text:
Maguire v. Tyler/Opinion of the Court

Complete titles to land in the territory ceded by France to the United States, under the treaty concluded at Paris on the thirtieth of April, 1803, needed no legislative confirmation, as they were fully protected by the third article of the treaty of cession; but persons holding incomplete titles were required by the act of the second of March, 1805, to deliver, before the day therein named, to the register of the land office or the recorder of land titles, in the district where the land was situated, a notice in writing, stating the nature and extent of the claim, together with a plat of the same, and also every grant, order of survey, and conveyance, or other written evidence of the claim, in order that the same might be recorded.

Prior to the passage of that act, the province ceded by the treaty had been subdivided by Congress and organized into two territories, and the fifth section of the act before referred to, made provision for the appointment of commissioners in each of those territories, to ascertain and adjudicate the rights of persons claiming such titles. Power was conferred on those commissioners to hear and decide, in a summary manner, all matters respecting such claims; and the provision was that their decisions should be laid before Congress, and be subject to their determination.

Amendments to that act were subsequently passed before the title in controversy in this case was adjudicated; but it will not be necessary to enter into those details in this investigation, except to say that the fourth section of the act of the third of March, 1807, provided that the decision of the commissioners, when in favor of the claimant, should be final against the United States.

Present suit was commenced in the Land Court of St. Louis, but was subsequently transferred by change of venue to the Court of Common Pleas of that county. Claim of the plaintiff, as set forth in his petition, was for four by four arpents of land, being part of a concession made under Spanish rule by Governor Zenon Trudeau to Joseph Brazeau, and which was confirmed to the donee by the land commissioners appointed under that act of Congress.

Accurate description of the land included in the claim, and of the several muniments of title proposed to be introduced to establish its validity, is given in the petition. Those muniments of title, as there described, are in substance and effect as follows:

1. The petition of Joseph Brazeau, a citizen of St. Louis, dated June 1, 1794, for a tract of land, situate in the western part of the town beyond the foot of the mound called La Grange de Terre, of four arpents in width, to extend from the bank of the Mississippi in the west quarter southwest, by about twenty arpents in depth, beginning at the foot of the hill, on which stands the mound, and ascending in a northwest course to the environs of Rocky Branch, so that the tract shall be bounded on the east side by the bank of the river, and on the other sides in part by the public domain, and in part by the lands reunited to that domain.

2. Ten days later the governor executed a certificate, in which he declared that the tract belonged to the public domain, and certified that he had put the petitioner in possession of the four arpents front by twenty arpents in depth, and specified in a general way the boundaries of the tract. Next evidence of title, there described, was the concession of the governor to Joseph Brazeau, bearing date on the twenty-fifth of June in the same year, in which he formally conceded to the donee, in fee simple, for him, his heirs, assigns, or whosoever may represent his rights, a tract of land. . . of four arpents front by twenty arpents in depth, situate north of the town,. . . to begin beyond the mound, extending north-northwest to the environs of Rocky Branch, bounded on one side by the bank of the river, and on the opposite by lands reunited to the public domain, through which land passes the present concession, of which one end is to be bounded by the concession to one Esther, a free mulatto woman.

Invested with a title to four arpents front by twenty arpents in depth, as described in his concession, the donee, Joseph Brazeau, on the ninth of May, 1798, by a deed of that date duly executed before the governor, sold, ceded, relinquished, and transferred to Louis Labeaume 'a concession of land to him given,' as aforesaid, consisting of four arpents of land, to be taken from the foot of the hill called La Grange de Terre, by twenty arpents in depth, bounded by the Rocky Branch, or creek, at the extremity opposite to the hillock, east by the river, and west by the land belonging to the royal domain; the said Brazeau reserving to himself four arpents of land, to be taken at the foot of the hillock in the southern part of said land,. . . selling only sixteen arpents in depth to the said Labeaume, who accepts the sale on those terms and conditions, and the instrument was signed by both parties. Reference must also be made to certain other ancient documents as showing the origin of the controversy, and as affording the means of ascertaining the true location of the premises claimed by the plaintiff.

Evidently the out-boundaries of the tract of land described in the deed include the entire concession previously obtained by the grantor; but the reservation, as plainly expressed in the instrument of conveyance, is of four arpents of land to be taken at the foot of the hillock in the southern part of the tract.

Rights of the parties, as described in the preceding instruments, may be easily ascertained and defined; but the purchaser of the four by sixteen arpents of that tract desired to enlarge his possession, and with that view he obtained from the governer a concession to himself of an additional parcel of land from the public domain. By his petition he asked the governor to grant to him three hundred and sixty arpents of land, including that which he had antecedently acquired, and then held by purchase. Express reference is made to the tract he acquired by purchase, and he asked for twenty arpents in depth from the river, ascending to the Rocky Branch, west quarter south 'by sixteen arpents front along the river, which is the same front as that of the petitioner's land.'

Nothing could be more precise than that description, and the further statement of the petition was, that 'the angle made by the perpendicular line from the road to the river by the creek, and by the river, will about complete the quantity,' as described in the petition. On the fifteenth of February, 1799, the governor made the concession, and in the same instrument he directed the surveyor to make out the survey in continuation of his antecedent purchase, and to put the interested party in possession of the described premises. Description of that concession, as given in the certificate of the surveyor, bearing date April 10, 1799, is that the tract is bounded on the north side by the bank of Rocky Branch and the public domain, on the south side by the lands of other donees, on the east by the river, and on the west side by vacant public lands; but it is evident that the boundaries of the tract, as given in the certificate of the surveyor, include the whole of the former concession, and that the certificate entirely overlooks the fact that the donee of that tract reserved to himself four arpents of the same, 'to be taken at the foot of the hillock in the southern part of said land.'

Such a survey, however the error may have arisen, cannot have the effect to enlarge the rights of the purchaser, or to diminish or impair the rights of the grantor to the four arpents reserved in that deed, and which were never conveyed to the grantee. Repetition of the reservation in the certificate of survey may have been omitted by mistake, but the proofs in the record to show that the boundaries as given in the certificate are erroneous, are full and satisfactory. Manifest differences exist between the concession of the governor and the boundaries of the tract, as given in the certificate of the surveyor, which deserve particular notice. He takes the sixteen arpents front on the river, not from 'the descent of the road into the creek,' but from a point four arpents south of that line, making the distance from that line, or from the descent of the road into the creek to the south line of the concession as surveyed, twenty arpents instead of sixteen, as it should have been, whether tested by the deed of conveyance or by the terms of the concession.

Three lines only were called for by the concession, but the figure formed at the branch or creek by the survey is composed of four lines, which shows conclusively that the survey was erroneous. Plain duty of the surveyor, in executing the order of survey, was to follow the directions of the instruments of title, and inasmuch as the concession referred to the petition for description and boundaries, he was bound to give the interested party 'the same front' as that he acquired by the conveyance described in the petition, and to be governed by the statement therein contained, that 'the angle made by the perpendicular line from the road to the river' would complete the quantity of the land asked for by the petitioner. What he asked for was twenty arpents in depth by sixteen arpents front, which is the same front as that which he had previously acquired by purchase. This purchase included sixteen arpents in depth, and was a part of a concession of four arpents in front by twenty arpents in depth, which was, by the terms of the deed as well as by the true construction of the several documents constituting the evidences of title, to be taken from the foot of the hillock, and was bounded at the opposite extremity by Rocky Branch.

Compliance with the directions of the concession as expressed in the petition would have done exact justice to both parties, but the surveyor instead of obeying those directions commenced his field operations four arpents further down the river, and measuring south for quantity necessarily absorbed the whole reservation before described and adopted the northern line of the concession to the mulatto woman as the southern line of the tract he was ordered to survey. Doubtless the change of location was acceptable to the interested party, as it gave him better back land, and excluded from his concession the hilly broken land on Rocky Branch, but it left nothing between his south line and the north line of the concession belonging to the mulatto woman for the owner of the four by four arpents, as reserved in his own deed.

Support to these views is also derived from the terms of the concession to the mulatto woman, bearing date October 5, 1793, which, as therein described, has four arpents front, on its two extremities, and the description given of the location is that the northern portion of the grant is situated between the mound Le Grange de Terre and the borders of the Mississippi River running down the river to the 'complement and extension' of twenty arpents in depth, and is bounded on three sides by the public domain, and on the other side, to wit, the east-northeast side, by the bluff or high bank of the river.

Viewed in the light of these original documents, even when unaided by the maps in the case, it is quite clear how this controversy arose, but when the several documents are compared with the maps and the parol testimony in the record, the conclusion is irresistible that the reservation in controversy was bounded on the south by the north line of the concession to the mulatto woman, and on the north by the south line of the tract sold and conveyed to the party under whom the respondents claim.

