text:
Mowry v. Whitney/Opinion of the Court

The bill was demurred to, and the demurrer sustained, on two grounds:

First. That the extended patent had expired, by its own limitation, before the bill was filed; and

Secondly. That the complainant could not, in his own right, sustain such a suit.

As regards the first of these propositions we do not deem it necessary to make any decision. When a case arises in which the United States, or the Attorney-General, shall initiate a suit to have a patent declared null, ab initio, which, though no longer in force as to present or future infringements, is used to sustain suits for infringements during its vitality, the question will be considered; for we are of opinion that no one but the government, either in its own name or the name of its appropriate officer, or by some form of proceeding which gives official assurance of the sanction of the proper authority, can institute judicial proceedings for the purpose of vacating or rescinding the patent which the government has issued to an individual, except in the cases provided for in section sixteen of the act of July 4th, 1836.

The ancient mode of doing this in the English courts was by scire facias, and three classes of cases are laid down in which this may be done.

1. When the king by his letters-patent has by different patents granted the same thing to several persons, the first patentee shall have a scire facias to repeal the second.

2. When the king has granted a thing by false suggestion, he may be scire facias repeal his own grant.

3. When he has granted that which by law he cannot grant, he jure regis, and for the advancement of justice and right, may have a scire facias to repeal his own letters-patent.

The scire facias to repeal a patent was brought in chancery where the patent was of record. And though in this country the writ of scire facias is not in use as a chancery proceeding, the nature of the chancery jurisdiction and its mode of proceeding have established it as the appropriate tribunal for the annulling of a grant or patent from the government. This is settled so far as this court is concerned by the case of the United States v. Stone, in which it is said that the bill in chancery is found a more convenient remedy. A bill of this character was also sustained in the English chancery in the case of the Attorney-General v. Vernon, on the ground of the equitable jurisdiction in matters of fraud. And in the case of Jackson v. Lawton, Chancellor Kent says that in addition to the writ of scire facias, which has ceased to be applicable with us, there is another remedy by bill in the equity side of the court of chancery.

It will be observed that in the case of a conflict under two patents granting the same right, the scire facias may, according to the authorities cited, be brought in the name of one of the patentees, but in the other cases, when the patent was obtained by a fraud upon the king, by false suggestion, or where it was issued without authority, and for the good of the public and right and justice it should be repealed, the writ is to issue in the king's name or his attorney-general's. It is also said that when a patent is granted to the prejudice of the subject, the king of right is to permit him upon his petition to use his name for the repeal of it, in scire facias at the king's suit.

The 16th section of the Patent Act of 1836 seems to have in view the same distinction made by the common law in regard to annulling patents, for while it authorizes individuals claiming under conflicting patents, or one whose claim to a patent has been rejected because his invention was covered by a patent already issued, to try the conflicting claim in chancery, and authorizes the court to annul or set aside a patent so far as may be found necessary to protect the right, the suit by individuals is limited to that class of cases. And it is provided that the decree shall be of no validity except between the parties to the suit. The general public is left to the protection of the government and its officers.

It seems reasonable that the remedy by bill in chancery, which is substituted for the scire facias, should have the like limitation in its use. The reasons for requiring official authority for such a proceeding are obvious. 1. The fraud, if one exists, has been practiced on the government, and as the party injured, it is the appropriate party to assert the remedy or seek relief. 2. A suit by an individual could only be conclusive in result as between the patentee and the party suing, and it would remain a valid instrument as to all others. 3. The patentee would or might be subjected to innumerable vexatious suits to set aside his patent, since a decree in his favor in one suit would be no bar to a suit by another party. If, on the other hand, an individual finds himself injured, either specially or as a part of the general public, it is no hardship to require him to satisfy the Attorney-General that the case is one in which the government ought to interfere either directly by instituting the suit, or indirectly by authorizing the use of its name, by which the Attorney-General would retain such control of the matter as would enable him to prevent oppression and abuse in the exercise of the right to prosecute such a suit.

It would seriously impair the value of the title which the government grants after regular proceedings before officers appointed for the purpose, if the validity of the instrument by which the grant is made, can be impeached by any one whose interest may be affected by it, and would tend to discredit the authority of the government in such matters.

DECREE AFFIRMED.

title: Mowry v. Whitney/Opinion of the Court


text: Talk:Mowry v. Whitney/Opinion of the Court

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


text:
Improvement Company v. Munson

IN error to the Circuit Court for the Eastern District of Pennsylvania; in which court, Munson and others brought ejectment against The Schuylkill and Dauphin Improvement Company and two other like companies, all corporations of Pennsylvania, to recover certain valuable lands in the State just named. Judgment having gone for the plaintiffs, the companies brought the case here.

Mr. N. H. Sharpless, for the plaintiff in error; Messrs. G. W. Woodward, F. B. Gowen, and J. E. Gowen, contra.

Mr. Justice CLIFFORD stated the case, and delivered the opinion of the court.

title: Improvement Company v. Munson


text: Talk:Improvement Company v. Munson

title: Talk:Improvement Company v. Munson


text:
Improvement Company v. Munson/Opinion of the Court

Rules of decision in the courts of the United States, as well as the forms and modes of process, are very largely derived from the laws of the States as construed by the decisions of the State courts, in cases where they apply, except where the Constitution, treaties, or statutes of the United States otherwise require or provide.

Controversy having arisen between the parties in respect to the title to the tract of land described in the record, the plaintiffs, on the sixth of February, 1866, brought an action of ejectment against the three corporation defendants and the other defendants therein named, to recover the possession of the tract, alleging that the title to the tract and the right of possession were in them and not in the defendants. Service was duly made and the defendants appeared and pleaded that they were not guilty as alleged in the declaration. Issue was joined upon that plea and the parties went to trial, and the verdict and judgment were for the plaintiffs. Exceptions were duly taken by the defendants, and they sued out a writ of error and removed the cause into this court.

Title to the premises in controversy is deraigned by the plaintiffs from one Benjamin Bonawitz, whose claim to the same is supposed to be established by the following documentary evidences of title, as more fully set forth in the bill of exceptions: (1.) An application to the land office of the State, dated December 14th, 1829, made by him for sixty-six acres of unimproved land in Lower Mahantongo Township, Schuylkill County, bounded as therein described. (2.) Warrant from the State, of the same date, to the applicant for the land described in the application, as fully set forth in the record. (3.) Return of survey made by a deputy surveyor of the county, June 1st, 1829, in pursuance of the warrant, as duly returned to the land office, and accepted the fifth of March of the succeeding year, as follows, to wit: Situate in Lower Mahantongo Township, Schuylkill County, containing sixty-six acres and one hundred and three perches, and allowance of six per cent., returned this third day of March, 1830, in pursuance of a warrant dated the 14th of December, 1829, to Benjamin Bonawitz. Superadded to the return is the following statement, that the lines and corners of the survey were made on the eighteenth of June, 1829, in pursuance of a warrant dated the seventeenth of March of that year, granted to the same person, a return on which was made, but was rejected on account of the survey not answering the description of the warrant. (4.) Sundry mesne conveyances from the warrantee and subsequent grantees of the land described in the warrant, to the plaintiffs.

Appended to the statement that those conveyances were introduced is the admission of the counsel for the defendants that Schuylkill County was erected out of Berks County, and that Porter Township, where the premises are situated, as alleged in the declaration, was created out of Lower Mahantongo Township, which is the name of the township where the location was made under the warrant, survey, and return.

Documentary evidences of title were then introduced by the defendants to maintain the issue on their part, as follows: (1.) An application, dated July 1st, 1793, made by Jacob Yeager to the land office for four hundred acres of and adjoining land granted the same day to William Witman, Jr., in the county of Berks. (2.) Warrant from the State, dated July 1st, 1793, to Jacob Yeager for the same land, as more fully set forth in the bill of exceptions. (3.) Return of survey on the warrant by the deputy surveyor of Berks County, on the tenth of July, 1794, of four hundred and forty acres and sixty-four perches of land and allowance, situate in Pinegrove Township, in the county of Berks, returned and accepted August 26th, 1794, as therein certified. (4.) Sundry conveyances were also offered in evidence by the defendants, tending, as they contend, to deduce title to the said corporations, or one of them, to the land located and surveyed under the warrant to Jacob Yeager, which includes the land embraced in the warrant and survey under which the plaintiffs deraign their title.

Rebutting evidence was then introduced by the plaintiffs: (1.) Certified copies of eighteen applications, dated July 1st, 1793, to the land office, for four hundred acres each, the leading one being in the name of James Silliman, and one of the number being the application by Jacob Yeager given in evidence by the defendants, as follows: Jacob Yeager applies for four hundred acres of land adjoining land this day granted to William Witman, Jr., in the county of Berks. (2.) Certified copies of eighteen descriptive warrants, issued upon those applications, including the warrant given to Jacob Yeager, introduced in evidence by the other party. (3.) Also certified copies of eighteen surveys, including the Jacob Yeager tract, made by a deputy surveyor of Berks County, upon those warrants, corresponding with the descriptions set forth in the warrants, the certificate of the survery in question being fully set forth in the bill of exceptions. (4.) Return and acceptance of those eighteen surveys, made by Henry Vanderslice, July 16th, 1793, as appears in the list annexed to the return. They also introduced a certified copy of a caveat, entered July 18th, 1793, by John Kunckle and Aaron Bowen against granting the tracts either to the said Jacob Yeager or to any one of the other seventeen applicants under the warrants included in that list. (5.) Certificate from the office of the surveyor-general that no proceedings had ever been had upon the said caveat.

