text:
Hurt v. Hollingsworth/Opinion of the Court

This suit was brought by the plaintiff in a district court of Texas to quiet his title to certain real property situated in Galveston, in that State. On application of the defendant it was removed to the Circuit Court of the United States.

The petition, which is the first pleading in a suit according to the practice which obtains in Texas, sets forth that the plaintiff is the owner of the premises; that he purchased them of one Molsberger and wife, in June, 1874; that those parties acquired them in December, 1865, and had subsequently, until the sale to the plaintiff, claimed and held them as a homestead; that in April, 1867, certain parties designated as Marsh, Denman, & Co. recovered judgment against Molsberger in the County Court of Galveston on a debt contracted in 1866, while the premises constituted the homestead of himself and family; and in October, 1873, under an execution issued thereon, the premises were sold by the sheriff of the county for the sum of $30 to the defendant, Hollingsworth, owe of the members of that firm, and to him the sheriff executed a deed of the premises, which has been recorded in the county.

The petition avers that this deed is a cloud upon the title of the plaintiff, and prays that the cloud may be removed and his title quieted. The defendant filed in the Circuit Court an answer to this petition, in which he admits that the plaintiff was in possession of the premises, and had obtained a deed of them from Molsberger and wife, who had purchased them in 1865, but denies that they constituted a homestead of Molsberger and family continuously from that time until the alleged sale to the plaintiff, or that they were such homestead when the sale was made by the sheriff to him.

The answer then avers that the defendant became the owner of the premises by his purchase; that the plaintiff wrongfully withholds the possession from him, and the rents and profits, which are of the value of $75 a month. He therefore prays that the title may be declared to be in him, and that he may have judgment for the possession of the premises and the value of the rents.

These pleadings were subsequently amended so as to show the value of the property and the amount of its rents, and in some other particulars not material to the question now presented.

The case was considered by counsel and treated by the court as an action at law, and by stipulation made at the December Term of 1875 the parties waived a jury trial and submitted 'the matters therein, as well of facts as of law, to the court.' The evidence was then heard; and at a subsequent term the court gave judgment that the plaintiff take nothing by his action, and that the defendant recover the title and possession of the property, and also the sum of $420, as damages for its use and occupation, and have a writ of possession.

This judgment was subsequently vacated and a rehearing granted, when a motion was made by the plaintiff to transfer the cause, it being one seeking equitable relief, from the law docket of the court, upon the ground that it had been improvidently placed there by the defendant, to the chancery docket, to be there proceeded with according to the rules and practice of the Circuit Court sitting in chancery; and also a motion to take from the files of the court so much of the answer as purported to be 'a cross-suit, reconvention suit, or cross-bill,' because the court, sitting as a law court, had no jurisdiction to grant in that suit the relief prayed by the defendant. These motions were accompanied with a petition for leave to amend the bill of complaint. But the court considering that the case was on its law docket, and had been submitted for its judgment, refused to sustain the motions. In disposing of them it observed that it was a court both of law and equity, and had cognizance of both kinds of cases; that though the cause was an equity cause, the court had cognizance of it, and the question presented was, therefore, simply one of regularity of pleadings and proceedings; that the parties had waived all matters of mere form by going to final hearing on the merits and submitting the case to the court, and that their substantial rights had not been violated by this mode of proceeding. The court thereupon heard the evidence presented by the parties, which related principally to the point whether the premises had been abandoned as a homestead at the time of the sheriff's sale mentioned in the pleadings; and rendered a similar judgment to that previously entered. The case is brought here both on writ of error and on appeal, the plaintiff adopting both modes to obviate a possible objection, which otherwise might have been taken to our jurisdiction.

There would be great force in the observations of the court below, if the different causes of action presented by the parties could, by the usual forms of proceeding, either at law or in equity, be disposed of in one suit. It might then very well be said that as by stipulation the case had been submitted to the court for determination, it was too late to object to the form of the proceedings. If it was an equity case, then it was properly before the court; if it was a case at law, a jury having been waived, it was also properly there. In either view, the relief warranted by the facts would be administered. But here no such disposition could be made of the case presented by the petition and the one presented by the answer. The first is strictly a suit in equity seeking special relief, which only a court of chancery can grant. The second is an action at law for the recovery of real property, with the rents and profits. The two cases are entirely different in their nature, and can be determined, where the distinctions between legal and equitable proceedings are maintained, only in separate suits. In the one case, if the allegations of the plaintiff be sustained, the judgment must be declaratory and prohibitory, adjudging that the deed of the sheriff to the defendant constitutes a cloud upon his title, and enjoining the defendant from asserting any claim to the premises under it. In the other case, if the defendant establishes his averments, the judgment must be for the possession of the premises and the rent and profits.

In the Federal courts such a blending of equitable and legal causes of action in one suit is not permissible under the Process Act of 1792, substantially re-enacted in the Revised Statutes, which declares that in suits in equity, in the Circuit and District Courts of the United States, the forms and modes of proceeding shall be according to the principles, rules, and usages which belong to courts of equity. 1 Stat. 276, sect. 2; Rev. Stat., sect. 913. This requirement has always been held obligatory upon parties and the court whenever the question has been raised. Thompson v. Railroad Companies, 6 Wall. 134. A party who claims a legal title must, therefore, proceed at law; and a party whose title or claim is an equitable one must follow the forms and rules of equity proceedings as prescribed by this court under the authority of the act of Aug. 23, 1842. 5 Stat. 518, sect. 6. The case of Hornbuckle v. Toombs, reported in the 18th of Wallace, does not conflict with this view; it only decides that the Process Act of 1792 does not extend to proceedings in the courts of the several Territories, which may be regulated by their respective legislatures.