Although the documents are genuine and regular in form, still the respective donees acquired nothing under them but what is called an incomplete title, as the governor did not possess the power to do more than make a concession. He could not grant a patent, and as no such evidence of title had been obtained from the former government it became necessary for the plaintiff to prove that his claim had been confirmed under some act of Congress. Evidence of the proceedings before the board of commissioners for the adjustment of such claims was accordingly introduced by the respective parties.

Entries in the minutes of the commissioners made September 3, 1806, show that Louis Labeaume presented a claim to the board for three hundred and seventy-four arpents of land, situate on the Mississippi, and that he produced a concession, duly registered, from Zenon Trudeau, for four by twenty arpents, dated 25th June, 1794, granted to one Joseph Brazeau, and another concession from the same governor to himself for three hundred and seventy-four arpents, including the said four by twenty arpents, dated the 15th of February, 1799, which was the true date of his concession; also a survey of the same taken the 2d of March, and certified the 10th of April in the same year, together with a certificate from the governor, dated May 12, 1798, of the sale of said four by twenty arpents by said Joseph Brazeau, reserving to himself four by four or sixteen arpents in superficies, which is the true meaning of the reservation as expressed in the deed.

Statement in the minutes also is to the effect that testimony was introduced showing that the original donee of the four by twenty arpents obtained the concession of that tract, and that he and the claimant had actually inhabited and cultivated the same or caused it to be inhabited and cultivated to that date. Proofs were also introduced as stated in the minutes, which showed that the original donee was the head of a family, and that he inhabited and cultivated the tract at a period sufficiently early to bring the case within the condition specified in the act of Congress for ascertaining and adjusting such titles and claims to land.

Further statement in the minutes is that the claimant subsequently abandoned his right to the concession, of four by twenty arpents, and claimed directly under the concession to himself, which, as surveyed, it will be remembered, included the whole of the antecedent concession to his grantor; as well the four by four arpents, reserved in the deed to him from the donee of the tract, as the sixteen arpents which were actually conveyed.

Argument for the respondents is, that the minutes were made by the clerk of the board, and not by the claimant, and the suggestion is doubtless correct, but it is not denied that the applicant presented his claim to the board in two forms, and there does not appear to be any just ground to question any part of those several representations. Constituting as they do a part of the proceedings of the commissioners, they are the proper subjects of reference, but they are not very important except as tending to show that the true state of the respective claims was early before the board, and that the claimant knew that he had no title to the four by four arpents, reserved in his deed, which is also fully proved by all the documentary evidence of title exhibited in the record.

When considered in connection with the documentary evidence of title the clear inference from the minutes is, that the claimant shifted his ground before the commissioners to avoid the danger that they might refuse to confirm to him the four by four arpents to which he showed no title under his deed. Unless he had entertained doubts of his success in that particular, he would not have changed his position; but he gained nothing by it, as the board rejected his claim because the concession to himself had not been duly registered.

Next entry in the minutes, as exhibited in the record, is the decree of confirmation, passed September 22, 1810, which is in substance and effect as follows, omitting unimportant words:

Louis Labeaume claiming three hundred and seventy-four arpents of land. . . The board confirm to him three hundred and fifty-six arpents, and four arpents to Joseph Brazeau, and order that the same, meaning the confirmation to the claimant, be surveyed agreeably to the concession from Zenon Trudeau to Louis Labeaume, and as respects the four arpents, agreeably to a reserve made in a sale from Joseph Brazeau to Louis Labeaume.

Nothing can be plainer than the fact that the commissioners fully understood the rights of these parties, and that they confirmed the four arpents therein described to the original donee; that they did not intend and did not confirm that tract to Labeaume, nor to any one except to the rightful owner.

Supported, as these propositions are, by clear and irrefragable proofs, further argument upon the subject is unnecessary. Confirmation of the same, however, if any be needed, may be found in the certificate of the commissioners, which they issued to the party June 14th, 1811, in which they state that they have decided that Joseph Brazeau, the original claimant, is entitled to a patent for four arpents of land situate in the district of St. Louis, on the Mississippi, and they therein 'order that the same be surveyed agreeably to a reserve made in a sale of Joseph Brazeau to Louis Labeaume, recorded in Book C, page 339, of the recorder's office, by virtue of a concession or order of survey from Zenon Trudeau, lieutenant-governor.' Obvious effect of these proceedings was to blot out forever the error committed by the Spanish surveyor, and to place the rights of the contestants upon their true basis. Attempts at injustice were defeated, but the hopes of cupidity were not entirely crushed.

Where the documentary evidences of title produced by the claimant contain no sufficient lines or boundaries to show that any definite and distinct parcel of land was severed from the public domain, the universal rule as settled by repeated decisions of this court is that the concession in such a case creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location.

Cases may be found in which it was held that where Congress had confirmed an incomplete title, and subsequently confirmed another and a different claim for the same land, that the elder confirmation defeated the younger. But the settled rule of the court is that, as between two claimants under the former government, setting up independent imperfect claims to the same parcel of land, the courts of justice have no jurisdiction to determine the controversy; that in such cases it belongs to the political power to decide to whom the perfect title shall issue.

Congress undoubtedly might confirm such claims without any previous ascertainment of their location or boundaries, but they have decided, in respect to claims like these, not to exercise that power, and created a board of commissioners to adjudicate the claims; and this court held, when considering this very title, that the judicial tribunals in the ordinary administration of justice had no jurisdiction or power to deal with these incipient claims, either as to fixing boundaries by survey or for any other purpose, but that such a title, until the survey was made, attached to no land, nor could a court of justice ascertain its boundaries, as that power was reserved to the executive department of the Federal government.

Several cases determine that where there is a specific tract of land confirmed according to ascertained boundaries, the legal effect of the confirmation is to establish the right and locate the claim, but where the claim has no certain limits, and the decree of confirmation carries along with it the condition that the land must be surveyed, and severed from the public domain and the concessions of other parties, then it is beyond controversy that the title of the claimant, although confirmed, attaches to no land, nor has a court of justice any authority in law to ascertain and establish the boundaries, at that power is reserved either to the executive department or to Congress.

Authority to appoint a surveyor of lands in that territory was conferred by the first section of the act of twenty-ninth of April, 1816, and it was therein made his duty, among other things, to cause to be surveyed the lands in the same which have been or may hereafter be confirmed under the conditions therein provided.

Application was accordingly made by Louis Labeaume that the tract confirmed to him might be surveyed, and Joseph C. Brown, a deputy surveyor, appointed under that act in November, 1817, complied with his request, and certified that he had 'surveyed for the applicant two tracts in one,' which was a direct acknowledgment that he had committed the same error as that made in the Spanish survey. Those two tracts were, first, the one consisting of three hundred and fifty-six arpents, as confirmed to Louis Labeaume, and the other was the four by four arpents confirmed to Joseph Brazeau, which was properly located by that survey in the southeast corner of his original concession. Correctness of that survey cannot be doubted, except that both tracts were included in one survey, and it was upon that ground that the recorder of land titles, when it was presented to him to obtain a patent certificate, refused to issue one, holding that the confirmation certificates required separate surveys.

Express statement of the certificate of survey is that the beginning of the survey was at the mouth of the branch, and the field notes show that the surveyor proceeded down the river, 'bending therewith,' to the mouth of an old ditch, where he placed a stone at the lower corner on the river.

In consequence of the refusal of the recorder to issue a patent certificate conforming to that survey, the surveyor-general, on the second of May, 1833, returned the same to the deputy surveyor who made it, and gave him authority to resurvey the tract, but with instructions not to include within the lines of the new survey any more than the exact quantity of three hundred and fifty-six arpents, and under those instructions he, on the eighth of June, in the same year, certified a plat and description of survey of the tract confirmed to Louis Labeaume, including the whole of the Brazeau tract, beginning on the south line of his prior survey and running north for quantity, in plain violation of all the original documentary evidences of title.

Second survey of Joseph C. Brown was also set aside, and the Secretary of the Interior, on the twenty-fifth of July, 1851, decided, contrary to the views of the Land Office throughout the controversy, that those claiming under Labeaume were entitled to a patent to the land above the ditch according to Soulard's survey, and that the reservation of four by four arpents to Brazeau, and which he subsequently conveyed to Chouteau, was bounded on the north by Labeaume's south ditch, and that it extended to the foot of the mound. Directions were accordingly given that the necessary surveys should be made, and that patents should be issued in conformity with those principles.