By that certificate it appears that diligent and careful search had been made in that department for proceedings on that caveat, and the proper officer certifies that he does not find that any citation was ever applied for, or that any proceedings or action was ever had by the board of property upon or concerning the same, which remains recorded in the office of the surveyor-general. (6.) They also offered in evidence a map, showing the two locations of the Jacob Yeager tract, the first by Henry Vanderslice, and the second by William Wheeler, both deputy surveyors of Berks County. (7.) Both sides admitted that Henry Vanderslice was a deputy surveyor of Berks County, and that the location of the Jacob Yeager tract as made by him was made in the county of Northumberland, within one mile of the line between that county and Berks County, and that the second location of the warrant by William Wheeler was made in Berks County, about twenty-two miles distant from the survey made by the other deputy surveyor.

Responsive to the rebutting evidence given by the plaintiffs the defendants then introduced certified copies of returns of surveys made by William Wheeler, July 10th, 1794, upon the Jacob Yeager warrant, and upon three others of the eighteen warrants returned and accepted, August 26th of that year, together with a connected chart of the four tracts, as prepared from the original surveys on file in the office of the surveyor-general.

Neither party desiring to offer any further evidence the presiding justice proceeded to charge the jury. Speaking of the warrant and survey introduced by the plaintiffs, he told the jury that the court saw no defect in the plaintiffs' title under that warrant and survey, adding that the only claim which the defendants have set up is under warrants located several miles from the land in controversy by surveys returned and accepted, and to that instruction no exception was taken by the defendants. But the court also told the jury that 'no subsequent official survey of the land under those warrants, without a warrant of survey or order of the board of property, was authorized.' Therefore, said the justice, if the jury take the same view of the evidence as the court, the verdict should be for the plaintiffs, and the jury followed that instruction, and the defendants excepted.

Two errors are assigned, as follows: (1.) That the court erred in charging the jury that no subsequent official survey of the land under those warrants, without a warrant of survey or order of the board of property, was authorized. (2.) That the court erred in telling the jury that if they took the same view of the evidence as the court the verdict should be for the plaintiffs, as the effect of the instruction, as the defendants contend, was to withdraw from the jury the consideration of the question whether or not the board of property might not have issued an order for a second survey of the tract, the evidence of which had been lost.

Much discussion of the first error assigned is unnecessary, as the defendants admit that the law is well settled in that State that a warrant, where it appears that a survey has been ordered upon it and made, returned, and accepted, is functus officio, and that no title under a second survey can be made unless such second survey was ordered by the board of property, which it is admitted is not directly proved in this case. Such an admission by the defendants is a very proper one, as the decisions of the State court which furnish the rule of decision for this court in this case are very numerous and decisive to that effect. Perhaps the leading case upon the subject is that of Deal v. McCormick, in which Gibson, J., said, 'The law is well settled that after a survey made and returned into office, a second survey without an order of the board of property is merely void.' If the owner of a warrant be prejudiced by the frand or mistake of the officer, the board of property, which is a board created by statute, will grant him relief, if no new right has attached itself to the land, but a new survey, even pursuant to an order of the board, will not affect an intervening claim.

Doubtless the official surveyor may correct his survey while the warrant remains in his hands, but his control over it ceases after his return has been made to the land office, and the decisions are direct that no second survey thereon without an order for that purpose is of any validity whatever, either aginst the State or any other claimant, or, as Justice Strong said, in the case of Hughes v. Stevens: A second survey without an order for it amounts to nothing, as it is merely an unofficial act, which cannot give the warrantee any rights either against the State or any other claimant of the tract.

2. Whether the Circuit Court erred, as alleged in the second assignment of errors, depends upon the disputed fact whether there was any evidence in the case which would have warranted the jury in finding that an order for a second survey was ever granted by the board of property, as it is settled law that it is error to submit a question to a jury in a case where there is no evidence upon the subject.

It is clearly error in a court, said Taney, C. J., in United States v. Breitling, to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered, as such an instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the fact hypothetically assumed in the charge of the court, and if there be no evidence which they have a right to consider, then the charge does not aid them in coming to a correct conclusion, but its tendency is to embarrass and mislead them in their deliberations. When a prayer for instruction is presented to the court and there is no evidence in the case to support such a theory it ought always to be denied, and if it is given, under such circumstances, it is error; for the tendency may be and often is to mislead the jury by withdrawing their attention from the legitimate points of inquiry involved in the issue. Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury, but recent decisions of high authority have establihsed a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.

Very strong doubts are entertained whether the construction, of the language employed by the judge, assumed by the defendants, is the correct construction of the same, and the settled rule is if the charge is merely ambiguous the party dissatisfied with it should have requested to have it made clear before the jury left the bar; that a party under such circumstances may not acquiesce in the correctness of the instruction by his silence and take his chance with the jury, and them be allowed, if the verdict is aginst him, to claim the benefit of the ambiguity without having invited attention to the subject and given the court an opportunity to have made the correction to the jury. Much weight is certainly due to the suggestions of the plaintiffs, that the judge did not withdraw the evidence from the jury, if any there was in the case, that the language only warrants the conclusion that he expressed his own opinion, as he had a right to do, if he thought it proper, and left the question to the determination of the jury. Assume that to be the true construction of the language employed, and it is quite clear that the exception cannot be sustained, but the court is not inclined to place the decision upon that ground, as it is even clearer that there was no evidence in the case which would have warranted the jury in finding that an order for a new survey was ever granted by the board of property, as required by law and the repeated decisions of the Supreme Court of the State.

Lost instruments may be proved by parol testimony where it is shown that the instrument once existed and is lost, and the proof of loss, where it is first shown that it once existed, may consist of evidence showing diligent and unsuccessful search and inquiry in the place where it was usually kept or in which it was most likely to be found, if the nature of the case admitted of such proff. Presumptions of law are frequently absolute and conclusive, as they determine the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. Such presumptions arise in respect to the intermediate proceedings in cases where lands are sold under licenses granted by courts to executors, administrators, guardians, and other officers, where they are reqired to advertise the sales in a particular manner, and to observe other formalities in their proceedings. Lapse of time, usually for the period of thirty years, affords a conclusive presumption in such cases, if the license and the official character of the party and the deed of conveyance are proved, that all the intermediate proceedings were correct. Were it otherwise great uncertainty of titles, and other public mischiefs, would ensue, but the rule that lapse of time accompanied by the acquiescence of parties adversely interested does not in general extend to records and pulbic documents which are supposed always to remain in the custody of officers charged with their preservation, and which, therefore, must be proved or their loss accounted for by secondary evidence.

Surveys, it seems, were sometimes made in that State by deputy surveyors in early times without going upon the land, by plotting the chart and marking the lines and corners in their offices, and those surveys are called 'chamber surveys,' but such surveys were forbidden by the act of the State legislature of the eighth of April, 1785, which enacts that every survey hereafter to be returned into the land office upon any warrant issued after the passing of the act shall be made by actually going upon the land and measuring the same and marking the lines. Decided cases are referred to by the defendants where it is held that in controversies respecting titles under those surveys there arises a conclusive presumption, after the lapse of twenty-one years from the return of the survey into the land office, that the survey was regularly made upon the ground as returned and required by law. Evidently the cases referred to must be regarded as establishing a rule of property in that State, but the court here is of the opinion that they are not applicable in this case, as the defect in the defendants' title arises from the fact that the new survey was made without any order to that effect ever having been granted by the board of property as required by law. Surveys made under those circumstances are simply void, as shown by the best considered cases upon the subject decided by the highest court of the State.

Attempt is made in this case to supply by presumption a matter absolutely necessary to give legality to the survey and without which it is a nullity and amounts to nothing, but is held to be as worthless as if there had never been any warrant at all. Viewed in that light, as it must be, it is clear that the case falls within the decision of the court in the case of Wilson v. Stoner, which, indeed, is decisive of the controversy. It was there decided that a survey is not evidence without first showing an authority to make it, or proving that such authority existed and was afterwards lost. Possession in that case was proved for upwards of thirty years under a survey in the handwriting of an assistant deputy surveyor, indorsed 'copied for return,' with a memorandum by him that there was authority to make it, but the court held that those circumstances could not be received as affording presumptive evidence from which the jury might draw the necessary conclusion, as matter of fact, that even if the existence of the location was admitted, some account of its loss would have to be given before secondary evidence of its contents could be received, as without that the survey would be inadmissible for want of a previous authority. Unless it can be shown that the rule laid down in that case is not good law it is quite clear that the second error assigned must also be overruled, as the defendants did not prove possession for any considerable time, or occupation of the premises, nor the making of any improvements upon the same, nor the payment of any taxes assessed upon the land. On the contrary, they proved nothing except the mere lapse of time, unaccompanied by evidence of possession, or of improvements, or the payment of taxes, or any other circumstance, as a ground of presumption to warrant the jury in finding that the board of property ever granted a new warrant of survey or made any order of a character to give legality to the title set up in their behalf, which is all that need be remarked to show that there is no error in the record. Unquestionably lost records may be proved by secondary evidence, but their former existence and loss must first be established by competent proof, and it is clear that evidence merely showing that they do not exist is not sufficient to establish either of those requirements.

