits of the town of St. Louis, was reserved from sale. The clear implication here is, that when there is a better title, the certificate of survey is not conclusive against that title.

JUDGMENT AFFIRMED.


text: Talk:Public Schools v. Walker/Opinion of the Court


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Burnett v. Caldwell

ERROR to the District Court for the Northern District of Georgia, the case being this:

In 1850, one Rogers being in possession of certain premises for some years, sold them to persons from whom they passed to the Rome Female College. And this college executed a somewhat peculiar deed conveying them to Caldwell. Caldwell being thus in possession and claiming title, sold them in January, 1864, to a certain Vliet. Vliet paid him $4000, and gave him two promissory notes, each for $7000, payable in the course of the year at dates fixed. Caldwell at the same time executed to Vliet a title bond in the penal sum of $36,000, reciting the payment of the $4000 and the delivery of the notes, and conditioned that if Vliet should pay the notes at maturity and Caldwell should thereupon make to him 'a good warranty title in fee simple' for the premises, the bond should be void. The bond was silent as to the right of Vliet to occupy the premises, but Caldwell put him in possession. Vliet transferred the bond and delivered possession to Burnett. Nothing having been paid on the notes, and more than three years having expired since the maturity of the one last payable, Caldwell brought ejectment against Burnett to recover possession of the property. He had given him no notice to quit.

On the trial, Burnett the defendant being on the stand, his counsel proposed to ask him what he had given for the property, how much he had paid and in what manner, and whether he had paid a valuable consideration. The court, on objection, overruled the interrogatory.

In addition to this, various questions were made before the court as to whether Rogers had or had not a valid title by virtue of the statute of limitations, whether Caldwell had or had not a perfect paper title, and whether the deed executed by the trustees of the Rome Female College was valid or not.

The court (Erskine, J.) gave instructions on all those points, but in addition instructed the jury that 'if a purchaser failed to comply with the terms of a contract under which he obtained possession, the vendor was at liberty to treat the contract as rescinded, and regain the possession by an action of ejectment; that in such case neither a demand of possession nor a notice to quit was necessary; that the ejectment here was not brought to enforce the contract of sale, but to regain possession of the land acquired under it.'

Verdict and judgment went for the plaintiff, Caldwell; and the defendant, Burnett, brought the case here.

Mr. Thompson, for the plaintiff in error, went into argument to show that the instructions as to the statute of limitations-as to Caldwell's paper title, and the deed executed by the trustees of the Rome Female College-were erroneous; and particularly to show that the instructions above quoted, as to the right to bring ejectment and this without notice, were so.

Mr. J. E. Brown submitted an able brief contra, along with a MS. report of a late case, McHan v. Stansel, in the Supreme Court of Georgia, deciding that, in a case like the present, ejectment might be brought without any notice to quit.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Burnett v. Caldwell


text: Talk:Burnett v. Caldwell

title: Talk:Burnett v. Caldwell


text:
Burnett v. Caldwell/Opinion of the Court

This is a writ of error to the District Court of the United States for the Northern District of Georgia. The suit was an action of ejectment, prosecuted by the defendant in error to recover possession of the premises described in his declaration. The view which we take of the case renders it unnecessary to consider several of the exceptions which are found in the record. The facts as they appear, and which are undisputed, are as follows:

Caldwell was in possession, claiming title. On the 26th of January, 1864, he sold to Vliet, who paid him $4000, and executed to him two promissory notes, each for $7000, payable, respectively, on the 1st of April and the 1st of July following, with interest from date. Caldwell at the same time executed to Vliet a title bond in the penal sum of $36,000. It recited the payment of the $4000 and the execution of the notes, and was conditioned that if Vliet should pay the notes at maturity, and Caldwell should thereupon make to him 'a good warranty title in fee simple' for the premises, the bond should be void. The bond was silent as to the right of Vliet to occupy the premises, but Caldwell put him in possession. Vliet transferred the bond and delivered possession to Burnett. Nothing having been paid on the notes, and more than three years having expired since the maturity of the one last payable, Caldwell instituted this suit to oust Burnett and recover back possession of the property.