New surveys of the respective lands were made in pursuance of those directions, and on the twenty-sixth of February, 1852, patent certificates, in a special form, were executed by the recorder of land titles. Both the patent certificates were founded upon that decision of the Secretary of the Interior, and the material matters certified in the one intended for Joseph Brazeau were, that the recorder was of the opinion that the confirmation of four arpents was intended to mean four arpents front by four arpents in depth towards the west, or sixteen superficial arpents, and that the same had been surveyed in strict conformity with the decision of the Secretary of the Interior.

Extended comments upon those proceedings are not necessary, as they are obviously characterized by error and injustice from their inception to their final consummation. Patents were executed March 25, 1852, in conformity with the patent certificates; but the one to Louis Labeaume, or his legal representatives, contains an important reservation in these words, namely: 'Saving and reserving any valid adverse right which may exist to any part' of the tract, which is also substantially repeated in the habendum clause of the patent.

Two months before the patent was executed locating the four by four arpents south of the ditch, the plaintiff, as the legal representative of the original donee, protested against the survey on which the patent certificate was issued, and the record shows that he never accepted the patent. None of the representatives of the donee ever asked for that survey, nor ever consented to receive the patent, and on the fourth of February, 1858, the Secretary of the Interior recalled it, and it was promptly returned as having been improvidently issued. Justice and truth were both subserved in the course pursued, as the patent gave no title to any land whatever to the patentee, because the location was upon an elder concession. Doubt as to the power of the secretary to recall the patent cannot be entertained, as the point has been directly decided by this court. Brazeau's representatives, say this court, in the case of Maguire v. Tyler et al., refused to accept the patent for the sixteen arpents, and caused it to be recalled, and his claim, therefore, stands before the court just as it existed in 1810, when the board of commissioners confirmed it as valid.

Objection is made to the jurisdiction of this court to hear the case and decide the controversy under the twenty-fifth section of the Judiciary Act; but there is no proper ground for doubt upon the subject.

Explicit description of the premises claimed, and of the title under which they are claimed, is set forth in the petition, and the answer in several forms alleges in substance and effect that the pretended confirmation to Joseph Brazeau was wholly void for want of jurisdiction in the board of commissioners over the case, and that no title to any land ever passed to him thereunder, and that the patent-meaning the one executed without his consent, and recalled at his request as having been improvidently issued vested in his legal representatives the only title to land he ever had by virtue of his claim and confirmation.

Additions might be made to these selections from the answer, but it is unnecessary, as the respondents do not deny that there are issues in the pleadings involving questions re-examinable in this court under that section of the Judiciary Act; but what they contend is, that the answer presented other defences not re-examinable in this court, and they insist that the Supreme Court of the State, for aught that appears to the contrary, may have decided the cause against the plaintiff, and reversed the decree of the Court of Common Pleas upon some of the defences set up in the answer which are not re-examinable in this court. Certain it is that Federal questions are directly involved in the pleadings, and if it appears that none of the other defences afford any legal answer to the suit, the conclusion must be that the case is properly here, as this court will not presume that the court below decided the other issues erroneously in order to defeat their own jurisdiction.

Respondents pleaded the statute of limitations, that they and those under whom they claim had been in the actual adverse and continuous possession of the premises for more than twenty years next before the commencement of the suit. Such a defence could not have been adjudged good in this case without a direct denial of the foundation of the plaintiff's claim, as will be readily seen by a brief reference to the facts. When the patent, improvidently issued, was recalled, the claim of Brazeau stood before the court just as it existed in 1810, when it was confirmed as valid.

Having never been surveyed at the request of the confirmee, or by order of the Land Office, and never patented to the claimant, it remained as it had been throughout, an incomplete title attached to no land, and it could not be converted into a complete title, except by legal survey and by a patent executed in due form, as required by law.

Conscious that he had a good claim, and undismayed by the law's delay, Brazeau again applied to the land department, and requested that steps might be taken for the protection of his rights; and after a full examination of the case, the Secretary of the Interior, on the ninth of April, 1862, ordered that a survey of the four by four arpents confirmed to him should be made, to be taken from the southeast part of the tract surveyed to the other claimant, and referred the matter to the Commissioner of the General Land Office to have the survey made in accordance with the order.

Corresponding survey was made on the eighth of May in that year, and on the tenth of June following the patent was executed and duly signed by the President. Particular reference is made in it to the survey for the description of the tract, and the patent contains the same reservation as that contained in the patent to the other claimant. Prior to the execution and delivery of that patent the title was in the United States, as is apparent from the documents exhibited in the record. Conceded originally to Joseph Brazeau, his incomplete title to the same remained unextinguished throughout the whole period of the litigation. He never sold the claim of four by four arpents to the other claimant, nor did he ever request that it should be surveyed or located in any place other than the one where it was ascertained to be by the first survey, and it is equally true that Labeaume never had any concession of that tract, that he never purchased it, and never had any title of any kind to any part of the concession, except the sixteen arpents as described in his deed from the rightful owner of the residue of the tract.

Even those most interested to do so will hardly contend, in view of these circumstances, that the court below could have sustained the defence set up in the answer, that the claim was barred by the statute of limitations, as the suit was commenced in less than five months after the official survey was made. Before that time the legal title was in the United States, and the claim of the plaintiff attached to no particular land. Obviously the same facts are also a complete answer to the defence set up by the respondents of a former recovery founded on the decree in the case of Maguire v. Tyler et al., before cited, as the title to the land at that date was in the United States and continued to be so for a long time after the commencement of that suit.

Power to revise the surveys of confirmed claims was, by the act of the fourth of July, 1836, conferred upon the Commissioner of the General Land Office, subject in certain cases to an appeal to the Secretary of the Treasury, but since the passage of the act of the third March, 1849, such supervision is devolved upon the Secretary of the Interior.

Plaintiff in that suit claimed title under the survey made by Joseph C. Brown in 1817, and he denied that the Secretary of the Interior had the power to set it aside, but this court held that the secretary, under the last-named act of Congress, had that power, and, consequently, that the claim in question had no specific boundaries, and that it attached to no particular land, so that a court of justice could not give him a remedy.

Theory of the plaintiff in that case was, that the survey, under which he claimed to maintain the suit, had been illegally set aside, and if he had been right, the court would have had jurisdiction of the merits, as the case was one brought here from a State court, where the distinction, as to the remedy between legal and equitable titles, is not observed. But the respondent insisted that the survey had been legally set aside, and the court so held, and, in that state of the case, this court could not decide anything, under the twenty-fifth section of the Judiciary Act, except the question as to the power of the Secretary of the Interior to set aside that survey.

Some of the judges were of the opinion that there was no jurisdiction of the case, but it is apparent that those who were of a different opinion never, for a moment, supposed that the decree in the case would determine the ultimate rights of the parties. By affirming the decree rendered in the court below in that case, this court decided that the survey then in question was legally set aside by the Secretary of the Interior, but the court did not consider the merits, and did not decide anything upon that subject.

The respondents also allege that some of their number were innocent purchasers, without notice, but the defence is not sustained by the proofs, and there does not appear to be any foundation for the theory that the decree of the Supreme Court of the State was placed upon any such ground.

Want of jurisdiction in the commissioners is also set up in the answer, and the argument is, that the Supreme Court of the State may have decided that the decree of confirmation was a nullity on that account. Unsupported, however, as the proposition is by anything appearing in the recorded proceedings of the board, it does not seem to be necessary to enter into any extended argument to show its fallacy. Suffice it to say that the question involved in the proposition is one which may be revised in this court, and the proper answer to it is, that if the court below so decided, the decision, in our opinion, was clearly erroneous.

Apart from the question of jurisdiction, it is also contended, by the respondents, that the patent under which the plaintiff claims is void, because the land therein granted is included in their patent, which is the elder title, but the error of the proposition consists in the theory of fact on which it is founded. Their patent does not include the some land. On the contrary, the land included in the plaintiff's patent was excepted out of their patent by the reservation therein contained, because it was a valid adverse right to four by four arpents of land within those boundaries, existing at the time their patent was executed.

Decree of the Supreme Court of the State REVERSED, with costs, and the cause remanded, with directions to affirm the decree of the St. Louis Court of Common Pleas.

Mr. Justice NELSON did not sit in this case; and GRIER, J., dissented from the judgment.

On the announcement of this decision, Mr. P. Phillips, for the defendants in error, moved to reform the entry of judgment just above ordered to be made, and argument was directed on the question 'whether the decree should require the Supreme Court of Missouri to affirm the decree of the Court of Common Pleas of St. Louis.' Messrs. P. Phillips and B. R. Curtis contended that as to the question of jurisdiction in the court below, and the several special defences set up in the answer of the defendants involving the statute of limitations, res adjudicata,bon a fide purchase, and other matters of a similar character, this court had no jurisdiction.