In this case there is nothing in the answer of the defendant which would render it good as a cross-bill, even had it been drawn in due form and filed as such bill by leave of the court, for it seeks legal and not equitable relief. Story, Eq. Pl., sect. 398.

We are of opinion, therefore, that the court below should have granted the motions of the plaintiff. So long as the Process Act, respecting the modes and forms of procedure in equity cases, remains in force, parties have a right to insist that its provisions, however variant from the practice of the State courts, or open to objection, shall be followed, and should be permitted to recede from a stipulation waiving them, improvidently made, as the one in this case evidently was, at any time before final hearing and judgment.

There is an additional reason for sending the case back,-that the evidence as to the abandonment of the homestead of the plaintiff is very unsatisfactory, and leaves great doubt on our minds whether the conclusion reached by the court below on this point was correct. We do not think that a homestead can be considered as abandoned because occupied by tenants, and the owner is temporarily residing elsewhere. According to the decisions of the Supreme Court of Texas, it would appear that, in order to work a forfeiture of the right to the homestead, the owner's cessation of occupancy must be with an intention of total relinquishment, shown by clear and decisive circumstances. The trifling sum at which the premises were suffered to be struck off would seem to indicate that at the sale little confidence was felt in the validity of the title which would be acquired. On the rehearing, this matter will receive a more full and careful consideration.

The judgment will be reversed, and the cause remanded with directions to the court below to allow the plaintiff to amend his petition, or bill of complaint, as he now designates it, and to strike out of the answer of the defendant his prayer for the possession of the premises and the value of the rents and profits; and it is

So ordered.


text: Talk:Hurt v. Hollingsworth/Opinion of the Court

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


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Page:A book of the Cevennes (-1907-).djvu/96

58 On the third day the Calvinists met with no better success. One man troubled them greatly, an aged hermit from the Mont Denise, who had been an artillery officer in his younger days. He was now very old and bent double; but the fire of battle kindled in his veins, and he undertook the disposition of the artillery and pointed the guns. "That holy man," says a contemporary historian, " did so well that he killed more men than did all the arquebusiers together."

The Huguenots lost heart and demanded a parley. They sent Christopher d'Allègre as their envoy into the city. This man must have been endowed with considerable effrontery to accept such an office, after having betrayed and robbed his fellow-citizens. He appeared before the consuls with a confident air, and demanded that the gates should be thrown open to Blacons. "How can you suppose," said he, "that we intend harm, we who are zealous propagators of the Reformed religion and the defenders of the oppressed? We are incapable of committing acts of violence. We will not exact of you any contribution, not even food for our men. All that we seek is to hew in pieces the gods of wood and stone and emblems that profane the temple of the living God."

But the consuls knew what such protestations were worth, by the experience of the refugees of S. Paulien, which had offered no resistance to the Huguenots. They dismissed the envoy, and he returned to stimulate the investing army to renewed exertions. At once, in a paroxysm of zeal, the host rushed again to the attack; but the citizens sallied forth, cut them down, and made many captures.

Next day the consuls and the bishop hoisted flags on


text:
Ricker v. Powell

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. Melville W. Fuller and Mr. W. C. Goudy for the appellant, and by Mr. Edward S. Isham, Mr. Julius Rosenthal, and Mr. A. M. Pence for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Ricker v. Powell


text: Talk:Ricker v. Powell

title: Talk:Ricker v. Powell


text:
Ricker v. Powell/Opinion of the Court

This is an appeal from an order of the Circuit Court refusing the appellant leave to file a bill a review in that court. The facts are as follows:--

On the 8th of April, 1869, one H. H. Walker mortgaged to Powell, the appellee, the N. E. 1/4 of the S. W. 1/4 sec. 5, T. 38, N. R. 14 E., forty acres, to secure a note for $40,500, payable twelve months after date, with interest at the rate of ten per cent per annum. The land was afterwards subdivided into blocks, and sold and conveyed at different times to different purchasers. On the 23d of July, 1874, Powell filed a bill in equity in the Circuit Court for the Northern District of Illinois to foreclose this mortgage, making all persons parties who held title to the land under conveyances by the mortgagor. Among other parties were the appellant, Ricker, as owner of block No. 14; one Orvis, as owner of the south one hundred feet of block No. 16; and Rogers, Greenbaum, & Foreman, having a claim, by way of mortgage or deed of trust, on the north two hundred and one feet of block 16. Ricker, in his answer, claimed that his block 14 should not be sold until after block 18 and the two portions of block 16, above described, had been exhausted. The several questions presented were litigated between the defendants, there being no defence as against Powell, the mortgagee; and on the 5th of June, 1875, a decree was rendered finding due him the sum of $14,853.33, and establishing his lien on the whole forty acres, but directing that the property be sold in the following order, to wit: 1. The north two hundred and one feet of block 16, subject to the claim thereon of Rogers, Greenbaum, & Foreman. 2. The south one hundred feet of block 16. 3. Block 14. 4. The interest of Rogers, Greenbaum, & Foreman in the north two hundred and one feet of block 16. The estate of Greenbaum and others was not defined in the decree, but in their answer it was described as a deed of trust to Rogers, executed by one Kinney, to secure a note of $12,000 given to Samuel J. Walker, bearing date Nov. 25, 1872, payable three years after date, with interest at the rate of eight per cent per annum, and owned by Greenbaum and Foreman.