The legal principles which must govern the determination of the case are all well settled. If the contract in such cases be silent as to possession by the vendee, he is not entitled to it. If the contract stipulates for possession by the vendee, or the vendor puts him in possession, he holds as a licensee. The relation of landlord and tenant does not subsist between the parties. The characteristic feature of that relation is wanting. The vendee pays nothing for the enjoyment of the property. The case comes within the category of a license. In such cases the vendee cannot dispute the title of the vendor any more than the lessee can question the title of his lessor. The assignee of the vendee is as much bound by the estoppel as the vendee himself. Upon default in payment of any instalment of the purchase-money, the possession becomes tortious, and the vendor may at once bring ejectment. Ejectment may sometimes be maintained when covenant for the purchase-money could not.

In England it is necessary to give notice to quit before bringing ejectment. In this country, generally, the rule is otherwise. In the case before us, the question must be decided according to the local law of Georgia. The authorities upon the subject, cited in the brief for the defendant in error, and especially the manuscript case of McHan v. Stansel, decided by the Supreme Court of that State, at the June Term, 1869, and not yet reported, establish the proposition that such notice in this case was not necessary.

The plaintiff's lessor was clearly entitled to recover upon these grounds. This renders it immaterial whether Rogers had or had not a valid title by virtue of the statute of limitations, whether Caldwell had or had not a valid title under the same statute, or a perfect paper title, and whether the deed executed by the trustees of the Rome Female College was valid or not. Resolving all these questions in the negative, the right of the plaintiff's lessor to recover was not affected. The instructions relating to these subjects may, therefore, be laid out of view. In any just view of the subject they could have worked no injury to the plaintiff in error.

The testimony offered as to the amount paid by Burnett to Vliet for the property was irrelevant, and was properly excluded.

In Marlin v. Willink, where the leading facts were substantially identical with those upon which the questions before us have arisen, Judge Duncan said: 'This is the plainest case in the world.' Ejectment was held to have been properly brought by the vendor, and a judgment in his favor was sustained. Whatever relief the plaintiff in error may be entitled to must be sought in equity. He can have none at law.

JUDGMENT AFFIRMED.


text: Talk:Burnett v. Caldwell/Opinion of the Court


text:
Lobrano v. Nelligan

In error to the Supreme Court of Louisiana; the case being thus:

By the civil code of Louisiana the father is the administrator of the estate of his minor children, and does not, as in communities where the common law prevails, give personal security for the fidelity of his administration, but his immovable property is tacitly mortgaged in favor of the minor from the day of his appointment, as security for his administration, and for the responsibility resulting from it.

In this condition of the general law on the subject, the legislature empowered James Robb, of New Orleans, to sell his real estate under certain conditions, and directed so much of the proceeds of the sale as should be coming to his children to be invested for their benefit, subject to the approval of the Probate Court, in certain species of securities, which could not be assigned or transferred until the termination of the administration. Power was given to the court to discharge the mortgage to the children, on compliance with the conditions imposed in the act. And the court having so discharged the mortgage to the children, Robb sold the property to one Nelligan. Nelligan in turn sold it to one Lobrano. Lobrano, however, refused to complete the purchase, assigning as a cause that the property was subject to a legal mortgage in favor of the minor children, and that the act of the legislature by virtue of which it was pretended that the mortgage was raised and cancelled, impaired the obligation of a contract, and was, therefore, unconstitutional and void. Suit being brought by Nelligan against Lobrano for the purchase-money, and the plea of unconstitutionality being set up, the Supreme Court of Louisiana held that the statute impaired no contract and was valid. Lobrano then brought the case here.

Mr. Durant, for the plaintiff in error:

By the law of Louisiana guardianship imports a mortgage on the property of the guardian in favor of the minor. The guardian and the minor stand then in relation to one another as parties to a contract. And the contract is not the less a contract because the obligation is incurred by the obligor (the guardian) without any express agreement on the part of the obligee (the minor). The act of the legislature of Louisiana impaired this obligation by relieving the property of Robb from the mortgage, and leaving the minors without security.