The appellees here, who were appellants in the court below, were entitled to have these questions adjudicated by the Supreme Court of the State, which alone has jurisdiction over them.

The decree of that court dismissed the bill, but is silent as to the ground of dismissal. If it proceeded on either of these pleas, then this court has no jurisdiction to reverse it. If, on the other hand, the decree passed merely on the title derived from the government, then this court has jurisdiction to reverse the decree; but its reversal is limited to this question alone, leaving still open for adjudication by the State court the defences presented by the record, and which are of local jurisdiction, and no opinion of this court that they are invalid can deprive the parties of this right to have the judgment of the State court.

The mandate, as framed, directing the Supreme Court of the State to affirm the judgment of the Court of St. Louis, is in effect an affirmance by this court. Thus this court concludes questions which have never been passed upon by the Supreme Court of the State, questions not argued here, because the court is without jurisdiction to determine them.

The limitation of the judicial power of the United States is clearly defined by the Constitution, as well as by the Judiciary Act. Under the 25th section of that act this court may have a case brought here for review from a State court, but it does not follow that the case being here that this court has jurisdiction of all questions which arise on it.

In the present case the opinion of the court is limited to the question of title derived under the government. This properly concludes the controversy on that point. the complaint is that the judgment directed to be entered covers a much broader field. The mandate should direct proceedings in conformity with the opinion.

Messrs. Carlisle and Ewing, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

Explanations as to the nature of the controversy involved in the suit, or the proceedings in the courts of the State before the cause was removed into this court for revision, are unnecessary, as they are given with sufficient fulness in the opinion of the court delivered on the 5th of April last, on the same day and immediately before the decree was entered reversing the judgment of the Supreme Court of the State; and all those matters are well known to the parties before the court.

Pursuant to the order given at that time, the decree entered was, 'that the judgment of the said Supreme Court in this cause be, and the same is hereby reversed, with costs, and that this cause be, and the same is hereby remanded to the said Supreme Court, with directions to enter a decree affirming the decree of the St. Louis Court of Common Pleas.' Dissatisfied with the directions given in the decree, the respondents moved the court that the decree in that respect might be modified, and the court, on the 15th of the same month, passed an order that the motion should be continued to this session, for oral argument on the question, whether the decree should require the Supreme Court of the State to affirm the decree of the Court of Common Pleas, as therein directed. Leave for any further argument upon the merits was not granted in that order, nor has the court reconsidered the questions previously examined and decided when the opinion was delivered. The court at that time decided the following propositions:

1. That the documentary evidences of title exhibited in this case, as derived under Spanish rule, did not invest Joseph Brazeau, the donee of the tract of four by twenty arpents, with a complete title to the tract.

2. That the legal title to the same under the treaty vested in the United States, as the successor of the former sovereign.

3. That the donees of incomplete titles in the territory ceded by the treaty, could not convert an incomplete title, derived from the former government, into a complete title under the United States in any other mode than that prescribed by an act of Congress.

4. That the incomplete title to the whole tract of four by twenty arpents was granted by Governor Zenon Trudeau to Joseph Brazeau, as described in the concession evidencing the grant.

5. That the deed from the donee of the tract to Louis Labeaume did not convey the four by four arpents now in controversy, but that the title to the same, as acquired under the concession, still remained in the donee of the tract, by virtue of the reservation contained in the deed.

6. That the survey made by the Spanish surveyor did not have the effect to impair the incomplete title of the donee, nor to convey, assign, or transfer any interest whatever in the tract of four by four arpents to the grantee in that deed.

7. That the tract of four by four arpents was confirmed to the donee by the decree of the commissioners of September 10, 1810, and that the same was never confirmed to Louis Labeaume.

8. That the survey of Joseph C. Brown, in which he certified that he had surveyed for the applicant 'two tracts in one,' was in that particular erroneous, and that the survey so made did not have the effect to impair in any way the incomplete title held by the donee of the tract.

9. That Louis Labeaume did not acquire the legal title to the tract of four by four arpents under the patent granted to him, as the saving clause in the same reserved any valid adverse right which may exist to any part of the tract.

10. That the patent granted to Joseph Brazeau at the same time never became operative, as he refused to accept the same, and promptly returned it to the land department.

11. That the subsequent action of the Secretary of the Interior in cancelling the same, and in ordering a new survey, was authorized by law.

12. That Joseph Brazeau, by virtue of that survey and the patent granted to him, June 10, 1862, acquired the legal title to the tract of four by four arpents, notwithstanding the saving clause in the patent, as he was the rightful owner of the incomplete title to the same as acquired by the concession granted under Spanish rule.

13. That the tract as granted by the governor was bounded on the north by Rocky Branch, and on the south by the concession to one Esther, a free mulatto woman, and the reservation in the deed was of a tract of four arpents of land, to be taken at the foot of the hillock in the southern part of the land.

14. That the land reserved is bounded on the south by the concession to the mulatto woman, and north by the south line of the 'sixteen arpents in depth' conveyed by the deed, and lies north of the ditch.

15. That the legal title to the tract of four by four arpents remained in the United States until June 10, 1862, when the patent was granted to the donee of the incomplete title under the former sovereign.

16. That the title of the donee before be obtained his patent was incomplete and attached to no land, and could not be converted into a complete title except by legal survey and by a patent, as required by law-because it stood as it existed in 1810, when the board of commissioners confirmed it as valid.

17. That the title of the donee, as perfected by the last survey and patent, is wholly unaffected by the judgment of this court in the case of Maguire v. Tyler et al., as this court in that case had no jurisdiction of the merits and did not decide any question, except that the action of the Secretary of the Interior, in setting aside the survey therein described, was a rightful exercise of authority.

Based upon these conclusions of law, the court gave the directions recited in the order passed at the regular session of this term, for an oral argument on the motion now pending before the court. In conformity to that order, the question involved in the motion, and therein recited, has been argued by counsel, and the court has reconsidered that part of the decree, and has come to the conclusion that a different direction would be more in accordance with the usual practice of the court in such cases than the one contained in the decree.

Governed by that consideration the court will modify the particular direction specified in the order for an oral argument; but the court adheres to the several propositions of law here recited, and refers to the opinion of the court delivered at the time the decree was entered for further explanations, as to the grounds upon which these conclusions rest.

The decree of reversal will stand unchanged; but the directions, as modified, will be, that the cause be remanded for further proceedings, in conformity to the opinion of the court.

NELSON, J., took no part in these directions; and GRIER, J., dissented from the judgment even as thus modified. The modification was ordered at the close of December Term, 1868.

title: Maguire v. Tyler/Opinion of the Court


text: Talk:Maguire v. Tyler/Opinion of the Court

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


text:
United States v. Smith

 * United States v. Smith (18 U.S. 153), ( 5 L.Ed.  57 ), ( 5 Wheat. 153 )
 * United States v. Smith (75 U.S. 587), ( 19 L.Ed. 506 ), ( 8 Wall. 587 )
 * United States v. Smith (94 U.S. 214), ( 24 L.Ed. 115 )
 * United States v. Smith (95 U.S. 536), ( 24 L.Ed. 517 )
 * United States v. Smith (105 U.S. 620),
 * United States v. Smith (124 U.S. 525),
 * United States v. Smith (158 U.S. 346),
 * United States v. Smith (197 U.S. 386),
 * United States v. Smith (256 U.S. 11),
 * United States v. Smith (286 U.S. 6),
 * United States v. Smith (331 U.S. 469),
 * United States v. Smith (342 U.S. 225),
 * United States v. Smith (499 U.S. 160), ( 113 L.Ed.2d 134 ), ( 111 S.Ct. 1180 )

 * See Similar:
 * Smith v. United States (Disambiguation)

title: United States v. Smith


text:
Neale v. Neales

Page 2 APPEAL from the Supreme Court of the District of Columbia; the case being thus:

Benjamin Neale and wife filed a bill in the court just named, against John E. Neale, father of the said Benjamin, stating that, he the father, was, in 1858, owner of lots Nos. 16 and 18 in Washington; that at the time mentioned, he, the son, one of the complainants, was seeking the hand of Mary Hamilton, the other complainant, and his now wife, in marriage; that this intended marriage met with the approval and encouragement of the father, who, in promotion thereof, and as an inducement thereto, promised and agreed that if said marriage should be consummated, he would, in consideration thereof, convey one, or a part of one, of the lots owned by him to his son, and Mary, his intended wife, or to one of them, in fee, to the end that with money then belonging to, or expected to belong to the intended wife, they might erect thereon a dwelling-house for their habitation and home; that confiding in the promise so made, and influenced thereby, and partly in consideration thereof, the said Benjamin and Mary did intermarry in September, 1858; that at or immediately after the marriage, the said father, mindful of the promise he had made, and with reference thereto, declared that he had given to his daughter-in-law, Mary, a lot in Washington on which to erect a dwelling-house for herself; that shortly after the marriage, and in part performance of his agreement, he put his son and daughter, the complainants, in possession of the unimproved part of lot No. 18, that they accepted the possession, and, with the consent of the father, erected thereon, with money belonging to the said Mary, and which was her separate estate, a dwelling-house, at the cost of $5000; that the said Mary consented to this application of the money belonging to her, cheerfully, because it was understood between herself and her husband that the said ground, with the house, was to be conveyed to her and her heirs, or in trust for her and their use; that, after the house was erected, the complainants, Mary and Benjamin, took possession of it, with the knowledge and full approval of the father, who lived next door, and had been cognizant of the erection, and in part superintended it; and with his knowledge and approval, rented it to a Mrs. Degges; that the daughter-in-law received and applied the rents to her own uses; and that during the erection of said house, and after its completion, the father often avowed his intention to execute and deliver a deed of the lot and premises to his daughter-in-law, in accordance with his promise.