From this decree Orvis, as owner of the south one hundred feet of block 16, appealed to this court, and the case was docketed here Sept. 23, 1875. The appeal came on for hearing at the last term, and the errors assigned were, in substance, that block 1, and the north two hundred and one feet of block 16, without any reservation in favor of Greenbaum and others, should have been sold before the south one hundred feet of block 16. Ricker did not appeal, but he appeared by counsel and filed a brief on the hearing of the appeal of Orvis. Early in the term the decree of the Circuit Court was affirmed, so far as the order of the sale was concerned. Orvis v. Powell, 98 U.S. 176. Later, a rehearing was granted and further arguments filed, but on the second hearing the same decree of affirmance was entered. The final mandate was sent down from here May 15, 1879, and on the 21st of the same month Ricker petitioned the Circuit Court for leave to file a bill of review, on the ground of errors of law apparent on the face of the record, and which are the same as those presented in this court on the appeal of Orvis; on the ground of fraud and surprise in the entry of the original decree, he having been led to suppose that the decree would be entered for the sale of the north two hundred and one feet of block 16, without any reservation in favor of Greenbaum and others, and not knowing that any thing had been done to the contrary until he got the printed record in December, 1877, or January, 1878, when it was too late for him to appeal; and also on the ground of having discovered, since the original decree, evidence to show that when he, Ricker, bought block 14, the mortgagor was the owner of the note now held by Greenbaum and Foreman, and that he did not transfer it until September or October, 1873, and then only as collateral security for an antecedent debt which he owed of $9,000 or $9,500. No offer was made to perform the decree, so far as Powell was concerned, and the decree itself still remains unsatisfied.

Upon this showing the Circuit Court refused leave to file the bill of review, and this appeal from that refusal has been taken.

Without intending to decide that an appeal will lie to this court from an order of the Circuit Court refusing leave to file a bill of review for newly discovered matter, we are satisfied the refusal in this case was right. There is no dispute with Powell either as to the amount due him or as to his right to have the mortgaged property sold. The only controversies in the case are between the defendants as to the order in which their respective interests in the property shall be subjected. In these controversies Powell has no concern. His security is ample, and it is of no importance how he gets the money, which is his due, provided he gets it. He has already been kept out of it nearly five years because of the disputes between the different parties in interest as to their rights as between themselves. The delay thus far he has been compelled to submit to, because the parties were entitled to what was done as a matter of right. Now, however, they are asking a favor, for a bill of review on the ground of newly discovered matter can only be filed in special leave, which depends on the sound discretion of the court to which the application is made. Thomas v. Harvie's Heirs, 10 Wheat. 146; Rubber Company v. Goodyear, 9 Wall. 805; Story, Eq. Pl. 421 c; 2 Daniell, Ch. Pr. (4th ed.) 1577. 'It may be refused, although the facts, if admitted, would change the decree, when the court, looking to all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause, unadvisable.' Story, Eq. Pl., sect. 417; Griggs v. Gear, 8 Ill. 2.

As the decree stands, a very considerable portion of the mortgaged property must be sold before that of Ricker can be reached. If that sells for enough to pay the debt, the bill of review would be unnecessary. What it actually is worth, or what it will be likely to bring at the sale, nowhere appears.

The rule is well settled, subject, however, to some exceptions, that 'before a bill of review. . . can be filed the decree must be first obeyed and performed. . . . Thus, if money is directed to be paid, it ought to be paid before the bill of review is filed; though it may afterwards be ordered to be refunded.' 2 Dan. Ch. Pr. (4th ed.) 1582; Story, Eq. Pl., sect. 406. Chancellor Kent thus states the rule and the reason of it in Wiser v. Blachly, 2 Johns. Ch. 488: 'In the first place, the party asking for a bill of review must generally show that he has performed the decree; especially if it be. . . a decree for the payment of money, and he must likewise pay the costs, and nothing will excuse the party from this duty but evidence of his inability to perform it. Williams v. Mellish, 1 Vern. 117; Fitton v. Macclesfield, id. 264; Cooper, Eq. Pl. 90; Note to Bishop of Durham v. Liddell, 2 Bro. P. C. 63. This appears to be a settled rule, laid down both in the ancient and modern books; but the petitioners have paid no attention to this rule, for there is no offer to perform any part of the decree or even to bring the money into court, or any pretext of poverty, want of assets, or other inability to do it. There is wisdom in the establishment of such a provision, and it ought to be duly enforced. Its object is to prevent abuse in the administration of justice, by filing of bills of review for delay and vexation, or otherwise protracting the litigation, to the discouragement and distress of the adverse party.' These words of this learned chancellor are peculiarly applicable to the facts of this case. The decree, so far as Powell is concerned, is for money, and that it be paid to him. There is no pretence of any performance of this decree, or any offer to perform. The money is all due, and ought to be paid. The effort on the part of Ricker is to increase the liability of the first piece of property to be sold, not with any view to protect the interests of Powell, but only his own. Orvis, whose property stands second in the order of sale, is in no position now to insist that the interest of Greenbaum and Foreman should be sold before his property, because that question was settled here on his appeal. The dispute now is between Greenbaum and Foreman and Ricker as to whether their property or his should be sold first. The true way is to let the sale go on according to the decree until the property of Ricker is reached. Then let him pay Powell the balance remaining due, and, if he chooses and can get the necessary leave, file his bill of review to reverse that part of the decree which puts the sale of the interest of Greenbaum and Foreman after him, and thereby charge what he may be compelled to pay on them instead of himself. He makes no such offer in his bill, and fails entirely to give any reason why he does not. Clearly, under these circumstances, he was not entitled to the leave he asked, and his petition was properly denied.