Mr. J. P. Horner, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Lobrano v. Nelligan


text: Talk:Lobrano v. Nelligan

title: Talk:Lobrano v. Nelligan


text:
Lobrano v. Nelligan/Opinion of the Court

It is contended that the statute authorizing Robb to sell is invalid, because it impaired the obligation of a contract; but we think this a mistaken view of the subject. It is certain there was no contract to violate, which the parties themselves had any hand in making, and the inquiry arises whether the law has made one for them which has been impaired by this statute. It will not be questioned that the legislature possesses the power to determine by law the manner in which the estates of infants shall be preserved, and to say what kind of security shall be given by those who are intrusted with their management, and, if so, as a necessary consequence, it has the power of altering the law on the subject, whenever in its judgment the interest of the minors or the public good requires that it should be done.

In most of the States of the Union the guardian of the property of a minor gives bond, with personal securities, for his faithful conduct; but in Louisiana, in case the father occupies that relation, a different security has been provided, for his entire real estate is bound for the proper discharge of his trust. The security is called a tacit mortgage, which is nothing more than a regulation by law, to assure the property of the minor in the custody of the parent against loss. The legislature thought proper to adopt this measure of protection as a general policy on the subject to which it relates, and as there is no constitutional restraint on its action in this regard, it can change or modify this policy whenever it thinks proper to do so. And it has so far modified it, that the natural tutor of his minor child can at any time remove the general lien on his real estate, by executing a mortgage on a specific part of it, which he is at liberty to change to other property. This course of proceeding, authorized as early as 1830, must have been generally adopted, and although the security for the minor is actually lessened by it, as a part is taken in pledge where the whole was previously bound, it does not appear that the constitutionality of the statute has ever been questioned. The wisdom of the measure is apparent, for the public good requires that the power to alienate real estate should be restricted as little as possible, and this consideration doubtless induced the legislature to depart from its original policy, which made the transfer of real estate, when owned by a parent whose minor children had property, very difficult.

The principle which allows a change of security at all, necessarily leaves the legislative power over the whole subject unabridged, and there is no right of complaint, if the legislature, in varying the nature and extent of the security, takes care that the property is preserved.

A contrary doctrine, if carried to its legitimate conclusion, would seriously interfere with the ability of the legislature to perform one of its most important duties. Charged as it is with the duty of preserving the estate of the minor, it could not change the character of the security, which it had at one period accepted as sufficient for the purpose, although it should turn out to be wholly inadequate to accomplish the object. It is not to be presumed the legislature will lessen the security, except for good cause, nor jeopard by its course of action the estate of the minor, but, should such be the case, the corrective cannot be applied by this court.

By the statute in question, which was intended to benefit the minor children of Robb, and was an indirect mode of investing their means, under legislative direction, a change of security has been effected, and nothing more, and we cannot see how these minors, in the proper sense of the term, have been divested of any right in consequence of this change. Be this as it may, the legislature never contracted with them, or with any one in their behalf, not to use its power in this regard, and there being no contract to violate, there is no question in this case which this court can review.

JUDGMENT AFFIRMED.


text: Talk:Lobrano v. Nelligan/Opinion of the Court


text:
The Secretary v. McGarrahan

ERROR to the Supreme Court of the District of Columbia.

On the 3d of December, 1868, one McGarrahan, the alleged purchaser of the claim of a certain Gomez, to a tract of land in California, known as the Panoche Grande, filed a petition in the Supreme Court of the District of Columbia praying that a writ of mandamus might be issued, commanding the Hon. O. H. Browning, Secretary of the Interior, to issue, or cause to be issued, to him, McGarrahan, a patent for the land alleged to be embraced by that claim.

The claim of Gomez to this land had been decided in this court to be signally fraudulent and void. The right of McGarrahan to demand and receive such a patent as he asked the Supreme Court of the District to order, was placed in his petition upon the provisions of the act of July 23d, 1866, entitled 'An act to quiet land titles in California.'

'Section 7. That where persons, in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same, according to the lines of their original purchase, and where no adverse right or title (except of the United States) exists, such purchaser may purchase the same, after having such land surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts required in this section, under regulations to be provided by the Commissioner of the General Land Office, &c.: Provided, that the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper, or cinnabar.'