JUDGMENT AFFIRMED.

Mr. Justice STRONG having been of counsel for one of the parties did not sit.


text: Talk:Improvement Company v. Munson/Opinion of the Court


text:
Nicolson Pavement Company v. Jenkins

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

On the 8th of August, 1854, Samuel Nicolson obtanied letters-patent for an improvement on wooden pavements. On the 1st of December, 1863, he obtained a reissue. He then, December 1st, 1864, made an assignment to Jonathan Taylor thus:

'Whereas I, Samuel Nicolson, invented a certain new and useful improvement in wooden pavements, of which letters-patent of the United States of America (numbered 1583 of reissued patents, and bearing date the 1st of December, 1863) have been granted to me, giving to me and my legal representatives the exclusive right of making, using, and vending the said invention throughout the said United States; the original patent being dated August 8th, 1854, and given for the term of fourteen years.

'And whereas Jonathan Taylor has agreed to purchase from me all the right, title, and interest which I have in and to the said invention for and in the city of San Francisco, as secured by the said letters-patent, and has paid to me the sum of one dollar, the receipt whereof is hereby acknowledged.

'Now, therefore, this indenture witnesseth, that for and in consideration of the said sum to me paid, I have assigned, sold, and set over, and do hereby assign, sell, and set over, unto the said Taylor, all the right, title, and interest which I have in the said invention and letters-patent for and in the said city of San Francisco, but in no other place.

'The same to be held and enjoyed by the said Taylor for the use and behoof of him and his legal representatives to the full end of the term for which the said letters-patent are or may be granted, as fully and effectively as the same would have been held and enjoyed by me had this assignment never been made.'

Afterwards, August 20th, 1867, Nicolson obtained another reissue of the same letters-patent on an amended specification; and he having died in January, 1868, intestate, the Commissioner of Patents, on the application of his administrator, on the 7th of July, 1868, renewed and extended the letters-patent for seven years from the 8th of August, 1868, under the well-known 18th section of the act of July 4th, 1836, and the act of Congress of May 27th, 1848.

The right (whatever it was), which was vested in Taylor under the assignment, being subsequently transferred to the Nicolson Pavement Company, and that company having laid a large extent of the patented pavement in San Francisco, after the expiration of the original patent, one Jenkins, who had obtained from the administrator of Nicolson whatever right was vested in him under the renewal and extension of 1868, sued the company.

The question, of course, was whether the assignment from Nicolson to Taylor of December 1st, 1864, vested any estate, right, title, or interest in the assignee, in or to the extended or renewed term, which was acquired by Nicolson's administrator under the act of Congress, subsequent to the date of the assignment.

The court below thought that it did not, and gave judgment against the company. From that judgment the company brought the case here.

Mr. T. T. Crittenden, for the plaintiff in error:

The Commissioner of Patents having been authorized by statute to grant extensions for seven years, the original letters-patent then became virtually a patent for twenty-one years. No one can in view of well-known decisions of this court deny that the inchoate right of the inventor to the exclusive privileges under an extension of letters-patent is the subject of a sale, and certainly the words of this assignment in the concluding part of it are applicable only to a design to convey both a present and future interest.

Mr. M. H. Carpenter (a brief of Mr. J. R. Sharpstein being filed), contra:

The recitals in the assignment show that the original patent had been issued for the term of fourteen years, and that before the expiration of the term there had been a reissue of the patent; that Taylor had agreed to purchase a certain interest in said invention, 'as secured by said letters-patent' (the letters-patent recited); that in consideration of the premises he assigned, sold, and set over to said Taylor his interest 'in the said invention and letters-patent,' the letters-patent thereinbefore mentioned. Thus far there is no allusion to any term or letters-patent other than the original term of fourteen years, and the letters-patent originally issued, and the reissued letters recited.

These form the entire subject-matter of the contract. There can be no doubt as to the intention of the parties, unless certain words in the habendum clause, contrary to the ordinary rules of construction, can be construed as extending the contract to a subject-matter not before embraced, or referred to, in the recitals or granting portions of the deed. As we have seen, the habendum clause is, 'the same to be held and enjoyed. . . to the full end of the term for which the said letters-patent are or may be granted.' The words 'may be granted' are the only ones in the whole instrument that can be thought to point to an extension that might subsequently be acquired. But they must be read in connection with, and in subordination to, the rest of the instrument, and this very clause refers to 'the term for which the said letters-patent,' &c. A single term is referred to, and the said letters-patent. The reference is in terms to the term and the letters-patent already mentioned. The phrase 'may be granted,' seems to be an expression loosely used, and without any definite meaning in the connection in which it is found, unless it refers to other reissues of patents covering the remainder of said term. There had already been one reissue, and the facts show that a second reissue was had for the remainder of the term after this assignment, doubtless to cover some defect. These reissues are authorized by the act of Congress, and often occur. In a certain sense, when the patents thus originally issued are surrendered and others issued in their place, the whole may be regarded as the same letters-patent. They cover the same term. The reissued patent covers no improvement or extension, but is intended to rectify some error, or remedy some defect, and accomplish the identical object intended to be accomplished by the letters originally issued. In this sense they are substantially the same letters-patent. In this view the words 'may be granted' may have some siguificance as used in this instrument, and they are satisfied by applying them to any further letters-patent that might be issued for the same term and to accomplish the same objects intended by those already issued. And in this instance there was a subsequent reissue for the remainder of the term, to which they might in fact apply. But upon a view of the whole instrument, to construe them as referring to a new term, and letters-patent not yet in esse, would be doing violence to the language.

Mr. Justice DAVIS delivered the opinion of the court.

title: Nicolson Pavement Company v. Jenkins


text: Talk:Nicolson Pavement Company v. Jenkins


text:
Nicolson Pavement Company v. Jenkins/Opinion of the Court

An assignment of an interest in an invention secured by letters-patent, is a contract, and like all other contracts is to be construed so as to carry out the intention of the parties to it. It is well settled that the title of an inventor to obtain an extension may be the subject of a contract of sale, and the inquiry is whether the instrument of sale employed in this case, did secure to the purchaser an interest not merely in the original letters-patent, but in any subsequent extension of them. It recites the invention and the agreement of Taylor to purchase the right to use it in the city of San Francisco, and then conveys to him all the title and interest which Nicolson had in the invention and letters-patent for and in the said city; to be enjoyed by Taylor and his legal representatives to the full end of the term for which the said letters-patent are, or may be granted. There is no artificial rule in construing a contract, and effect, if possible, is to be given to every part of it, in order to ascertain the meaning of the parties to it. Taking this whole deed together, it is quite clear that it was intended to secure to Taylor and his assigns the right to use the invention in San Francisco, as long as Nicolson and his representatives had the right to use it anywhere else. Manifestly something more was intended to be assigned than the interest then secured by letters-patent. The words 'to the full end of the term for which the said letters-patent are or may be granted' necessarily import an intention to convey both a present and a future interest, and it would be a narrow rule of construction to say that they were designed to apply to a reissue merely, when the invention itself by the very words of the assignment is transferred. It was easy to have restricted the right to use the invention to the end of the term of the original letters and reissues, but this was not done; and in view of the right of the inventor in certain contingencies to a renewal,-which must have been well known to both buyer and seller of this kind of property,-we are led to the conclusion that both parties contracted with reference to it. The case of The Railroad Company v. Trimble is not different in principle from this, although in that case the language used is somewhat broader.

JUDGMENT REVERSED, AND A VENIER DE NOVO AWARDED.


text: Talk:Nicolson Pavement Company v. Jenkins/Opinion of the Court


text:
United States v. Ballard (81 U.S. 457)

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

A statute of August 30th, 1852, requiring annual licenses for steamboats, after preliminary inspections, examinations, and certificates, enacts by the 31st section:

'That before issuing the annual license to any such steamer, the collector or other chief officer of the customs for the port or district, shall demand and receive from the owner or owners of the steamer, as a compensation for the inspections and examinations made for the year, the following sums, in addition to the fees for issuing enrolments and licenses now allowed by law, according to the tonnage of the vessel, to wit:

For each vessel of 1000 tons and over, $35 00

For each vessel of 500 tons and over, and less than 1000 tons, 30 00

'And each engineer and pilot, licensed as herein provided, shall pay:

For the first certificate granted by any inspector or inspectors, the sum of $5 00

And for each subsequent certificate 1 00

to such inspector or inspectors, to be accounted for and paid over to the collector or other chief officer of the customs; and the sums derived from all the sources above specified shall be quarterly accounted for and paid over to the United States in the same manner as other revenue.'