The bill further stated that in 1861, whilst the said husband and wife, complainants in the case, were temporarily absent from the city of Washington, the father, without their consent, took possession of the house, and had continued to occupy it ever since, against the wishes of the complainants; that even since taking possession of the house, in the manner mentioned, he, the father, had promised to execute a deed for the property to his daughter-in-law, but had, when applied to, refused to make such deed; and the bill charged that the dwelling-house and ground belonged in equity to said daughter-in-law, and that she was entitled to a conveyance thereof from the father, and to an account of the rents and profits thereof since he took possession of the same; and prayed that he might be accordingly ordered to convey to the complainant, Mary, and her heirs, or to some one in trust for her and their benefit, the said parcel of ground and premises, and to render an account of the rents during his occupancy.

The father in his answer admitted, that in 1858 he was possessed as owner of the lots, and that the complainant, Benjamin, was his son; but denied that he was desirous that his son should be married to the said Mary and settled in life, and promised to convey to the said Benjamin and Mary, or either of them, the lot, if such marriage should be consummated; or that in consideration of any such promise on his part such marriage did take place, or that in part performance of such promise he put the complainants in possession of such lot, or that confiding in such promise the complainants did enter upon and take possession thereof and proceed to erect a dwelling-house thereon, as was alleged in the bill. He admitted that a dwelling-house worth about $5000 was erected by the complainant, Benjamin, on the ground; that he knew that the house was erected by the said Benjamin, who, after its completion, held the same until 1861; and he admitted that it July, 1861, during the absence of the complainants, he took possession of the house which had been abandoned by its tenant, and had since occupied it with his family.

The father denied further 'that, after taking possession he promised, as alleged, to convey the ground, or that he so promised at any time,' but admitted 'that after the marriage of complainants, and in 1859, when the complainant, Benjamin, was about to receive certain moneys belonging to his wife from her guardian, he, the respondent, knowing that the habits of the complainant, Benjamin, were intemperate, and wishing to secure to his said wife and children the said moneys, and satisfied that the same would be in jeopardy if paid over to complainant, Benjamin, and by him used in business, consented, on the application of complainant, Benjamin, to give him lot No. 16 in said square, provided he would allow the respondent, or his wife's guardian, to build with the said moneys a dwelling-house thereon, and provided that the said moneys should not be paid into the hands of the complainant, Benjamin, but should, for the said purpose, be applied and disbursed by the respondent or by the said guardian; that the complainant, Benjamin, agreed to these terms, provided the said described part of lot 18, instead of lot 16, was given; and to this change that the respondent assented, subject to the terms and conditions aforesaid; that under this agreement the dwelling-house was begun, but that the said conditions were wholly violated by the complainant, Benjamin, who, without the knowledge or approbation of the respondent, received the said moneys from his wife's said guardian, and used the same in his own business, or otherwise, contrary to the agreement, disposed of same.' That the erection of the house having progressed as far as the first story, his son informed him that he, the son, would be disgraced and ruined if the work was stopped, and that he was without means to proceed further; that he, the father, then borrowed from one Mrs. Sears $2008, for which he gave his note, in which his son joined, and that the note was secured by a deed of trust upon said described portion of lot 18, that this loan was paid over by him (the father) to the son, with the express agreement that it should be devoted to the erection of said dwelling-house, and should not be otherwise disposed of; but that the agreement was violated, and the money used by the son in his business. That this debt was one of those due when the son failed in business, and was paid by him, the father; and the father averred that he never intended to give any part of lot 18, save upon the terms and conditions aforesaid, and that upon the violation thereof he considered himself absolved from his said promise, and more especially so, as his son was largely beyond the value of the house indebted to him.

The testimony, which was marked by some temper, was contradictory and conflicting; but the weight of it showed that the father did encourage the marriage of his son with Miss Hamilton, his now wife, one of the complainants. That he did promise to give the lot in question to her, as a bridal present, at the time and in furtherance of said marriage, it being understood that a dwelling-house was to be built on it with her money. And that with the father's consent, and upon the faith of the promise made by him, a house was erected on the lot with the wife's money. That the house was, after its erection, rented out by the complainants as their property, with the consent of the father, and that the rents thereof were received by them and applied to the use of the wife, with like consent, down to a certain time, when the tenants, becoming alarmed at the threatened invasion of the capital by the rebel army, abandoned the house, and when the possession of the father took place; his son and daughter-in-law being at the time in Maryland, from which State the latter originally came.

That the allegation of debt from the son to the father was not made out.

The father, however, set up and endeavored to show that a part of the money expended in the erection of the said dwelling-house was not the money of his daughter-in-law, but was, in reality, advanced by himself.

The evidence on this point showed that, the son having received from his wife's trustee enough to build the house, did not use it all in this way; but put about $2000 of it into his business; that early in 1861 he failed, and made an assignment of his entire stock and effects, amounting to about $23,000, to his father, the appellant, upon secret trusts. The father testified that he himself paid the $2008 borrowed from Mrs. Sears, from his own private funds; but the son testified, and in this he seemed to be supported by documentary and other evidence, that in making the assignment to his father, he made it subject to the prior payment of certain confidential debts, among which plainly was this one of $2008, for which the lot was mortgaged to Mrs. Sears; and that it was paid out of the proceeds of the stock and effects assigned.

The cause being at issue and set down for hearing, was heard in the first instance upon the original bill, answer, and testimony taken thereunder, by the Supreme Court of the District of Columbia, and after it had been heard, and the proceedings had been read and considered, the said court, of its own motion, and without assigning any reason for their action, 'ordered that the complainants have leave to amend their bill filed in the cause on payment of costs, the amendment to be filed on or before the 15th of November, 1866.'

The case was accordingly heard on an amended bill, which, instead of alleging that the father had promised to give the son or his wife the lot, alleged that he promised to give the lot to the wife, it being understood that she would allow her money to be expended in building upon it a dwelling-house for herself and her heirs. On the amended pleadings, and on substantially the original evidence, the case was heard again, and a decree made that the father should make a deed to a trustee of the house and lot, for the sole use and benefit of his son's wife, freed from liability for the son's debts, or those of any other husband; and that he should account for the rents since the filing of the bill. From that decree the case was now here on appeal.

Messrs. Davidge and P. Phillips, for the father, appellant in the case, contended—

1. That after publication had passed, and the case had been set down for hearing, the bill could not be amended in any other respect than by making new parties. That here the original bill alleged that possession was given to both husband and wife, and accepted by both, and the house erected by the husband with moneys which had been reduced into possession by him; that the whole scheme of it was for the recovery of property in which a married woman might have an interest subject to the marital rights of her husband, whereas the amended bill set up a claim adverse to said marital rights; that this changed the framework of the bill, and made a new case.

2. That to take a case out of the statute of frauds upon the ground of part performance, it was indispensable, not only to show that there was some contract, but to show a contract, clear, definite, and unequivocal in all its terms; that here the terms, as set out in the original bill, were to give and convey, in consideration of the marriage of the complainants, to both of them, or one or the other of them, one or part of one of the lots whereof defendant was seized, to the end that with money then belonging or expected to belong to the oratrix, they might erect thereon a dwelling-house for their habitation and home. How could such a contract be specifically performed? Here were three distinct and inconsistent contracts averred in the bill, and each alleged to have been made in reference to real estate, but to what real estate was left wholly uncertain by the contract. If the contracts were to be regarded as in the alternative, which was not alleged, to which of the three parties belonged the election as to how it should be executed, and when was that election to be exercised?