A subsequent act disposes, in a different way, of lands containing mines of gold, silver, copper, or cinnabar.

The petition of McGarrahan, not averring that proof of the facts had been made under the regulations of the Commissioner of the General Land Office, and without averring that the lands in question were not mineral lands, containing mines, &c., alleged simply that the facts stated in his application were proved, by the relator, to Mr. Browning, the Secretary of the Interior, and that he had found, from the proofs, that the relator, in good faith and for a valuable consideration, purchased the lands from Gomez. Upon the showing made in this petition, the Supreme Court of this District, without notice to Mr. Browning, the Secretary of the Interior, ordered, on the 7th of December, a rule to issue, commanding him to show cause, on the 3d Monday of January, 1869, before the court sitting in general term, why the writ of mandamus prayed for should not issue. On the 26th of January, Mr. Browning filed a return, in the nature of a plea to the jurisdiction of the court, submitting that the court had not jurisdiction of the subject-matter of the case, and could not grant the writ prayed for:

1st. Because the subject-matter was of purely executive cognizance, resting in the judgment and discretion of executive officers, in the ordinary discharge of their official duties.

2d. Because the subject-matter was one in which judgment and discretion were to be exercised; and

3d. Because the issuing of patents for lands was, by statute, the duty of the President of the United States.

On the 8th of July a writ of mandamus was issued, directed to Mr. Browning, or to his successor in office, commanding him to convey to McGarrahan the land in question. Four months before, Mr. Browning had retired from the office of Secretary of the Interior, and had been succeeded by the now present incumbent, the Hon. J. D. Cox. And on the same day, the 8th of July, this writ was served upon Mr. Cox, as one of the parties named in the alternative judgment. No proceedings of any kind were taken upon the retirement of Mr. Browning, to revive the suit against his successor, Mr. Cox, or to make him a party, and no notice of the pendency of the case was given to him by the relator or by the court, or any requirement made of him to answer the application on its merits.

Mr. Hoar, Attorney-General, and Mr. Ashton, special counsel, for the Secretary:

The case presented by the record, is:

1st. A peremptory mandamus issued against the head of a department, in a suit instituted against his predecessor, to which the incumbent had never been made, or become, a party.

2d. A peremptory mandamus awarded against the head of a department, in a case arising under laws which it is his duty to administer and execute, upon an ex parte statement of a claimant before his department, without any exhibition, on the part of the government he represents, of the truth of the matter in controversy, and without any opportunity being afforded by the court for such exhibition of the matter thus sought to be subjected to judicial determination; and

3d. A judicial order to the head of a department to issue a patent for lands, which the facts officially known to him might show to be lands that Congress had expressly excepted from the grant made in the 4th section of the act of July 23d, 1866, under which the relator claimed.

No instance of judicial usurpation of authority, so palpable, has been brought to the attention of this court.

In Gaines v. Thompson, Miller, J., in delivering the opinion of the court, took occasion to review the previous adjudications upon this subject, and to expound, in terms even clearer than had been before employed, the doctrine they all enunciate, that 'an officer to whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions.'

The reports of the decisions of this court contain eight cases in all, in which heads of departments and other executive officers were sought to be controlled by this prerogative writ of mandamus; but in only one was the attempted control sanctioned by this court. These cases came up from the district. In two of them only, the court below issued writs of mandamus. In the first, this court affirmed the judgment; and in the others it reversed the decision of the court below. Of these eight cases, one was against the Postmaster-General; two were against the Secretary of the Treasury; two against the Secretary of the Navy; one against the Public Printer; one against the Commissioner of Patents; and one against the Commissioner of the Land Office.

In all of these cases the doctrine is enforced, as a fundamental principle of our political system, that the Judiciary is forbidden to interfere with the exercise of executive discretion; or, as the court express it, the writ of mandamus lies only where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion.

2. It is indisputable that the duty imposed upon the executive officers who may be charged with the execution of the statute, under which the relator claims, is not ministerial in its character, within the meaning of these authorities, but is in the highest degree executive, as that term is defined in Mississippi v. Johnson.