In February, 1857, the Treasury Department promulgated certain general regulations under the revenue laws, in which, after stating some other fees, the above-quoted enactments were set forth as part, thus:

'The following enumerated fees are still to be charged and collected at such ports, and accounted for and paid over to the United States by collectors in the same manner as other revenue:

For admeasuring every vessel in order to the enrolment or licensing and recording the same:

If of 5 tons and less than 20, $0 30

Of over 20 and not over 70, 1 00

Over 70 and not over 100, 1 50

For certificate of enrolment, 50

For indorsement on certificate of enrolment, 20

For license, and granting the same, including the bond:

If not over 20 tons, 25

Above 20 and not over 100, 50

Over 100 tons, 1 00

For indorsement on a license, 20

For permit to land goods, 20For licenses to steamers, as a compensation for the inspections and examinations made for the year under the steamboat law, approved August 30th, 1852, in addition to the fees above mentioned, for issuing enrolments and licenses to vessels:

For each vessel of 1000 tons and over, $35 00

For each of 500 and over, but less than 1000 tons, 30 00

For the first certificate granted by an inspector or inspectors to each engineer and pilot, 5 00

For each subsequent certificate, 1 00

But the regulations called the attention of collectors and other officers of customs to the amount and limit of fees in a great variety of other matters, the regulations occupying several pages.

On the 17th June, 1864, Congress enacted:

'That each of the several collectors of customs in the following districts on the said frontiers, to wit: Cuyahoga, &c., &c., shall receive an annual compensation of $1000, and in addition thereto the fees now collected under the general regulations of the Treasury Department of February, 1857, and a commission of 3 per centum on all moneys collected and accounted for by them respectively: Provided, That the aggregate compensation derived from salary, fees, and commissions, shall not in any case exceed the sum of $2500. . . . And whenever the aggregate of salary, fees, and commissions shall in any case exceed the said sum of $2500, after deducting the necessary expenses incident to the said office, for during the same period for which said compensation is allowed, the excess shall, in every such case, be paid into the Treasury of the United States. The fees and emoluments of all kinds to be accounted for as provided by the 12th section of the act of 7th of May, 1822.'

This 12th section of the act of 7th of May, 1822, enacts that collectors, &c., shall account, under oath, for all fees and emoluments of office, and in such manner as the Secretary of the Treasury shall prescribe.

These treasury regulations of February, 1857, and this act of 17th June, 1864, being in force, the United States brought suit on the official bond of one Ballard, collector at Cuyahoga, assigning as breach his non-payment to the government of moneys received according to law from the owners of steamboats, or compensation for inspection and examination, and of moneys received by him according to law for certificaties of engineers and pilots. The defendant pleaded nil debet, concluding to the country, and a special plea of confession and avoidance, founded on the above-quoted statute of June 17th, 1864, and asserting that the fees for which he was sued were fees collected under the said general regulations of the treasury, of February, 1857, and such as he had a lawful right to retain; the whole, with commissions of 3 p. c. on moneys collected and accounted for, amounting to but $2322.

Upon the first plea issue was joined; to the second, the plaintiff filed a general demurrer, and the defendant his joinder therein. The Circuit Court overruled the demurrer, and thereupon, without disposing of the issue to the country, rendered judgment for the defendant. Thereupon the government brought the judgment here; the general question in the case being whether, in view of the 2d section of the act of June 17th, 1864, the collectors of the customs mentioned in that act were entitled to retain for their own use moneys received by them from the owners of steamers, and from engineers and pilots, by virtue of the 31st section of the act of August 30th, 1852. A minor point of pleading (arising from the fact that the court below did not send the case to the jury on the issue joined on the first plea) being also raised.

Mr. B. H. Bristow, Solicitor-General, for the United States, plaintiff in error:

1. There is clearly kept up in the treasury regulations of 1857 the distinction between the moneys collected under the act of 1852, and other collections enumerated in the regulations. We do not maintain that the collector has retained more than the maximum compeusation allowed by the act of 1864, but only that the amount thus retained by him is made up partly from moneys which he was not entitled to appropriate to his own use. He does not pretend to have derived any right to such moneys from the treasury regulations, or from any prior statute, but rests his claim upon the act of 1864, and insists that under it he is entitled to appropriate to his own use certain moneys which by prior statute and the treasury regulations were specifically required to be paid into the treasury as other revenue, and were clearly appropriated to other uses. What is there in the language of the act of 1864 to indicate an intention on the part of Congress to repeal the provision of the act of 1852 in this respect? It cannot be argued that so much of the act of 1852 as appropriates the moneys in question to another use, and requires them to be paid into the treasury 'as other revenue,' is repealed otherwise than by implication. The act of 1852 is not referred to in the act of 1864, and there is nothing in the statute itself to indicate that the subject-matter of the former act was present in the mind of the legislature when the latter was adopted. Nor is the latter in any sense repugnant to the former. The act of 1852 relates exclusively to the payment, by owners of steamers, engineers, and pilots, of certain sums of money as compensation for the services of inspectors, and the only connection of collectors therewith is in the duty imposed upon them to receive the money and pay it into the treasury as other revenue. The act of 1864 relates exclusively to the compensation of collectors, and the chief purpose in view was to change the maximum compensation of collectors of the enumerated districts. Full effect can be given the latter without in any respect disturbing the former. The two may well subsist together, and in such case repeal by implication cannot be allowed.

2. Nil debet is not a sufficient plea to an action of debt on a bond setting out the condition and breach, and it may be conceded that the plaintiff below should have demurred to this plea. However, an issue having been framed on that plea the court ought not to have treated that issue as immaterial, and rendered judgment for the defendants on the whole case upon sustaining the demurrer to the last plea, but should have allowed the parties to go to the jury upon the issue joined on the first plea.

Mr. A. G. Riddle, contra, submitted that the case was a plain one every way, and he presented arguments which need not be here printed, as they were in substance adopted as true by the court.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Ballard (81 U.S. 457)


text: Talk:United States v. Ballard (81 U.S. 457)


text:
United States v. Ballard (81 U.S. 457)/Opinion of the Court

The question is whether the description of fees now collected under the general regulations of the Treasury Department of February, 1857, includes the sums collected under these regulations for licenses to steamers, and as compensation for the inspections and examinations made for the year under the Steamboat Act of August 30th, 1852, in addition to the fees for issuing enrolments and licenses.

These sums are collected as fees under the regulations, and are not distinguished from the collector's fees proper, except by the circumstance that they are described as a compensation for inspections and examinations. The provision, that these sums shall be quarterly accounted for and paid over to the United States, does not distinguish them from fees and emoluments to be accounted for under the act of the 17th of June, 1864, or under the regulations of the Treasury Department of February, 1857.

The language of the regulations is, that the fees are to be charged, and collected, and accounted for, and paid over to the United States by collectors, in the same manner as other revenue. This language obviously means that they are to be accounted for in all cases, and paid over, unless retained under authority of law. The act of June 17th, 1864, authorizes the collector to retain the fees and a commission of three per cent. on moneys collected and accounted for, paying over to the Treasury only the excess beyond two thousand five hundred dollars; and there is no distinction in the regulations between the fees for admeasurement, licenses, &c., and the fees for licenses as a compensation for inspections and examinations.

We think, therefore, that the collector was authorized to retain all descriptions of fees paid him not in excess of two thousand five hundred dollars. It follows that the demurrer was properly overruled; and, as the defendant did not think it proper to reply, but allowed judgment to be entered upon the plea, the other plea of nil debet became immaterial, and the judgment was properly entered for the defendant.

It is, therefore,

AFFIRMED.


text: Talk:United States v. Ballard (81 U.S. 457)/Opinion of the Court


text:
Black v. Curran

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

The statutes of Illinois relating to homesteads enact:

'SECTION 1. . . . There shall be exempt from levy and forced sale, under any process or order from any court in this State, for debts contracted, the lot of ground and buildings thereon, occupied as a residence, and owned by the debtor, being a householder and having a family, to the value of $1000. Such exemption shall continue after the death of such householder, for the benefit of the widow and family, some or one of them continuing to occupy such homestead, until the youngest child shall become 21 years of age, and until the death of such widow, and no release or waiver of such exemption shall be valid unless the same shall be in writing subscribed by such householder and his wife, if he have one, and acknowledged in same manner as conveyances of real estate are by law required to be acknowledged.

'SECTION 3. If in the opinion of the creditors or officer holding an execution against such householder, the premises claimed by him or her as exempt, are worth more than $1000, such officer shall summon six qualified jurors of his county, who shall appraise said premises, and if, in their opinion, the property may be divided without injury to the interest of the parties, they shall set off so much of said premises, including the dwelling-house, as in their opinion shall be worth $1000, and the residue of said premises may be advertised and sold by such officer.

'SECTION 4. In case the value of the premises shall in the opinion of the jury be more than $1000, and cannot be divided as provided for in this act, they shall make an appraisal of the value thereof, and deliver the same to the officer, who shall deliver a copy thereof to the execution debtor, with a notice thereto attached that unless the execution debtor shall pay to said officer the surplus over and above $1000, on the amount due on said execution, within 60 days thereafter that such premises will be sold.

'SECTION 5. In case such surplus, or the amount due on said execution, shall not be paid within the said 60 days, it shall be lawful for the officer to advertise and sell the said premises, and out of the proceeds of such sale to pay to such execution debtor the said sum of $1000, which shall be exempt from execution for one year thereafter, and apply the balance on such execution, provided that no sale shall be made unless a greater sum than $1000 shall be bid therefor, in which case the officer may return the execution for want of property.'