That, independently of all other things, as a repayment of whatever money of the wife had passed into the lot, would make a her whole, the case, if a case for anything, was one for damages, and not for specific performance.

Messrs. Webb and Kennedy, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Neale v. Neales


text: Talk:Neale v. Neales

title: Talk:Neale v. Neales


text:
Neale v. Neales/Opinion of the Court

It would seem clear, from the manner in which the court below, of its own motion, and without assigning any reasons for this action, gave the complainants leave to amend their bill, that on the original hearing it was satisfied that the evidence made out a case for relief, but a case different from the one stated in the bill; and, that as the pleadings must correspond with the evidence, it was necessary either to dismiss the bill without prejudice, or to give the leave to amend. The court adopted the latter alternative, doubtless, with a view to save expense to the parties, and because such a course could not, by any possibility, work any harm to the defendant.

It is insisted that this proceeding was erroneous; that after a cause has been heard, the power of allowing amendments ceases, or if it exists at all, it cannot go so far as to authorize a plaintiff to change the framework of his bill, and make an entirely new case, although on the same subject-matter, as, it is contended, was done in this instance under the leave to amend.

This doctrine would deny to a court of equity the power to grant amendments after the cause was heard and before decree was passed, no matter how manifest it was that the purposes of substantial justice required it, and would, if sanctioned, frequently embarrass the court in its efforts to adjust the proper mode and measure of relief. To accomplish the object for which a court of equity was created, it has the power to adapt its proceedings to the exigency of each particular case, but this power would very often be ineffectual for the purpose, unless it also possessed the additional power, after a cause was heard and a case for relief made out, but not the case disclosed by the bill, to allow an alteration of the pleadings on terms, that the party not in fault would have no reasonable ground to object to. That the court has this power and can, upon hearing the cause, if unable to do complete justice by reason of defective pleadings, permit amendments, both of bills and answers, is sustained by the authorities.

Necessarily, in a Federal tribunal the matter of amendment at this stage of the progress of a cause rests in the sound discretion of the court. At an earlier stage, this discretion is controlled by the rules of equity practice adopted by this court, but not so upon the hearing, for there is no rule on the subject of amendments applicable to a cause which has advanced to this point. As, therefore, the leave to amend in this instance was within the discretion of the court, we will proceed to dispose of the case on its merits.

It is unnecessary, in the view we have taken of the power of the court over amendments at the hearing, to discuss the question, whether the amended bill is materially different from the original bill. It is enough to know, if different, that the subject-matter of both bills is the same, and that the contract, consideration, promise, and acts of part performance, stated in the amended bill, are stated with sufficient precision, and, if supported by proof, entitle the complainants to the relief which they seek at the hands of a court of equity. The statute of frauds requires a contract concerning real estate to be in writing, but courts of equity, whether wisely or not it is too late now to inquire, have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he had permitted the contract to be partly executed. And equity protects a parol gift of land, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. And this is particularly true, where the donor stipulates that the expenditure shall be made, and by doing this makes it the consideration or condition of the gift.

Was this gift in question made to Mary H. Neale and her children, and has the condition on which it was given been performed so as to make it inequitable for the donor to escape from his engagement? We do not propose to discuss the evidence at length, in order to vindicate the conclusion we have reached in regard to it. It is in many respects conflicting and contradictory, and it is to be regretted that the contest over this property, like all contests between near relations, has elements of bitterness in it. It is enough to say, for the purposes of this suit, that on the whole evidence it is reasonably certain that John E. Neale agreed to give to Mary Hamilton, who was about to marry his son, in furtherance of the marriage, the lot in controversy, for the benefit of herself and children, and for a home for the family, if, with her means, a suitable dwelling-house was erected on it, and that this has been done. On no other theory of this case are the undisputed facts reconcilable with the conduct of the parties. There is no dispute that the husband, before and after marriage, was of dissipated habits; that the father knew it, and had but little confidence in his ability to manage money with judgment, and was desirous that the property of the wife should not be embarked in the husband's business. What so natural as that a father, having a son of this character about to marry a lady of property, should wish to have her property secured against the consequences of her husband's improvidence and dissipation. This could not be done, as he had a lot to give on the occurrence of the marriage, by agreeing to give it to the son if he improved it with his wife's means, because he might sell it and waste the money, or become involved in debt and lose it in that way. Indeed, we are assured from the father's own estimate of his son's character, he feared the happening of one or the other of these events in case he donated the lot to the son, and, to avoid placing his own gift and the wife's inheritance in equal peril, he did what any other parent under like circumstances would have done, gave the lot to the wife, so that, if improved by her, it would be safe at all times from the effects of the husband's folly, and be a secure home for the family. It is true, the declarations of the father on the subject, are, literally taken, contradictory, but we place but little reliance as evidence on his statements made to some witnesses, that the gift was to the son, because they are in conflict with statements frequently made at different times to other persons, that the gift was to the wife, and are inconsistent with his conduct and motives fairly deducible from the other evidence in the case. Besides, in one sense, it is true the gift was to the son, as it was for his benefit, and would not have been made if he had remained single, and in this sense the father doubtless meant his declarations on the subject to be received.

As, therefore, the gift was to the wife, and in fee simple, for a less estate would not secure the object the father had in view, it remains to be seen what was done with the property after the intermarriage of the parties. And here the character of the evidence, and its effect on the issue we are considering, cannot be misapprehended. It appears that shortly after the marriage the house was built with money belonging to the wife, and with the knowledge of the appellant, who lived on an adjoining lot and acted, according to one witness, as general supervisor in the matter. It further appears that on the completion of the house the newly married couple lived in it, for a season, and afterwards rented it, and that during their absence on a casual visit to Maryland in 1861, it having become temporarily vacant by the withdrawal of the tenant, the appellant, without their knowledge and consent, moved into it and still retains posession of it. It is impossible, in view of these facts, which prove that the condition of the gift had been performed, to escape the conclusion that the father at the outset was satisfied with the arrangement, and that his subsequent conduct, tending to show that he had disavowed it, was an afterthought.

It is insisted that a part of the money used in building the house was advanced by the father, who, in conjunction with the son, borrowed it from Mrs. Sears, and that, therefore, the consideration, pro tanto, for the gift has failed. It is clear that the husband received from the wife's guardian more money than was required to build the house, and had agreed with her to devote enough of it to this purpose, but, instead of doing this, unfortunately, he employed a portion of it in his store, which rendered necessary the Sears loan. This loan, secured by the father on the property in controversy, stood on the books of the son as a confidential debt due his wife, and when he failed and assigned his property, he recognized it as such and preferred it over all other debts. There was certainly nothing wrong in this provision, which relieved the property of the wife of an incumbrance created because the husband had misappropriated her money, and, as the father accepted the trust under the assignment, with this debt thus preferred, and at the same time received sufficient property to pay it, it is hard to see wherein he has cause of complaint in this matter, or how he can truthfully say he paid any part of the money that went into the house. In any proper sense the house was built with the wife's money, and equity will give her the benefit of it in this controversy with the father.

As before remarked, the case as stated is made out with reasonable certainty, which is all that is required. Any other degree of certainty in a case of this character is unattainable.

Damages will not compensate for the breach of this contract, nor answer the intention of the parties to it, and a specific performance is therefore essential to the complete ends of justice.

DECREE AFFIRMED.

title: Neale v. Neales/Opinion of the Court


text: Talk:Neale v. Neales/Opinion of the Court


text:
Reese v. United States

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

In December, 1856, one Limantour was indicted at San Francisco by the grand jury of the Circuit Court of the United States for uttering and publishing as true, to the board of land commissioners created under the act of March 3d, 1851, to ascertain and settle private land claims in the State of California, a false writing, purporting to be a grant of certain described lands in California from the Mexican government, with intent to defraud the United States, knowing the same to be false. To this indictment Limantour appeared and pleaded not guilty. He was then admitted to bail, on motion of his counsel, the amount being fixed, by order of the court, at $30,000.

Soon after the issue was thus joined, a motion was made on the part of the United States to set the case for trial early in January, 1857. This motion was resisted, and at the same time application was made on the part of Limantour for a continuance of the cause, and in support of the application his affidavit was read, in which he asserted the genuineness of the grant alleged by the United States to have been forged, and that it was made at the time and by the officers as averred by him. For alleged perjury in making this affidavit the grand jury soon afterwards found a second indictment against him. To this indictment he also appeared and pleaded not guilty, and, upon the motion of his counsel, was admitted to bail, its amount being fixed at $5000.