It is contended, however, that the right to file a bill of review can only be denied when the bill is for newly discovered matter alone, and that as this bill is for errors of law, as well an newly discovered matter, the refusal of leave was equivalent to the denial of a strict legal right, which did not in any manner depend on the discretion of the court. The proposition may, with equal propriety, be stated the other way, to wit, that the right to file a bill of review without leave exists only when the bill is brought for error of law alone, and as this bill is for newly discovered matter as well as error of law, it can only be filed on leave, which rests in the sound discretion of the court. The application was for leave to file the bill as a whole, and not in parts; and if as a whole it required leave, the part which, if it stood alone, could be put on file without, must stand or fall with the incumbrances that have been attached to it. This bill, as a whole, could only be filed with leave, and consequently as Ricker has, by the form of proceedings adopted, voluntarily waived his strict legal right to file for errors of law without leave, he must abide the rules applicable to cases where leave is required.

As to the errors of law assigned, the bill is evidently bad, because the decree was rendered more than two years before the petition for leave to file was presented (Thomas v. Harvie's Heirs, supra); but there is nothing now to prevent Ricker from asking leave to file another bill for the newly discovered matter, if he performs the decree as to Powell. Or he may wait until the property has been sold, which by the decree must be subjected before his, and then, on paying the balance remaining due, apply for leave to bring in the newly discovered evidence against Greenbaum and Foreman, and have their rights determined according to the facts as they shall thus be made to appear. But however that may be, upon the application as made below the leave was properly refused, and the decree to that effect is consequently

Affirmed.

title: Ricker v. Powell/Opinion of the Court


text: Talk:Ricker v. Powell/Opinion of the Court


text:
Elastic Fabrics Company v. Smith

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

This is a bill in equity, filed Nov. 19, 1868, by William Smith against the Glendale Elastic Fabrics Company, wherein he alleges that he is the original and first inventor of certain new and useful improvements in corded and elastic fabrics, for which letters-patent of the United States No. 9653, dated April 5, 1853, were, in due form, issued to him; that the letters, after they were extended, March 28, 1867, for seven years, were finally reissued in three parts,-reissue No. 2848, Jan. 14, 1868, division A, for improvements in weaving; reissue 3014, June 30, 1868, division B, for improvements in woven fabrics; and reissue No. 2844, Jan. 14, 1868, division C, for improvements in looms for weaving; that the company has infringed the rights secured to him by divisions A and C. He therefore prays for an injunction and an account.

The company denies the allegations of the bill as to novelty and infringement, and claims that the reissues were illegal.

Smith, Jan. 22, 1870, filed in the Patent Office a disclaimer alleging that the specifications and claims of division B are too broad, and include that whereof he is not the inventor.

The court below, on the cause being set down for hearing, adjudged that the letters as reissued in division A and division C were valid; that Smith was the original and first inventor of the improvements therein described; that he recover of the company the profits received or made by it from the use, manufacture, or sale of the patented improvement; that a master take and report an account of such profits; and that an injunction be awarded.

The master reported that the company had made no profits, and the court, Jan. 27, 1876, passed a decree against the company for costs of suit. The company thereupon appealed.

Mr. Benjamin Dean for the appellant.

Mr. R. P. Lowe for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Elastic Fabrics Company v. Smith


text: Talk:Elastic Fabrics Company v. Smith

title: Talk:Elastic Fabrics Company v. Smith


text:
Elastic Fabrics Company v. Smith/Opinion of the Court

For all practical purposes, except costs, the appellant was successful in the court below. While the validity of the appellee's patent was sustained, it was a fruitless victory to him, because the patent expired before the determination of the suit, and the court found that he was not entitled to recover from the appellant either profits or damages. As the decree stands, it sustains an expired patent, and does no more. When it was rendered against him, the appellant was left at liberty to use the patented machine in any way he chose, and he has not been required to pay any thing for the use he made of it while the patent was in force. The appeal, therefore, presents only a moot case except as to costs.

We think the disclaimer as to the reissued patent, division B, had no effect on the costs in this case, because the question presented for decision was whether, notwithstanding that disclaimer, the other divisions of the reissue should be sustained. The statute as to costs after a disclaimer (Rev. Stat., sect. 4922), therefore, has no application to this suit, and the appeal is practically reduced to the single question whether, if the decree below should be reversed, the appellee ought to have his costs in that court, and, if so, how much. No appeal lies from a mere decree respecting costs and expenses. Canter v. The American and Ocean Insurance Companies, 3 Pet. 307. As this case comes within the reason of that rule, we affirm the decree below without examining the merits.


text: Talk:Elastic Fabrics Company v. Smith/Opinion of the Court


text:
Railroad Company v. Trook

MOTION to dismiss a writ of error to the Supreme Court of the District of Columbia.

Trook, in an action in the court below against the Baltimore and Potomac Railroad Company, recovered judgment, Feb. 19, 1877, for $4,000 and costs of suit. A motion for a new trial was then made on exceptions taken during the progress of the cause, and on account of excessive damages. Trook entered a remittitur of $1,500, and the judgment was ultimately affirmed at a hearing in general term. The company then removed the case here by writ of error, which Trook moves to dismiss, on the ground that this court, under the act of Feb. 25, 1879 (20 Stat. 320), has no jurisdiction, as the 'matter in dispute exclusive of costs' does not exceed 'the value of $2,500.'

Mr. James G. Payne in support of the motion.

Mr. Enoch Totten, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Railroad Company v. Trook


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Page:A book of the Cevennes (-1907-).djvu/97

Rh every tower, and minstrels paraded the walls playing lively tunes on hautboys, fifes, and clarions.