With this statute in force one Craddock, the head of a family, was from 1853 till 1863 the owner of a lot in Illinois which constituted his homestead; his house being built on one half; and the other half, exceeding in value $2000, being used for its necessary purposes; both halves alike, however, constituting, as was assumed by the court, the homestead of himself and family.

In 1858, one Spear obtained a judgment against Craddock, but although the homestead property was sufficient to pay his demand and set off to the debtor what he was entitled to under the law, Spear did not pursue any of the modes pointed out by the statute of obtaining satisfaction of his property, but caused the western half to be sold at sheriff's sale under his execution, and having obtained a sheriff's deed for this half conveyed it to one Curran.

Subsequent to this, that is to say, in 1863, Craddock and wife conveyed the whole lot, east and west halves alike, in fee simple by deed with full covenants releasing the home stead, and properly acknowledged, to certain persons who subsequently conveyed to one Black. In two weeks after Craddock and his wife thus conveyed the premises, Craddock with his family removed from them and ceased to occupy them afterwards.

In this state of things, A.D. 1866, Curran claiming title through the judicial sale to Spear brought suit against Black for the west half of the lot; Black defending himself under the title, if any, acquired under the deed from Craddock and wife to his vendors.

The court below, relying, as was said here by counsel, on McDonald v. Crandall and Coe v. Smith, decisions in the Supreme Court of Illinois, and considering that the sheriff could levy on and sell and convey a part of the homestead lot, while in occupancy of the judgment debtor, and that the deed would take effect if the debtor and his family abandoned the homestead, adjudged that the plaintiff was entitled to the property claimed by him, that is to say the western half of the lot, in fee simple, and gave judgment accordingly. That judgment was now here for review.

Mr. Lyman Trumbull (a brief of Messrs. Stuart, Edwards, and Brown being filed on the same side) for the plaintiff in error:

Assuming that the facts show the occupation of the entire lot as a homestead, does the plaintiff show any title to the premises? To recover, he must show a valid execution, a regular levy, and an authorized sale. Now, here none of the requisitions of the law were complied with. Assuming the lien to exist and the premises to exceed in value the sum of $1000, how is this lien to be enforced? The act provides in detail the manner, time, and circumstances under which levy and sale can be made. These provisions are mandatory, prerequisite to the right to sell. They are, by the decision of the Supreme Court, prohibitory of a sale in any other way.

But by the decisions of the Supreme Court of Illinois, which are the rule in this matter for the Federal court, a judgment and execution do not create a lien against the homestead of the judgment debtor, and the owner may sell or mortgage it free from the lien of the judgment. This is emphatically declared in Green v. Marks, a leading case on this matter, and the doctrine of that case has been affirmed by the Supreme Court of the State in a series of decisions. As a rule of property it has existed for ten years. Titles to many valuable tracts and lots of land have been acquired on the faith of this construction. The title of the grantors of plaintiff in error was so obtained in 1863. The judgment in this case unsettles these titles and prescribes a different rule. We submit that, both on principle and the authorities of every State having homestead laws, the doctrine asserted by the court below (that without complying with any of the terms of the homestead law, and in a mode not pointed out by the law, the sheriff can divide the homestead lot, levy on part, sell and convey it, while in the occupancy of the judgment debtor, and that the deed so made will convey title to take effect when the occupation by the debtor of the lot ceases) is in effect a judicial repeal of the law.

The authority to sell is derived confessedly but from the statute. What is it that is exempt from sale? Not some ideal homestead-right estate, leaving another imaginary reversionary interest which can be subjected to the debts of the occupant. The exemption from levy and forced sale, is of 'the lot of ground and buildings.' The thing out of which, about, and in which, all the different kinds of estate arise, cannot be levied on or sold except in the mode provided. If the lot is exempt from levy and sale every conceivable estate in and to said lot must also be exempt. It is no answer to say that the exemption is only to the value of $1000, for the reason that the provisions are by the statute made to apply only where, in the opinion of the creditor, the premises exceed in value $1000: then, and then only, can he demand through the sheriff a jury to ascertain the value and divisibility of the premises, and upon notice to the judgment debtor, after the expiration of 60 days, may he sell. By the proviso to the 5th section, no sale can be made unless more than $1000 shall be bid. The carefully defined provisions to protect the judgment debtor in his homestead right in a case where, in the opinion of the creditor, the value of the lot exceeds $1000, the court below has decided are not necessary in the only possible case in which they could have any application.

By making these provisions in all cases essential no one can be injured. If the premises are only worth $1000, then nothing can be done. If the creditor at any time conceives them to be worth more he can instantly secure his claim by proceeding in accordance with the statute. If he chooses to remain inactive until the judgment debtor conveys, the loss is the result of his negligence.

As to the cases of McDonald v. Crandall and Coe v. Smith, relied on by the court below, it is enough to remark that in the first case the court expressly refer with approval to Green v. Marks, cited and relied on supra by us, and that the opinion in the latter simply refers to the former case as controlling it.

These were cases of voluntary conveyances to grantees of the person claiming the homestead right. The case now before the court involves a sale in invitum. This distinction would of itself be sufficient to demonstrate the inapplicability of these decisions.

But the court in these cases did by no means decide that a deed failing to release the homestead was, or could be, by and of itself, a valid conveyance of the title by virtue of which the grantee might maintain ejectment against the grantor, or his grantees occupying the premises under conveyances from him. They decide only that the irregular deed and the surrender of the premises to the grantee of that deed constituted an abandonment of the homestead to that grantee, so as to estop the claim of the grantor and all claiming through him. It was the concurrence of the voluntary deed and voluntary surrender that operated the destruction of the right.

In the case now before the court the possession was surrendered to the grantees of the deed under which plaintiff in error claims, and he was in possession thereunder when this suit was commenced.

[The learned counsel then went into an examination of decisions in New York, Iowa, Wisconsin, New Hampshire, and Minnesota, to show that the law as conceived by them was the law in every State where exemptions similar to those in Illinois existed.]

Mr. Jackson Grimshaw, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Black v. Curran


text: Talk:Black v. Curran

title: Talk:Black v. Curran


text:
Black v. Curran/Opinion of the Court

The rights of the parties to this suit depend upon the construction to be given the homestead laws of Illinois. These laws exempt from forced sale on execution the lot of ground and the buildings thereon occupied as a residence and owned by the debtor, being a householder and having a family, to the value of one thousand dollars. And the owner of the homestead, if a married man, is not at liberty to alienate it except with the consent of the wife, and there must be an express release and waiver of the exemption on the part of both to render the conveyance operative. A mode is provided for dividing the property, if divisible, in case its value exceeds one thousand dollars, and of selling it, if indivisible, and applying the proceeds in a particular manner. As Spear did not pursue these modes of obtaining satisfaction of his judgment, although the homestead property was sufficient to pay his demand and set off to the debtor what he was entitled to under the law, the inquiry arises whether the proceedings which he did take operated to pass the title after the homestead was abandoned.

It is conceded that this inquiry must be answered if possible by the decisions of the Supreme Court of Illinois on the subject, for these decisions constitution a rule of property by which we are to be governed. Although the exact point in dispute has not been adjudicated by that court, yet certain general principles have been announced which in their application to this case we think relieve it of difficulty. The embarrassment encountered in the administration of this law has been chiefly owing to the fact that the exemption was confined to real estate of a limited value. If the exemption had extended to the entire lot of ground occupied as a homestead without regard to its value, it is easy to see that many troublesome questions which have arisen would have been avoided.

In order to reach a proper conclusion in this case, it is necessary to understand what is the nature of the homestead right. It cannot in an absolute sense be said to be an estate in the land; the law creates none and leaves the fee as it was before, but in substance declares that the right of occupancy shall not be disturbed while the homestead character exists. While this continues, the judgment creditor cannot lay his hands on the property, nor the husband sell it without the consent of his wife, and not then without an express release on the part of both, of the benefits of the law. The purpose of the legislature was to secure a homestead for the family, and the disposition of the property either by judicial sale or voluntary conveyance, was left unaffected except so far as was necessary to accomplish this object. As long as the property retained its peculiar character, it was within the protection of the law, but the exemption from sale under execution or by deed (except with homestead waiver) could be lost by abandonment or surrender; that is to say, by acts in pais.

The Supreme Court of Illinois have recognized and applied these principles in several recent cases, where the effects of voluntary conveyances by the owner of the homestead were the subject of consideration.

In McDonald v. Crandall, it was held that where a conveyance is made not waiving the homestead, it passed the fee, but its operation was suspended until the grantor abandoned the premises or surrendered possession, and that the homestead when occupied by the debtor as such, is not subject to the lien of a judgment. But the case decides that where the homestead exceeds one thousand dollars in value, a judgment becomes a lien and may be enforced against the overplus, and that the Homestead Act has not created a new estate, but simply an exemption.

In Coe v. Smith, the facts of the case were these: The owner having a homestead right in the lot, made in 1858 a mortgage without waiver of the homestead, and then in 1860 made another mortgage with waiver; afterwards, in 1861, he abandoned the premises. The court held that the first mortgage was the prior lien.