By order of the court the recognizance of bail was taken in one instrument, the obligation of the sureties being the amount required in both cases. The defendant, Reese, and one Castro, became the sureties of Limantour, binding thmselves jointly and severally in the sum designated. Upon this recognizance the United States brought suit; the present action. The recognizance recited the finding and presentment of the two indictments, the commitment of Limantour thereon, and the order of the court for his discharge on furnishing the required bail, and was conditioned that Limantour should personally appear at the next regular term of the Circuit Court to be held in the city of San Francisco, and at any subsequent term to be thereafter held in that city, to answer all such matters and things as should be objected against him, and to abide the order of the court and not depart therefrom without leave first obtained. This recognizance was dated the 5th of February, 1857.

At the subsequent term of the Circuit Court, in August of that year, Limantour appeared and was ready and pressing for trial in both cases, with witnesses in attendance from the city of Mexico. The district attorney thereupon moved for a postponement of the trials. At this time two cases of Limantour for land claimed under alleged Mexican grants were pending in the District Court of the United States on appeal from decrees of the land commissioners, by whom the claims had been confirmed. One of the cases was for a claim under the alleged forged grant. The witnesses in attendance were persons who had been brought from Mexico to testify in the land cases, and they were obliged to return without delay. It was therefore stipulated between the district attorney and the counsel of Limantour, on the one side that the postponement desired by the government should be assented to, and on the other side that neither of the criminal actions should be brought to trial until after final decrees had been rendered in the two land cases by the District Court; and if both or either of the decrees were in favor of the claimant that the criminal actions should be dismissed by the United States; but if the decrees were adverse to the claimant that reasonable time should be given him to prepare for the trial of the criminal actions, and to procure the attendance of such of his witnesses as resided without the State of California. The stipulation was entered upon the minutes of the court, and the postponement desired was granted, by order of the court, in accordance with its terms.

With this stipulation, the sureties on the recognizance had nothing to do in any way, and had, in fact, no knowledge of it.

It was proved at the trial, without objection, that it was fully understood by all parties at the time that if the stipulation should be made, Limantour and his witnesses would return to Mexico and remain there until the civil cases in the United States District Court were finally disposed of, and that Limantour should afterwards have time enough allowed him to give notice to his witnesses and get them and return with them to San Francisco.

The result was that the witnesses of Limantour returned at once to Mexico, and after two or three months' delay Limantour followed them, and never returned to California.

In November, 1858, the District Court by its decrees rejected the claims of Limantour in both of the land cases, and soon afterwards the district attorney moved that the criminal actions be set for trial. After repeated adjournments the motion was finally argued and decided in March, 1859, and on the 26th of that month were set for trial for the 25th of April following. On this latter day the two actions were called, and Limantour was called in both, but he did not appear in either of them, and thereupon an order was entered forfeiting the recognizance of bail.

By stipulation of the parties the case was tried in the Circuit Court without the intervention of a jury, and that court gave judgment for the United States. The surety, Reese, accordingly brought the case here by writ of error.

Mr. E. Casserly, in his behalf, citing, and relying particularly upon Rees v. Berrington, and the English and American notes to it, as given in the Leading Cases in Equity, in which case Lord Loughborough states that it was 'the clearest and most evident equity not to carry on any transaction without the privity of him who must necessarily have a concern with the principal debtor,' argued that though the recognizance here was, when taken, a valid obligation, yet that the sureties had been discharged by matter subsequently arising out of the written stipulation for a postponement of the criminal actions against their principal, Limantour, for a long and uncertain period, made, without their knowledge or privity in any way, between him and the United States, in August, 1857, and then entered as an order of court; and by the circumstances connected with the same.

The Attorney-General, Mr. Hoar, submitted the case on the record, which contained the opinion of the court below, in which the court observed on this particular point that the stipulation of August, 1857, though most unusual in all its features, might be justified. The court said:

'The grant alleged to be forged, and in swearing to the genuineness of which the forgery was charged, had been adjudged valid by the board of land commissioners, and the appeal from its decree was at the time pending undetermined. The postponement of the trial until this appeal was disposed of was a very proper exercise of the power of the court, provided the accused waived his right to a speedy trial and assented to the postponement. In this act we do not perceive any ground upon which the bail can claim exemption from liability on their recognizance. They were not bound to continue as sureties any longer from this circumstance than without it. They could at any time afterwards have surrendered the defendant and been exonerated. In the theory of the law he was in their custody, as jailers of his own choosing, subject to be surrendered at any moment. If they failed to exercise their power over him they must bear the responsibility attached to the position they voluntarily assumed.'

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Reese v. United States


text: Talk:Reese v. United States

title: Talk:Reese v. United States


text:
Reese v. United States/Opinion of the Court

As a defence to this action the defendant relied in the Circuit Court upon several grounds, the principal of which were these:

First. That the acts charged in the two indictments did not, at the time of their alleged commission, constitute any offence under the laws of the United States; and, as a consequence, that the indictments and all proceedings thereunder, including the requiring of bail for the appearance of the party indicted, were void.

Second. That if the indictments and proceedings thereunder were not void, the stipulation of August, 1857, for a postponement of the trials, released the sureties from liability on their recognizance; and

Third. That the recognizance was void in embracing the amount required as bail upon both indictments.

The third ground here stated is not pressed in this court. The other two grounds are substantially the same which are urged here, differing only in their form of statement. Upon the first of these we express no opinion. Upon the second we are of opinion that the Circuit Court erred, and for reasons which may be briefly stated.

The condition of the recognizance provided for the personal appearance of Limantour at the then next regular term of the Circuit Court in San Francisco, and also at any subsequent term to be thereafter held in that city. It has been suggested that the provision for the appearance of the party at any term subsequent to that succeeding his arrest is unusual and invalid, but we do not pass upon the suggestion, and for the purposes of this case we shall treat the recognizance as unobjectionable in form. At the next regular term after its execution the party personally appeared with his witnesses and pressed the trial of the indictments. The first portion of the condition of the recognizance was thus complied with. The provision for his appearance at any subsequent term had reference to such subsequent term as might follow in regular succession in the course of business of the court. It was inserted to obviate the necessity of renewing the bail every time the cases were, from any cause, continued from one term to another. It was not intended to apply to any distant future term to which either party might be disposed to postpone the trials without reference to any intervening term. The principal and sureties by their recognizance covenanted with the United States that the principal should appear before the court and answer all such matters as might be objected against him at the next term, and from term to term until the cases were disposed of; not that he should appear at the next term, and then at a term years later, depending for its designation upon the happening of a contingent event.

The stipulation in this case was for a postponement of the trial of the criminal actions for a period of uncertain duration; until final decrees should be rendered by the District Court of the United States in certain cases pending on appeal from the board of commissioners created under the act of March 3d, 1851, to ascertain and settle private land claims in the State of California. Cases on appeal form that board were not heard upon the record transmitted to the court, and therefore were not subject to be disposed of whenever they could be argued. They were tried anew upon the testimony and proceedings had before the board and such further testimony as might be produced by the parties in the District Court. The proceedings in the court advanced slowly when new testimony was produced, as it was required to be taken in writing and by question and answer. Independent of this circumstance it was difficult to anticipate the period which any case, meeting with opposition and seriously contested, would occupy. The difficulty of determining in advance the duration of litigated proceedings, which exists in all cases, was increased with respect to Mexican land cases, appealed from the board to the District Court of the United States, by a variety of causes; among others, from the manner in which the testimony was taken, as already stated; the necessity of looking into the archives of the former department of California, and sometimes of the supreme government at the city of Mexico; of examining Mexican witnesses, ignorant of our language, and of interpreting Mexican and Spanish usages, ordinances, and laws. In the cases of the city of San Francisco and of the city of Sonoma, the appeals were pending in the District Court for over eight years. These cases of Limantour involved lands in the city of San Francisco and adjoining it, covered with buildings and expensive and permanent improvements, which were of the value of many millions. His claims were, for this reason, as well as their supposed fraudulent character, vigorously contested, not only by the United States, but by citizens of San Francisco, acting in concert with the district attorney. A final disposition of them until after the lapse of many months, and perhaps of several years, could not, therefore, have been reasonably anticipated.

The stipulation to postpone the trials until after such final disposition was inconsistent with the condition of the recognizance. It released Limantour from the obligation of appearing at any subsequent term following the then next term in regular succession. It substituted for it an agreement that he need not appear at any such subsequent term, but only at such term as might be held after the happening of an uncertain and contingent event. The stipulation, in other words, superseded the condition of the recognizance.