Blacons supposed that they must have received reinforcements. He called his officers together and said, "See, gentlemen, how the citizens of Le Puy mock us! Let us chastise them severely for such imprudent and unseemly mirth." But he could no longer rouse his host to venture on another assault. His soldiery dispersed over the open country to sack and burn villages, desecrate churches, and hang such priests as they could take. They completely wrecked five or six monasteries, the castles of the bishop, and they set fire to the peasants' harvests, so that a sheet of flame ran over the country as far as the eye could see. In a few days the cannon were withdrawn, and not a Calvinist in arms remained before the walls of Le Puy.

So the city can boast proudly, "Civitus non vincitur, nec vincetur," or in the words of Odo de Gissey, "Ne fut oncq' surmontée, ni le sera."


text: Talk:Railroad Company v. Trook

title: Talk:Railroad Company v. Trook


text:
Railroad Company v. Trook/Opinion of the Court

In cases brought here by writ of error for the re-examination of judgments of affirmance in the Supreme Court of the District of Columbia, the value of the matter in dispute is determined by the judgment affirmed without adding interest or costs. The judgment in this case, after the $1,500 had been remitted to avoid a new trial, did not exceed $2,500. Such being the case, under the rule established in Railroad Company v. Grant (98 U.S. 398), our jurisdiction has been taken away.

The motion to dismiss will be granted, each party to pay his own costs; and it is

So ordered.


text: Talk:Railroad Company v. Trook/Opinion of the Court


text:
Lansdale v. Daniels

ERROR to the Supreme Court of the State of California.

The facts and the assignment of errors are stated in the opinion of the court.

Mr. Rodney Mason for the plaintiff in error.

Mr W. W. Cope and Mr. Walter Van Dyke, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Lansdale v. Daniels


text: Talk:Lansdale v. Daniels

title: Talk:Lansdale v. Daniels


text:
Lansdale v. Daniels/Opinion of the Court

Pre-emption rights of the kind in controversy are regulated by the act of March 3, 1853 (10 Stat. 244), from which it appears that unsurveyed as well as surveyed lands, not exempted by the same act, are subject to the pre-emption laws, with all the excetions, conditions, and limitations expressed in such, unless otherwise herein provided. Provision is also made for the appointment of a surveyor-general and of a register and receiver, with the same powers and duties as conferred and prescribed under the prior pre-emption laws. Official surveys were to be made, and the same section which gives the right to pre-empt the lands provides that, where unsurveyed lands are claimed, the usual notice of such claim shall be filed within three months after the returns of the plats of surveys to the land-office.

Proceedings in the nature of an action of ejectment were instituted by the plaintiff to recover certain lands situated in Humboldt County, California, and damages for their detention. Service was made; and the defendant appeared and filed what is called in the State practice an answer and cross-complaint, in which he admits possession, but denies that it is wrongful, and sets up a pre-emption title to the lands.

Complete title to the lands is claimed by the plaintiff under a patent from the United States, issued to him as a pre-emptor. On the other hand, the defendant claims that he was justly and legally entitled to the patent, which was wrongfully issued to the plaintiff; and the object of the cross-complaint is to establish a trust in favor of the defendant, and to compel the plaintiff to convey the lands to the defendant.

Every allegation of the cross-complaint being denied by the plaintiff, he demurred to the same, and showed for cause as follows: 1. That it does not appear by the allegation of the same that the defendant filed the required notice of his claim in the land-office for the district within three months after the plats of the survey of the lands were returned to the said land-office. 2. That it appears that all the matters in controversy had previously been determined and adjudicated by a competent tribunal in an issue respecting the title to the same property between the same parties. 3. That it does not appear that the defendant ever made the proof required by law before the register and receiver of the land-offices, prior to the day appointed for the commencement of the sale of the land. 4. Because the cross-complaint shows that the defendant did not in person occupy the land for nearly a year before the cross-complaint was filed.

Hearing was had; and the court of original jurisdiction sustained the demurrer and rendered judgment for the plaintiff, which, on appeal, was affirmed by the Supreme Court. Being dissatisfied with the judgment, the defendant sued out a writ of error, and removed the cause into this court.

Errors assigned here are as follows: 1. That the court below erred in sustaining the demurrer to the cross-complaint. 2. That the court erred in affirming the judgment of the subordinate State court. 3. That the court erred in holding that the declaratory statement of the defendant was a nullity because it was filed before the plats of survey were returned into the land-office by the surveyor-general.

Sufficient appears to show that the land was unsurveyed, and that the plaintiff made entry and settlement of the land in controversy on the first day of November, 1853, before the plats of survey were made; that the defendant made entry and settlement on the same quarter-section the 22d of February, 1854, the land being still unsurveyed. Nothing is exhibited in the record to enable the court to ascertain the precise dated of the survey, but it appears that the defendant filed his notice of claim or declaratory statement prior to the return of the plats of survey to the local land-office, the record showing that the declaratory statement of the defendant was filed on the twentieth day of February, 1856, and that the plats of the surveys of the land were not returned into the local land-office until the 26th of April following.

Congress has provided that where unsurveyed lands in that State are claimed by pre-emption, the usual notice of such claim shall be filed within three months after the return of plats of surveys to the land-officer, and proof and payment shall be made prior to the day appointed by the President's proclamation for the commencement of the sale, including such lands.

Declaratory statements under the original act might be made within three months after the return of the plats of surveys to the local land-offices, and it was effectual as a step to secure the right, if it was made within one year from the passage of the act, which last provision was amended by a subsequent act, and extended to settlements made prior to and within two years after the passage of the amendatory act. 12 Stat. 410.