In Hewitt v. Templeton, it was decided that upon the abandonment of the homestead by the grantor, the grantee in a deed in which the homestead right has not been waived is entitled to immediate possession, the homestead right being annihilated. The court in commenting on the decision in McDonald v. Crandall, which they say governs this case, uses this language: 'We there held, although a judgment was no lien upon a homestead, where the premises were worth less than $1000, and a lien upon the surplus where they were worth more than that sum, yet, where the owner conveys the same by an abaolute deed or mortgage legally executed, the fee in the premises conveyed, no matter what their value, passes to the grantee, subject only to the right of occupancy on the part of the grantor in case the homestead has not been relinquished, and when such occupancy terminates, the homestead right is annihilated, it not being an estate in the premises which can be transferred as against a former conveyance that has passed the fee.'

If a conveyance by the occupier of the homestead without the release of his right as required by the law has the effect to pass the title, regardless of the value of the premises conveyed, and can be enforced so soon as the occupation of the homestead ceases, it is difficult to see why the conveyance by the officer of the law, instead of the debtor, should not have the same effect.

And if, as between two voluntary grantees, the first takes the land discharged of the homestead after its abandonment, although the second conveyance contains a release of the homestead and the first does not, why should not the same rule obtain when the property was sold on judicial process, before the debtor conveyed it? The junior grantee takes nothing, because there was no estate to pass, it having been transferred by the first conveyance. On the same theory, there was no estate to convey after the sheriff had sold the land. The only difference between a conveyance made by the judgment debtor who has a homestead, and by the sheriff under a sale or execution against his land is, one is the act of the party, the other of the law-one a voluntary, the other an involuntary conveyance. It is certain that the owner of a tract of land of more than $1000 in value, on which there is a judgment, cannot sell it freed from the judgment, and although the homestead as such cannot be sold under execution, nor is a judgment a lien on the homestead as such, but as the land can be sold by the owner subject to the homestead, so a judgment is a lien on the land subject to the homestead, and the land or fee can be sold under execution subject to the homestead, and the purchaser, as in the case of a deed by the debtor without the waiver, has the absolute title when the homestead right ceases.

If these views of the law on this subject are correct, and we think they are fairly deducible from the decisions in Illinois, they are conclusive upon the rights of the parties to this suit.

On the hypothesis that there waw no judgment against Craddock, it is clear that if he had conveyed the lot or any part of it in 1858 (the date of the judgment against him), without the waiver of the homestead, and then in October, 1863, conveyed it with the waiver (as he did), and then left the premises (as he did), the deed of 1858 would bind the land.

It follows equally, that the deed of 1863 with the clause of the waiver, did not convey the absolute title to the west half of the lot, because there was a deed made by the law under a judgment of 1858, and which operated (just as a deed made by Craddock himself would have operated) upon the west half as soon as it ceased to be a homestead-that is by abandonment. And this is true while conceding that on neither hypothesis, that is deed without the waiver and sale under the judgment, could Craddock's homestead right be disturbed-his occupation of the lot.

JUDGMENT AFFIRMED.

title: Black v. Curran/Opinion of the Court


text: Talk:Black v. Curran/Opinion of the Court


text:
Dolton v. Cain

ERROR to the Circuit Court for the Southern District of Illinois; the case being this:

Certain statutes of limitation in Illinois, declare in substance that whoever has resided on a tract of land for a term of seven successive years, prior to the commencement of an action of ejectment, 'having a connected title in law or equity deducible of record from the State or the United States,' can plead the possession in bar of suit to dispossess him.

These provisions of limitation being in force, Dolton sued Cain, A.D. 1865, in ejectment, to recover a piece of land in the State just named.

The plaintiff showed as title,

1st. A patent, A.D. 1818, from the United States to one Stephenson for the land.

2d. A deed, A.D. 1820, from Stephenson to one McGuire.

3d. A deed, A.D. 1823, from McGuire 'to Auguste Thiriat, in trust for Ren e Marie Ferdinand Jacquemart' (a resident of France), the habendum clause being thus:

'To have and to hold the said premises with the appurtenances unto the said party of the second part, and his heirs and assigns forever.'

4th. The death of Thiriat in 1845, and of Jacquemart in 1848; no more particular dates being shown.

5th. Conveyance, A.D. 1864, by the heirs of both Thiriat and Jacquemart, to Dolton (the plaintiff).

Title in Jacquemart having been, as above stated, shown by the plaintiff, the defendant relied on:

1st. August 10th, 1847, a power of attorney, 'each one for themselves,' from Ren e Marie Ferdinand Jacquemart and wife, to F. R. Tillon and W. L. Cutting, with power of substitution, authorizing them to sell any lands in Illinois 'which Mr. and Madame Jacquemart at present own; and in which the said constituents have interests, of any kind soever to be protected,' and 'to sign the contracts of sale in the respective names of the constituents.'

2d. September 20th, 1847. A substitution by Tillon and Cutting of one Cockle, to their power to sell, &c.

3d. Proof that on the 29th July, 1848, Cockle as attorney for Jacquemart and wife, sold the land to Cain, the defendant, for $300; of which $100 was to be paid down, and the residue secured by three notes, one for $68, at one year, and two for $66 at two and three years respectively; that the $100 was paid and the three notes given; that contemporaneous with the sale, he, Cockle, professing to act as attorney of Jean Ferdinand Jacquemart (the name of Jean instead of Ren e Marie, having as Cockle himself testified, been signed 'by inadvertence and mistake,' and 'the intention having been to execute the instrument in Jacquemart's true name,') executed and gave to Cain a bond for $600, reciting the sale and the terms of it, and conditioned that if Cain paid the notes on the days specified for their payment, and Jacquemart should upon such full payment of the purchase-money execute and deliver to Cain a warranty deed with the usual covenants, then the bond should be void; that the sale was reported within a month to Tillon and Cutting, who approved it; that the first and second notes were paid as they came due, and with the $100 cash were devoted by Cockle to the paying of taxes on other lands of Jacquemart; that Cain offered payment of the third note at its maturity, but that Cockle refused to receive it, replying to Cain's offer to pay it, that it was rumored that Jacquemart was dead; that Cain had always been ready and willing to pay the note which from the cause mentioned was remaining unpaid, but that he did not know who was entitled to receive the money.

4th. Proof that the defendant took possession of the land very soon after his purchase, and had occupied it continuously by himself or his tenants from that time till the time of the suit brought (A.D. 1865), and for seventeen years had paid taxes on it.

On the facts thus proved, the court below decided that the possession of Cain was protected by the limitation laws of Illinois, already in substance stated, and gave judgment accordingly. From this judgment the plaintiff sued out the present writ of error. The sole question in the case was, whether the defendant, Cain, was within the protection of these laws.

Mr. B. C. Cook, for the plaintiff in error:

Cain had no connected title deducible of record, either in law or equity, to the premises in question. The title must be connected; it must be deducible of record. Cain in fact has no title in equity at all; though he may have had interest in equity. No title in equity could have arisen until he had paid all his notes, for not till then could he have come into chancery and demanded a conveyance. He held, in short, but that inchoate interest which might or might not ripen into an equitable title. Reference by the court to decisions of the Supreme Court of Illinois, will show that no other view can be taken consistently with them.

Further. All the claim that Jacquemart had to the land arose from McGuire's deed to Thiriat. That deed conveys to Thiriat, in trust for Jacquemart indeed, but with a Habendum whose effect was obviously to give the estate to Thiriat alone.

Then these lands, if Jacquemart's at all, were Jacquemart's alone. His wife did not have any ownership in them. The bond was executed by him alone if by anybody. But the power of attorney does not authorize the sale of the lands of either Mr. or Madame Jacquemart alone, but only the lands owned by them jointly.

Finally, Ren e Marie is quite a different name from Jean.

Mr. Jackson Grimshaw, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Dolton v. Cain


text: Talk:Dolton v. Cain

title: Talk:Dolton v. Cain


text:
Dolton v. Cain/Opinion of the Court

The limitation laws of Illinois relied on by the defendant, in substance, declare that whoever has resided on a tract of land for a period of seven successive years prior to the commencement of an action of ejectment, having a connected title in law or equity deducible of record from the State or the United States, can plead the possession in bar of the suit.

It is objected that the entire title of the defendant is not evidenced by acts of record, but this is not necessary. If the source or foundation of the title is of record it is available to every person claiming a legal or equitable interest under it who can connect himself with it by such evidence as applies to the nature of the right set up.

Is the right set up by Cain, then, within the purview of the statute?