In the case of United States v. The Commissioner of the Land Office, where the application was for a mandamus to compel the issuing of a patent, Nelson, J., said, the case 'calls for the exercise of the judicial functions of the officer, and these of no ordinary character. The duty is not merely ministerial, but involves judgment and discretion, which cannot be controlled by this court.'

The right of pre-emption given to the assignees of rejected Mexican grants plainly depends upon a variety of facts and conditions, which must be established to the satisfaction of and according to the rules provided by the Commissioner of the Land Office; whether they purchased in good faith, and for valuable consideration; whether they have used, improved, and continued in the possession of the land in the manner prescribed by the statute; whether any valid adverse title or right exists; whether the land has been properly surveyed; whether the facts have been proved 'under the regulations of the Commissioner of the General Land Office;' whether the lands are within the excepted locality; and, finally, whether the lands contain mines of gold, silver, copper, or cinnabar.

3. Mr. Browning's return was intended to raise a simple question of jurisdiction upon the face of the act of July 23d, 1866. The facts of the case of the relator were not disclosed. Upon that return the court awarded a peremptory mandamus-a final judgment upon a plea in abatement. The court, without being informed, or requiring or desiring information, as to the actual situation of the land, assumed not only that the facts were as the statute required, in order to give a right under it, but that upon those facts nothing was left to the judgment of the Land Department, and a mere ministerial duty devolved upon it to issue a patent to the relator. It is plain that such a judgment is without warrant of law, and void.

4. Great as was the error of the court below in rendering a final judgment in this proceeding as against the defendant, Mr. Browning, its error in rendering such a judgment against his successor, Mr. Cox, was still more flagrant.

The imperative rule of the law of mandamus is that, previously to the making of the application to the court for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the prosecutor to the defendant, who must have refused to comply with such demand, either in direct terms or by conduct from which a refusal can be conclusively implied.

In addition, the doctrine of this court has limited the power of the courts to issue this writ, to cases of acts required by law of the individual rather than of the officer-a doctrine explained by the court in United States v. Guthrie, and in Kendall's Case.

It might well be in any case, that while a particular incumbent had refused to perform an act required by law, his successor would not refuse, upon proper demand being made. The law, therefore, entitles the successor to the same opportunity to comply or refuse, as was given to the incumbent against whom the suit is brought.

5. This court has, in effect, determined that the duty and power of issuing patents does not devolve upon the Land Department, or upon the Secretary of the Interior, who is vested with supervisory and appellate authority over that department, in such a sense as to render the Commissioner of the Land Office, or the Secretary of the Interior, liable in any case to be proceeded against in this form of action. In United States v. Commissioner of Land Office, Nelson, J., in delivering the opinion of the court, took occasion to say, that 'patents are to be signed by the President in person, or in his name by a secretary under his direction, and countersigned by the Recorder of the General Land Office.'

Mr. Merriman, contra:

The petition sets forth the facts entitling the relator to a patent for the land claimed, and that these facts had been proven to the satisfaction of the Secretary of the Interior; that those facts had been determined by him, but that the secretary refused to issue the patent without any just cause. This was not denied by the secretary, but he simply interposed a denial of the jurisdiction of the court in the matter.

Was the denial well founded? The General Land Office is a part and parcel of the Department of the Interior, and its officers are subject to the directions of the secretary of that department. It is his duty to see that they perform their duties. It is their duty to issue patents for lands to persons by law entitled to them. To one officer is delegated the duty of engrossing, recording, certifying, and affixing the seal of the Land Office, and issuing such patents; to another the duty of signing the name of the President.

The entire duties of issuing patents are performed by certain specified officers. The President is required to perform no personal act in the matter, and indeed the same language of the statute is used in reference to the commissioner as to the secretary for signing patents, each to act under the direction of the President of the United States. The rule being held that the commissioner is subject to the supervision of the head of the department, the same reason will apply to the application of the rule to the subordinate and strictly ministerial officer who affixes the signature to the patent.

In this case the secretary, instead of directing his subordinates to perform the duty of issuing the patents to which the relator is entitled by law, refuses entirely to do so.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Secretary v. McGarrahan


text: Talk:The Secretary v. McGarrahan

title: Talk:The Secretary v. McGarrahan