Due settlement of the quarter-section in controversy was made by the plaintiff more than four months before the defendant entered upon it and commenced his settlement, but he did not file the usual notice of claim or declaratory statement until the 11th of October, 1858, more than two years after the amendatory act went into operation. Authority to file such a declaratory statement within three months after the plats of survey are returned into the local land-offices is expressly given by the act of Congress, but there is no authority given to file before that time; from which it appears that the declaratory statement filed by the defendant was premature. Attention to that subject was called on the trial of the case in the court below, and the Supreme Court of the State held that the statement of the defendant, inasmuch as it was filed without authority of law, was a nullity, and this court adopts that conclusion as correct.

System and order are essential in administering the land-offices, and if a party may anticipate the time for such an act as prescribed by law for two months, it is not perceived why he may not for two years, or even for a longer period, which would necessarily introduce confusion, uncertainty, and irregularity of practice in the local offices of the Land Department. For these reasons the court is of the opinion that the declaratory statement filed by the defendant is inoperative and without any legal effect. Daniels v. Lansdale, 43 Cal. 41; 1 Lester's Land Laws, 400; Copp's Land Laws, 420.

He filed his declaratory statement more than two months before the return of the plats of survey, and in direct violation of the law upon the subject, which required it to be filed within three months after such return, as appears from the explicit language of the act; nor can the court relieve the defendant from the consequences of his failure to comply with the express requirement.

Opposed to that is the suggestion that the statement remained in the local land-office when the plats of survey were returned there; but that circumstance will not remove the difficulty, as it was made and filed without authority of law, and was in every sense an unofficial document not belonging to the office. Such a notice of claim or declaratory statement is indispensable necessary to give the claimant any standing as a pre-emptor, the rule being that his settlement alone is not sufficient for that purpose.

Attempt is made to show that the plaintiff failed to comply with the requirements of the pre-emption laws as to the settlement, occupancy, and cultivation of land entered for pre-emption; but the court is of the opinion that the defence in that regard is wholly unsustained. Nothing of moment is alleged in the answer to support the alleged defect, except that the plaintiff purchased a dwelling-house, instead of erecting the one which he occupied. His entry and occupancy of the tract are admitted; and the court is of the opinion that it is immaterial whether he built the dwelling-house himself or hired an agent to erect it for him, or whether he purchased it after it was built by another, provided it appears that he was the lawful owner of the dwelling-house, and made the entry and settlement in good faith, and continued to occupy and cultivate the land, as required by the pre-emption laws. Enough appears to show that the dwelling-house was there on the land, and that it was owned, possessed, and occupied by the plaintiff as his home more than three months before the defendant entered and attempted to make his settlement. 1 Lester's Land Laws, 424.

Suppose that is so, still the defendant insists that he was entitled to the patent because the plaintiff did not file his declaratory statement until more than two years after the plats of the survey of the land were returned into the local offices. Grant that, but it only shows that both parties settled upon the land while it was unsurveyed, and that each was to some extent in fault in filing his declaratory statement, the difference being that the defendant filed his before he had any right to file it under the pre-emption act, which rendered it a nullity, and that the plaintiff did not file the required notice of claim until the time allowed by the amendatory act had expired. Such a notice, if given before the time allowed by law, is a nullity; but the rule is otherwise where it is filed subsequent to the period prescribed by the amendatory act, as in the latter event it is held to be operative and sufficient unless some other person had previously commenced a settlement and given the required notice of claim. Johnson v. Towsley, 13 Wall. 72, 91.

Tested by that rule, it is clear that the equity of the plaintiff is superior to that of the defendant, as the latter never filed any other notice of claim than that which preceded the return of the plats of survey into the local land-offices.

Other defences failing, the defendant contends that the plaintiff failed to comply with the requirements of the pre-emption laws in other respects; but the court is of the opinion that the defence in that regard is not made out, it appearing that he had a dwelling-house thereon, of which he was the lawful owner, and that his occupancy was continuous, either in person or by his tenant. 5 Stat. 455, sect. 10; 1 Lester's Land Laws, 424.

Beyond doubt, the declaratory statement of the defendant was a nullity, as it was filed at a time when the act of Congress gave it no effect; and it is equally clear that the notice of claim was not seasonably filed by the plaintiff, but the entry and settlement of the plaintiff were first made,-from which it follows that the equity, as between him and the defendant, is decidedly in his favor, the universal rule in such cases being that in the adjustment of such controversies the superior equity must prevail. Story, Eq. Jur. (9th ed.) sect. 64 d. Qui prior est in tempore potior est in jure. Jeremy, Eq. Jur. 285, 286; Boone v. Chiles, 10 Pet. 177; Adams's Equity (ed. 1872), 148.

Nor does the plaintiff rely entirely upon the proposition that his is the superior equity, which of itself is sufficient to show that the judgment below must be affirmed; but it also appears that the parties were fully heard before the Land Department, where the decision was in his favor, and that he now holds the patent for the land; from which it follows that the legal title is in the plaintiff.

Neither of the parties complied strictly with the law in filing the declaratory statement; but inasmuch as the plaintiff holds the legal title and the superior equity, it is clear that the defendant has no such standing in court as will justify a court of equity in interfering in his behalf.

Complaint is made by the defendant of the decision of the Land Department in granting the patent to the plaintiff, but it is too clear for argument that no case is made to warrant the court here in reversing that decision. Shepley v. Cowan, 91 U.S. 330; Moore v. Robbins, 96 id. 530.