It is conceded to be, if the bond was executed under a valid power of attorney, coupled with full payment of the purchase-money, and the obligor had the legal title to the land. This concession was necessary, because it is too plain for controversy that a union of these elements would constitute a complete equitable title, which a court of chancery, on the proper application, would perfect into a legal title. But there are other principles by which an equitable title can be tested, and, in their application to this case, relieve it of all difficulty. If a party has done all that could reasonably be expected of him to perform his part of the agreement, it will be considered, in equity, as having been done. Cain is within this condition. He purchased the land from Cockle, paid him all he agreed to pay, except the sum of $66, and this he was ready and willing to pay, but Cockle would not receive it, on the plea that it was rumored his principal was dead. Was not this offer equivalent to payment? What more, under the circumstances of this case, would a court of equity require? It would be a harsh rule to say that the purchaser should lose his land because he did not institute inquiry, in France, to ascertain whether the rumor of Jacquemart's death was well founded or not. There was no revocation of the power, and Cockle was the property person to receive the money, unless Jacquemart were dead; and there is nothing in the record to show that Cain ever received any information on the subject, except what was contained in the reply of Cockle when he offered to pay him the money. Naturally a man in the predicament of Cain would rest in security, until advised by Cockle that he could safely pay the money to him, or until some one having authority called upon him for payment. This was never done; and, after sixteen years' residence on the land, he is called upon to surrender it because he did not employ unusual means to ascertain the proper parties to whom the small balance due on the land should be paid. If there were no limitation law in Illinois applicable to this this case, the action of ejectment would, on proper application, have been enjoined until Cain could, through a court of equity, have perfected his title so as to make it available as a legal defence in a court of law. If, then, Cain had such a title as a court of equity would recognize and convert, by its decree, into a legal title, it must be considered a title in equity within the meaning of the statute. Indeed, it is difficult to conceive what the law does mean by a title in equity if this be not one. It must be something less than a legal title, else these words in the statute can have no effect. The law was designed to protect both kinds of title alike, and, unless equal influence is extended to both, there is a practical repeal of a portion of the statute. In no proper sense can it be said that Cain broke his agreement. It is true he did not formally tender the money to Cockle, but this would have been a useless act, as Cockle told him, on his application to pay, that he could not receive the money. Besides, he had good right to suppose, from what had previously occurred, that the offer to pay Cockle was as valid as the offer to pay Jacquemart.

Why, then, has not Cain, having shown a record foundation, brought himself within the scope of the statute?

It is urged, as an additional reason against this, that Jacquemart did not own the legal title, because one of the mesne conveyances made in 1823 was to Thiriat in trust for Jacquemart. This is true, but Thiriat died in 1845, and Jacquemart, the beneficial owner of the land, assumed to have the right to sell it in July, 1848, when he executed his letter of attorney to Tillon and Cutting, with power of substitution. Nothing is heard from the heirs of Thiriat for a period of nineteen years from the death of their ancestor, when, in 1864, they convey, as do also the heirs of Jacquemart, the tract of land in controversy to the plaintiff. After such a lapse of time, in the absence of any proof on the subject, it is difficult to resist the conclusion, that some undue influence must have been used to procure these conveyances; but, be this as it may, the title of Cain is not less an equitable one on account of them, and, if so, the statute will not allow his possession, rightfully obtained and continued the requisite length of time, to be disturbed. Without discussing the effect of the deed of Thiriat's heirs, in its application to this case, it is enough to say that a court of equity, looking through forms to the substance of things, would find a way to protect Cain's purchase.

It is urged, as an additional reason why this defence cannot prevail, that the bond is in the name of Jacquemart alone, while the power was to convey the joint property of husband and wife. There would be some force in this position, if the original deed to Thiriat had been in trust for the wife as well as the husband; but, as this was not the case, the joinder of the wife could only have been intended to alienate any supposed right of dower in the event that she survived her husband. She had no present title to the land, either legal or equitable; and, although Cockle was empowered to use her name, as well as her husband's, in any instrument of sale he might execute, the failure to do so cannot, in any event, operate to invalidate the bond for a deed which he gave to Cain.

It is hardly necessary to notice the objection, that Jacquemart's name is incorrectly given in the contract of sale. Cockle testifies that this was a mistake, and it is the business of a court of equity to see that Cain is not harmed by it.

On the whole case we are of the opinion that the defendant is within the protection of the limitation laws of Illinois, which he invoked for his defence, and which he had a right to do for that purpose, although the title used to accomplish this object could not be employed by a plaintiff in an action of ejectment, who can only recover when he has the paramount legal title.

In conclusion, it is proper to state that we have examined the decisions of the Supreme Court of Illinois, to which we have been referred as affecting the question at issue, and do not find anything decided which militates against the views we have presented.

JUDGMENT AFFIRMED.

title: Dolton v. Cain/Opinion of the Court


text: Talk:Dolton v. Cain/Opinion of the Court


text:
Cross v. United States (81 U.S. 479)

APPEAL from the Court of Claims; the case being this:

Daniel Saffarans, in 1851, according to the forms of law, leased to the United States for a term of ten years, at a certain monthly rent, a warehouse in San Francisco. Alexander Cross advanced the money to complete the building, and was compelled for his own protection to purchase the property and the contract of lease. The lease was assigned to him and the warehouse occupied by the government for a term of three years, when the Secretary of the Treasury of that day, availing himself of an apparent legal informality in the assignment of the lease, against the written protest of Cross, rescinded the contract.

On the 15th of November, 1856, Cross petitioned the Court of Colaims for relief, but failed to obtain it on the ground that the assignment of the lease was defective and insufficient to vest in him a legal title to the accruing rents. This adverse decision, in conformity with the law at that time, was reported to Congress, and while the proceeding was pending there, Congress, on the 2d July, 1864, passed the following joint resolution for his relief:

'Whereas Alexander Cross heretofore filed his petition in the Court of Claims of the United States, praying relief on account of certain rents alleged to be due from the United States to him as assignee of one Daniel Saffarans, by virtue of a certain alleged contract of lease between the said Saffarans (who is now deceased) and the United States; and whereas the said Court of Claims, on the 24th of January, 1859, rendered a decision adverse to the prayer of the said petition, on the sole ground of an alleged technical defect in the assignment of said lease from the said Saffarans to the said petitioner: Now, therefore,

'Be it resolved, &c., That the said cause be remanded to said Court of Claims for a further hearing, upon the testimony heretofore filed therein, and such further testimony as either party may take; and if, upon the further hearing of said cause, it shall appear that the said petitioner is the equitable owner of said lease, and in justice and equity entitled to the rents (if any) due thereon from the United States, the said court shall be authorized to render judgment therefor in his favor, notwithstanding any technical defect in the assignment of said lease: Provided that no money shall be paid out of the treasury upon any judgment which may be rendered in favor of the petitioner in said cause, until he shall have filed with the Secretary of the Treasury a bond, with ample security, in such sum as will fully indemnify the United States against any demand which may be set up and established by or on behalf of the heirs or representatives of the said Daniel Saffarans, deceased, under or by virtue of said contract or lease.'

Cross, accordingly, after the passage of the resolution, by a supplemental petition, asked the Court of Claims to rehear the cause and give him judgment for the instalments of rent claimed in his original petition, embracing the terms of time between the 14th day of August, 1853, and the 14th day of November, 1856. This was done. Two years afterwards he brought another action, to recover the instalments of rent (amounting to $69,515) which were not included in the first suit.

The court below held that this second suit could not be maintained because the power and authority conferred upon it by the joint resolution had been exhausted when it reheard the cause and rendered judgment. From that judgment it was that the present appeal was taken.

The only question in this case related, of course, to the proper construction of the already-quoted joint resolution of Congress of July 2d, 1864.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, in support of the ruling below:

The joint resolution only applied to the case of the first petition of the appellant in the Court of Claims. This is shown by the preamble: Whereas, Alexander Cross, heretofore filed his petition in the Court of Claims of the United States, praying relief on account of certain rents alleged to be due from the United States to him;' and Whereas, as the said Court of Claims rendered its decision adverse to the prayer of said petitioner; and therefore, Be it resolved, &c., That the said cause be remanded to said Court of Claims for a further hearing, upon the testimony heretofore filed therein, and such further testimony as either party may take and file pursuant to the rules of said court.'

This language would seem to refer to the cause of action covered by the first petition, and to none other; and as the Court of Claims could not give relief except so far as it was specially authorized by this act of Congress, its powers must be strictly confined within the language and limits of that act.

But if the resolution is broad enough to cover any claim which the appellant had against the United States under the lease from Saffarans, then the former judgment is a bar to any future recovery by him for the same cause of action. The resolution certainly did not contemplate more than one action, and when the appellant filed his supplemental petition, the rents for which he now sues were due and might have been included by him in that suit. As he did not elect to do so, but brought a suit for a portion only of his claim, he has lost by his laches any right which he might have had under the resolution to recover the amount of the rents which he had negligently omitted to include in his petition.

J. J. Combs, contra, for the claimant.

Mr. Justice DAVIS delivered the opinion of the court.

title: Cross v. United States (81 U.S. 479)


text: Talk:Cross v. United States (81 U.S. 479)


text:
Cross v. United States (81 U.S. 479)/Opinion of the Court

To uphold the ruling made by the Court of Claims would be, we think, to take a narrow view of the legislative intention in this case and to give substantial effect to the technical defences which have distinguished this litigation. There is no defence now on the merits, nor was there when the case went to Congress. It went there, not because the United States was not bound by the covenants of the lease, but for the reason that, in the opinion of the Court of Claims, Cross had not the legal right to enforce the obligation. Saffarans had undertaken to assign the lease to Cross, and no question was made as to his ownership until the Secretary of the Treasury attempted to rescind the contract. Then it was discovered that the assignment lacked legal formality, and the government availed itself of this defence, and this only, in the Court of Claims to defeat the action. In this state of case Congress was called upon to act.