This will readily appear if we consider the condition, which, subsequent to that stipulation, must have been exacted in a new recognizance, if the sureties on the present recognizance had surrendered their principal. It could not have been for the appearance of the defendant at the next regular term thereafter, or any succeeding term, for such a condition would have been inconsistent with the stipulation. It could only have been for his appearance at such term as might be designated by the district attorney or the Circuit Court, after the final decrees were rendered by the District Court in certain land cases pending therein on appeal from the board of land commissioners; provided always, that such decrees were against the claimant; and provided further, that the term designated allowed reasonable time to the defendant to prepare for trial, and to procure the attendance of witnesses residing out of the State. It requires no argument to show that a condition like this would be a very different one from that embodied in the existing recognizance.

If, now, we apply the ordinary and settled doctrine, which controls the liabilities of sureties, it must follow that the sureties on the recognizance in suit are discharged. The stipulation, made without their consent or knowledge, between the principal and the government, has changed the character of his obligation; it has released him from the obligation with which they covenanted he should comply, and substituted another in its place.

It is true, the rights and liabilities of sureties on a recognizance are in many respects different from those of sureties on ordinary bonds or commercial contracts. The former can at any time discharge themselves from liability by surrendering their principal, and they are discharged by his death. The latter can only be released by payment of the debt or performance of the act stipulated. But in respect to the limitations of their liability to the precise terms of their contract, and the effect upon such liability of any change in those terms without their consent, their positions are similar. And the law upon these matters is perfectly well settled. Any change in the contract, on which they are sureties, made by the principal parties to it without their assent, discharges them, and for obvious reasons. When the change is made they are not bound by the contract in its original form, for that has ceased to exist. They are not bound by the contract in its altered form, for to that they have never assented. Nor does it matter how trivial the change, or even that it may be of advantage to the sureties. They have a right to stand upon the very terms of their undertaking.

There is also another view of the stipulation which leads to the same result. By the recognizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact, in this country at least, subjected or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty. This power of arrest can only be exercised within the territory of the United States; and there is an implied covenant on the part of the principal with his sureties, when he is admitted to bail, that he will not depart out of this territory without their assent. There is also an implied covenant on the part of the government, when the recognizance of bail is accepted, that it will not in any way interfere with this covenant between them, or impair its obligation, or take any proceedings with the principal which will increase the risks of the sureties or affect their remedy against him.

The stipulation in this case was made with the distinct understanding of the parties, that upon its execution Limantour and his witnesses would return to Mexico, and would remain there until the civil cases in the District Court were finally disposed of, and that he should afterwards have time allowed him to obtain his witnesses and return to this country with them. The government thus consented that Limantour might depart out of the territory of the United States to a foreign country, where it would be impossible for the bail to exercise their right to arrest and surrender him; and further, it consented that he might remain abroad for a period of indefinite duration. This was all done without the concurrence or even knowledge of the sureties, whose risks were thus greatly increased.

It would be against all principle and all justice to allow the government to recover against the sureties for not producing their principal, when it had itself consented to his placing himself beyond their reach and control.

Judgment REVERSED, and the cause remanded for a new trial.


text: Talk:Reese v. United States/Opinion of the Court


text:
McGoon v. Scales

ERROR to the Circuit Court for the District of Wisconsin; the case, or the only parts of it, which the court deemed it necessary to notice, being thus:

McGoon brought ejectment against Scales in the court below for a piece of land in Wisconsin Territory, which the United States had granted to one Gear. Both parties claimed under Gear.

The defendant Scales's title, which it will most conduce to clearness to consider first, was thus:

On the 2d of November, 1842, Gear and wife conveyed the land in question to James Campbell as trustee of the State Bank of Illinois, and though the patent from the United States issued to Gear ten years later, it is conceded by both parties that its effect was to make good the title conveyed by him to Campbell. The deed, after reciting that Gear was indebted to the bank in the sum of fifty thousand dollars, to satisfy which debt the bank had agreed to take the real estate mentioned in the deed, conveyed the land to Campbell, who was to stand seized of the premises upon the trust and confidence that they should be sold by him for such a sum as should be directed by the bank, and the proceeds applied to the sole use and benefit of the bank; and if not sold, then that Campbell was to stand seized to the use of the bank and its assigns.

Campbell did not sign the deed nor accept the trust otherwise than by silence.

In 1850 the legislature of Wisconsin passed a statute which abolished uses and trusts except as preserved in the act. One of the provisions of the statute was that—

'Every person who, by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof in law or equity, shall be deemed to have the legal estate therein.'

Other provisions of the statute defined the only cases in which valid express trusts might be made.

On the 31st October, 1848, the bank made a conveyance of the lands to Manly, Calhoun, and Ridgely for the benefit of the creditors of the institution and for the payment of its debts. The deed, however, was special in form, and made under circumstances which it is necessary to state. For many years before it was made the bank had been embarrassed, and several statutes were passed by the legislature of Illinois for the purpose of enabling and compelling it to close its business and pay its liabilities. The last of these, approved March 1st, 1847, required the officers of the bank, if they should not have closed up its affairs prior to the 1st day of November, 1848, to turn over to three persons to be named by the governor, all the property, rights, and credits of the bank, when the trustees were to proceed to wind up its affairs. The governor, under this act, named Manly, Calhoun, and Ridgely as the persons to take charge of the bank, and on the day before the power of the bank to act ceased by law the conveyance we have mentioned was made by order of the board of directors. In this deed of conveyance they recited that it was made in pursuance of the act of March 1st, 1847, and for the purpose of carrying into effect its provisions, and that it was made to those persons because they had been so appointed by the governor under that act.

The last section of the act just referred to, after that previous section of it, and, indeed, previous statutes had fully defined the duties and powers of these trustees, declared that 'the real estate of said bank shall be liable to taxation and sale on execution in the same manner as the property of individuals.'

In this state of things, a statute of Wisconsin having declared that 'lands, tenements, and real estate holden by any one in trust for another, shall be liable to debts, judgments, decrees, executions, and attachments against the person to whose use they are holden,' one Henry Corwith, in August, 1853, commenced a suit in the State court of Wisconsin against the State Bank of Illinois, and attached these lands. Manly, Calhoun, and Ridgely entered an appearance to the suit, and moved to dissolve the attachment; and the bank, by its attorney, appeared and defended the suit.

Under these proceedings (the legislature of Wisconsin having made provision by special statute for a case in which a bank, whose functions had ceased, but which yet owned property, and owed debts in Wisconsin, might be sued and the property subjected to the payment of those debts), Corwith got judgment; and by a writ of execution, which had no seal at the time, though one was afterwards put by order of the court, upon motion to amend, sold the land to one Earnest (no party to the suit), who transferred his certificate to Scales, the defendant. The judgment under which this sale was made was afterwards set aside; but after many efforts in the State courts to set aside this sale, it was finally affirmed in the courts of Wisconsin, including the Supreme Court, and the defendant, Scales, received the sheriff's deed on that sale on the 17th March, 1868.

Such was the defendant's title. The plaintiff claimed under several different titles. Among them was:

1st. By deed of quit-claim from Gear, dated January 17th, 1867.

2d. By deed dated July 12th, 1865, from James Campbell, trustee under Gear's trust deed of November, 1842.

3d. By deeds under tax sales, in 1849, from the clerk of the board of supervisors of the county in Wisconsin where the lands were, to the county, and from the county to him, McGoon, the plaintiff.

The court below told the jury that the defendant's title was the true title, and the verdict and judgment having gone accordingly, the case was now here for review.

Messrs. Carlisle and Magoon, for the plaintiff in error, contended,

That the deeds under the tax sales, in 1849, of themselves passed title.

That Gear's deed of trust to Campbell vested the estate in Campbell alone; that the estate was not a dry estate, but an active trust, and the trustee's title in ejectment good against the world. The recent and as yet unreported case of Goodrich v. City of Milwaukee, in the Supreme Court of Wisconsin, on which the counsel much relied, showed this, as they argued. Accordingly, the Wisconsin statute of 1850 had not vested the estate in the bank, but it remained in Campbell, and by his deed of 1865 passed to McGoon.

Even if this were not so, that the bank, by its general assignment of 31st October, 1848, had passed the lands to those trustees, and that nothing remained on which Corwith's attachment of 1853 against the bank could operate.

That, independently of all these, the bank, in 1853, was dead in law, its charter having expired, and itself having assigned all its estate.

That the judgment under which the sale was made was reversed, and that the sale made under it fell accordingly.

That the execution had no seal, a defect which by common law and the statutes of Wisconsin made the writ void.

Mr. Justice MILLER delivered the opinion of the court.

title: McGoon v. Scales


text: Talk:McGoon v. Scales

title: Talk:McGoon v. Scales