Reference to these authorities is sufficient to show that the defendant is not entitled to the relief asked; but if the law were otherwise, it would not benefit the defendant, as he does not show what questions were litigated before the land-officers, nor does the record contain any specification as to what the rulings of the officers were in regard to any particular point. It appears that there was a contest between the parties there, and that the case was decided in favor of the plaintiff; but the grounds of the decision are not stated. Such being the state of the pleadings, it is impossible to say that any error of law was committed by the tribunal.

Viewed in any light, it is clear that there is no error in the record, and the assignment of errors must be overruled.

Judgment affirmed.


text: Talk:Lansdale v. Daniels/Opinion of the Court


text:
United States v. Curtis Curtis

ERROR to the Circuit Court of the United States for the District of Massachusetts.

This was an action of debt, brought by the United States on a joint and several bond in the penal sum of $20,000, executed May 30, 1862, by Oliver Holman and his sureties, James O. Curtis and Joshua T. Foster, conditioned that said Holman, a paymaster in the army, should faithfully discharge his duties as such; that he should regularly account, when thereunto required, for all moneys received by him, and 'refund at any time when thereunto required any public moneys remaining in his hands unaccounted for.' The only breach assigned in the declaration is that he did not refund when thereunto required the sum of $3,320.02, with interest.

Holman, although named in the writ, was not living when it was sued out. Curtis and Foster were duly served, and by counsel entered their appearance.

It appears from an agreed statement of facts that Holman went out of office Sept. 30, 1865, and on that day rendered a final account, showing nothing due to the United States or to himself. One credit in that account is for '$2,658 stolen, as per report to paymaster-general, Aug. 7, 1865.'

On a final adjustment of the account made March 18, 1872, after the death of Holman, the second auditor found that there was due to the United States $3,320.02. No part of this amount has been paid. It does not appear that any demand therefor was made of Holman's personal representatives, and the sureties had notice of the existence of the claim only by the service of the writ. To enable them to petition for relief in the Court of Claims under the act of May 9, 1866 (14 Stat. 44), the cause was continued from term to term. That court, finding that Holman was not without fault or neglect, dismissed a petition, wherein they prayed for a decree declaring that the amount of the funds stolen should be entered as a credit in the settlement of the account. The sureties then made default, but appeared at the hearing on the assessment of damages, when the agreed statement was filed. The court thereupon entered judgment in favor of the United States for the said sum of $3,320.02, with interest thereon at the rate of six per cent per annum from Oct. 15, 1872.

Each party removed the case here; the United States assigning for error that interest should have been computed from Nov. 30, 1865, and the defendants, that the court erred in awarding against them any sum other than one merely nominal as damages.

Mr. Assistant Attorney-General Smith for the United States.

1. It was the duty of Holman when he went out of office, Nov. 30, 1865, to pay to the United States the moneys then due and in his hands. He and his sureties were bound to know the law in that regard, and such knowledge is equivalent to a demand. He had no right to credit himself with the amount of funds stolen from him (United States v. Prescott, 3 How. 578; Muzzy v. Shattuck, 1 Den. (N. Y.) 233; State v. Harper, 6 Ohio St. 607; State v. Township, 28 Ind. 86; Hancock v. Hayward, 12 Cush. (Mass.) 112; Commonwealth v. Comly, 3 Pa. St. 374; Halbert v. State, 22 Ind. 125); and the accounting officers had no authority to allow such a credit. Farmington v. Stanley, 60 Me. 472; Porter v. Stanley, 47 id. 515; Angel v. Pownal, 3 Vt. 461; Horn v. Whittier, 6 N. H. 94; Carlton v. Bath, 22 id. 559.

2. For not paying over the moneys at that date, he and his sureties are liable. The contract of the latter is not distinguishable from his. He engaged to do certain things, and for not doing them was liable. The sureties engaged that he should do them; and for his not doing them they became liable. The same default or neglect that charges him must charge them. Seaver v. Young, 16 Vt. 662; United States v. Cushman, 2 Sumn. 436; Berg v. Radcliff, 6 Johns. (N. Y.) Ch. 302; Shaw v. McFarlane, 1 Ired. (N. C.) L. 216; Hobbs v. Middleton, 1 J. J. Marsh. (Ky.) 176.

3. Interest runs from that date. Dodge v. Perkins, 9 Pick. (Mass.) 368; Wood v. Robbins, 11 Mass. 506; Gay v. Gardiner, 54 Me. 477; Buzzell v. Snell, 25 N. H. 474; National Lancers v. Lovering, 30 id. 511; Whiteworth v. Hart, 22 Ala. 343; Williams v. Sherman, 7 Wend. (N. Y.) 109, 112; Still v. Hunt, 20 id. 51; Van Rensselaer v. Jewett, 2 N. Y. 139, 140; Adams v. Fort Plain Bank, 36 id. 261; Stacy v. Graham, 14 id. 492; Lynch v. De Viar, 3 Johns. (N. Y.) 303, 310; Clark v. Barlow 4 id. 183; Honore v. Murray, 3 Dana (Ky.), 31; Elkin v. Moore, 6 B. Mon. (Ky.) 462; Sims v. Gondelock, 7 Rich. (S.C..) 23; Kennedy v. Barnwell, id. 124; Barr v. Hazelton, 10 Rich. (S.C..) Eq. 61, 62; Palmer v. North, 35 Barb. (N. Y.) 282, 294; Vermont & Canada Railroad Co. v. Vermont Central Railroad Co. et als., 34 Vt. 1; Stevenson v. Maxwell, 2 Sandf. (N. Y.) Ch. 273; Bassett v. Sanborn, 9 Cush. (Mass.) 68; Cooper v. Rainey, 4 Minn. 532; Leake v. Lawrence, 11 Paige (N. Y.), 80; Evans v. State, 36 Tex. 323.