The technical defect in the mode of assignment was the only obstacle encountered by Cross in the prosecution of his claim, yet while it remained it was effectual to prevent a recovery. To remove it and allow a trial on the merits required the assent of Congress, and this was given. That the waiver by Congress of the right of the United States to make this defence was not limited to any particular suit, but was extended to the entire controversy respecting the lease, seems clear enough from the language of the resolution itself. The Court of Claims was told if it found Cross to be the equitable owner of the lease, and in justice and equity entitled to the rents (if any) due thereon from the United States, to render judgment in his favor, notwithstanding any technical defect in the assignment of the lease. And to leave no room for doubt on the subject the court was directed further, to take bond from Cross to indemnify the government 'against any demand which may be set up and established by or on behalf of the heirs or representatives of Saffarans under or by virtue of said contract or lease.' Why the extent of this requirement if the waiver was only applicable to the rents in controversy in the proceeding then pending before Congress? We cannot suppose, without an express declaration to that effect, that Congress intended to legislate in a manner that would enable a creditor of the government to obtain only a part of his claim when the whole of it was deemed by the court that tried the case to be meritorious.

It is true the lease was at an end when Congress acted and the court reheard the cause, and Cross could by proper amendment of his petition have embraced also that portion of his demand for which he now sues; and that would have been the proper course for him to have pursued, but he was not compelled to take it. In covenant for non-payment of rent, payable at different times, a new action lies as often as the respective sums become due and payable. As his suit is for instalments of rent not due when the first suit was instituted, and as they were not included in it in any stage of the proceeding, the plea of former recovery has no application.

On the finding of facts by the court below judgment should have been rendered for the claimant for $69,515.

It is, therefore, ordered that the judgment be reversed and the cause remanded to the Court of Claims, with directions to enter

JUDGMENT FOR THAT SUM.


text: Talk:Cross v. United States (81 U.S. 479)/Opinion of the Court


text:
Dirst v. Morris

ERROR to the Circuit Court for the Northern District of Illinois; the case being this:

Russell being the owner of a large number of lots of land in different counties in Illinois, conveyed one in May, 1837, to Josiah Breese. This deed was not recorded until the year 1864.

In December, 1837, Russell being a debtor to the United States mortgaged the same lot with all the several others that he owned to the then Solicitor of the Treasury, to secure this debt, and the mortgage was promptly put on record. There was no evidence that the existence of the deed to Breese was known to the agents of the government at the time when this mortgage was taken by it.

On the 1st of September, 1841, the United States filed a bill to foreclose the mortgage. The bill was in ordinary form against Russell, but it contained a clause alleging that Francis Peyton, Gordon Hubbard, Josiah Breese, H. S. Fuller, Augustus Garrett, Frederick Fraylor, and several others named, 'commissioners of school lands, have or pretend to have some interest or claim upon the above described premises as judgment creditors or otherwise;' and process was accordingly prayed against them.

A summons with subpoena issued accordingly, the record saying -

'Which said subpoena went into the hands of the marshal to be executed, and was returned by him into the said clerk's office, executed upon all of the defendants by delivering to each of them true copies thereof.'

The marshal's return, however, on the summons itself, which it was shown by the fee-bill on file in the case was the only summons issued, while making return that certain of the defendants named had been served, stated that Breese and the rest had not been found in his district.

An order taking the bill pro confesso against the defendants was subsequently entered, reciting 'that the said defendants have been duly served with process and have failed to appear.'

Final decree having been entered, and sale made, the lands were bought in by the United States, whose title by means of a deed from the Solicitor of the Treasury, in whose name the title had been made, became subsequently vested in W. W. Corcoran, who conveyed to W. B. Morris.

The title in Breese under the deed of 1837 of Russell to him became, on the other hand, vested in one Dirst, and he in 1864 having taken possession of the land, which till then had been unoccupied, Morris brought ejectment against him.

The case was tried by the court, under the act of Congress of March 2d, 1865, authorizing the Circuit Courts on written stipulation of the parties to try issues of fact without the intervention of a jury, and enacting that 'the findings of the court upon the facts shall have the same effect as the verdict of a jury.'

On this trial before the court the plaintiff, having first put in the mortgage to the government, offered in evidence the record of the foreclosure suit, to which the defendant objected, on the ground (amongst others) that Breese had not been served with process in the cause. To prove this he referred to the record itself, and also proved by parol that Breese was not in Chicago in 1841, but was in New York; and further produced the original subpoenas and files in the cause. As already stated, the papers showed that Breese had been made a party to the bill, and that his name had been included in the subpoena; and the record recited that the subpoena was returned by the marshal into the clerk's office executed upon all the defendants; but the return of the subpoena did not show any service on Breese. Nevertheless the court admitted the record in evidence, and the defendant excepted.

The plaintiff also offered in evidence the deed from the Solicitor of the Treasury (representing the government) to Corcoran, the plaintiff's grantor. The defendant objected to it on the ground that it did not appear thus far in the proceedings, that the United States had any title to the premises in controversy, except as mortgagee, and that as the deed did not purport to assign or convey to the grantee any part of the mortgage debt, and, as the defendant maintained that it did not appear that the mortgage had been foreclosed as against Breese, the owner of the equity of redemption,-therefore, that the said deed did not pass to the grantee any legal title or estate to the premises. The court, however, received the deed, and the defendant excepted.

The defendant, on his part, produced Breese's deed and mesne conveyances to himself, and evidence to show that under this title, in 1864, he had taken possession of the property, which, till then, was unoccupied. He now insisted that his right was paramount to that of the plaintiff. But the court decided that the plaintiff was entitled to recover, notwithstanding the possession taken by the defendant, and found the issues generally in the plaintiff's favor. This ruling of the court at the close of the trial was alleged by the defendant as an additional error.

Mr. S. W. Fuller, for the plaintiffs in error:

1. Breese being the owner and holder of the equity of redemption in the mortgaged premises, no effectual foreclosure of the mortgage could be made without his being made a party defendant to the foreclosure suit, brought into court, and subjected to its jurisdiction. This is familiar law.

2. Taking the record in the foreclosure suit and the parol testimony, it affirmatively appears that Breese was not served with process or otherwise brought into court in that suit. It is not pretended that he entered an appearance.

Of course, every presumption should be indulged to uphold the validity of judicial proceedings; and they will be upheld where the records are consistent with themselves, and where the recitals or presumptions contained in one part of the record are not rebutted by positive proof in other parts. But they are so rebutted here. The summons shows explicitly that it was not served upon Breese; the whole record, taken together, shows that but one summons was issued. There is no pretence of his appearance having been entered. The proof outside the record shows that he could not have been served. If the summons was not preserved in the record with the return of the officer, showing who were and who were not served, then the recital of service in the decree would be prim a facie evidence that all the defendants were served, as was held by this court in Comstock v. Crawford, and in Secrist v. Green. But this is not either of those cases. It is the case of Sibley v. Waffle, where, notwithstanding the recital that due service had been made upon all the defendants, it appeared, by reference to the notice of publication, that the notice had not been published for the length of time required by law, and so the Court of Appeals decided that no jurisdiction was acquired, and that the recital did not aid the matter. The doctrine of that case is declared in many other cases. Its correctness is obvious.

Most of the cases on the whole subject are collected and classified, with excellent discrimination, in the seventh edition of Smith's Leading Cases. We select and cite only those which involve the precise point raised upon this record, that is to say, that while in the absence of the summons and return from a record, a recital in the judgment or decree, of service of process upon the parties, or that they entered their appearance, is sufficient prim a facie evidence of that fact, yet when the original summons and return are contained in the record, the latter shall prevail, and the recitals go for nothing.

Setting out with this as a settled and obvious principle, the recital in the order of court taking the bill pro confesso, that the defendants had been 'duly served,' must be construed as including only the defendants who appeared by the officer's return to have been served; the only construction consistent with law, the record, and justice.

3. The deed from the United States to Corcoran was improperly admitted for the reasons assigned at the trial.

The rule on the subject is probably not uniform in the State courts, but it is believed to be settled in this court and for all the Federal circuits by Hutchins v. King. It is there said:

'The mortgagee cannot by conveyance transfer any interest in the premises without a transfer of the debt secured; his interest is not subject to attachment or seizure on execution; he cannot remove the buildings on the premises, nor the fixtures attached; nor can he subject the premises to any uses but such as may furnish the means for the payment of the debt secured, without impairing the value of the estate.'

4. As to the equities, though Corcoran paid his money to the United States for the deed which he received, and also paid the taxes on the land in controversy until 1864, yet, on the other hand, Dirst paid his money and took possession of the premises in 1864 (the same being then and having always been vacant and unoccupied), under the chain of title derived from Breese, the first grantee of Russell, believing that Breese and his grantees had the better title. His title was a paramount title.

On the whole case the judgment should have been for the defendant. How the court decided that the plaintiff was entitled to recover, notwithstanding the possession taken by the defendant, and found the issues generally in the plaintiff's favor, it is difficult for us on the evidence to see. This court, we submit, must reverse that judgment.

Messrs. Carlisle and McPherson (a brief of Mr. Thomas Dent being filed on the same side) contra:

Mr. Justice BRADLEY delivered the opinion of the court.

title: Dirst v. Morris


text: Talk:Dirst v. Morris

title: Talk:Dirst v. Morris