4. The United States has the right of every creditor whose moneys are wrongfully withheld. When it becomes party to a contract, its relation to the other contracting parties is the same as that subsisting between individuals. United States v. Barker, 12 Wheat. 559; United States Bank v. Planters' Bank, 9 id. 904; United States v. Ames, 1 Wood. & M. 76; United States v. Bank of Metropolis, 15 Pet. 377; The Floyd Acceptances, 7 Wall. 666; United States v. Union Pacific Railroad Co., 98 U.S. 569.

Mr. Thomas H. Talbot, contra.

1. The writ did not make the requisite demand upon Holman or his personal representatives. It ran against neither, and there was, in the absence of a demand, no breach of the bond.

For the purpose of ascertaining the sum due in equity and good conscience, the failure of the defendants to plead does not waive proof as to a demand, for no defect or admission in the previous pleadings can deprive either party of the right to an equitable adjustment of all claims secured by the bond. Merrill v. MacIntire, 13 Gray (Mass.), 157; Attleborough v. Hatch, 97 Mass. 533. If, then, that failure will serve to justify any judgment for the United States, it must be merely for nominal damages.

2. If this court should hold that upon the facts disclosed by the record the sureties are liable for the principal sum, it is submitted that interest thereon should not be awarded. The liability of the sureties must be kept within the strict limits of the terms of the contract, and cannot be enlarged by implication. Bank of Brighton v. Smith, 12 Allen (Mass.), 243. And it did not arise if, when required, Holman should refund public moneys remaining in his hands unaccounted for. No such requirement was made Nov. 30, 1865, from which date the government contends that interest should be computed.

They had also bound themselves that he should, for all moneys officially received by him, 'regularly account.' This he did at the close of his service, and the account which he then rendered showed nothing due from or to the government, and no moneys in his hands unaccounted for.

His next duty was to refund, when required, any moneys which a revision of his accounts should show to be in his hands 'unaccounted for.' That is, he was to respond to a demand for any balance found due from him upon the adjustment of his account at the treasury. Until this adjustment,-and none was made before his death,-no public moneys remained in his hands 'unaccounted for,' and no demand was thereafter made of his representatives.

If, however, the service of the writ is a demand upon the sureties, interest prior thereto should not be allowed.

MR. JUSTICE MILLER, after stating the facts, delivered the opinion of the court.

title: United States v. Curtis Curtis


text: Talk:United States v. Curtis Curtis

title: Talk:United States v. Curtis Curtis


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

To the error assigned by the defendants it is sufficient to say that, having been served with the writ, and appeared by counsel, and having thereafter suffered a voluntary default, that default was a confession of indebtedness on account of the breach of the bond assigned; namely, the failure of Holman, their principal, to pay over the moneys in his hands when thereunto required, and of such demand as imposed upon his sureties the obligation to pay. There remained only the question of the amount due from him on account of moneys in his hands, and of this the auditor's statement of account was evidence which was uncontradicted. There is, therefore, no error of which they can complain.

The United States, however, asserted a right to interest on the amount found due by the auditor from the date at which Holman ceased to be paymaster, namely, Nov. 30, 1865.

Without attempting to decide any other case but this, we are of opinion that the breach of the bond on which the defendants were sued did not occur until Holman, his legal representatives, or his sureties, were required to refund moneys in his hands; that is, until some notice was given that a definite sum in his hands had by the proper accounting officer been found to be due to the United States. Of course, until there was a breach of the condition of the bond, which rendered him or his sureties liable, there could be no right to interest on account of such breach.

The agreed statement shows that no such statement was made or rendered to Holman in his lifetime, or any demand to refund. Nor does it appear that any such statement was rendered to his executors, or a demand made of them or of the sureties, except by the service of the writ.

We are, therefore, of opinion that the earliest moment at which any one became liable on account of the breach of the condition of the bond now sued on was the service of the writ on the defendants, and that such service was a sufficient demand. The court properly allowed interest on that basis.

Judgment affirmed.


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


text:
Hatch v. Oil Company

ERROR to the Circuit Court of the United States for the Eastern District of Michigan.

The Standard Oil Company of Cleveland brought replevin against Alonzo S. Hatch for a quantity of staves whereof it claimed to be the owner, which he, as sheriff of Lapeer County, Michigan, had seized under and by virtue of certain attachments and executions sued out against the property of John J. and Alfred E. Merritt.

There was a verdict in favor of the company, and judgment having been rendered thereon, Hatch sued out this writ of error.

The assignment of errors is set out in the opinion of the court.

The facts giving rise to the litigation are substantially as follows:--

An agreement in writing was entered into March 11, 1874, between the company, an Ohio corporation, and said Merritts, who were residents of said county, whereby the latter sold to the company one million of oil-barrel staves, to be sawed of certain dimensions, and manufactured from good, sound, white oak. They were to be delivered on board cars in Cleveland, Ohio, on or before the first day of June, 1875. The company was to receive them as fast as they were inspected, and pay therefor the sum of $30 per thousand.

Aug. 28, 1874, before the staves were furnished, the parties entered into a new contract, providing that, subject to certain modifications thereinafter mentioned, the former contract was to continue, and that said Merritts shall make the staves, and, as fast as they are sawed, deliver them properly piled in some convenient place, to be agreed upon by the parties, on land in Deerfield, Lapeer County, controlled by the company; that the company shall furnish a man to count the staves from week to week, who, when they shall be so piled and counted, shall give the Merritts a certificate of the amount piled, upon the presentation of which to the company it shall pay $17 a thousand as part of the purchase price of the staves; that upon the piling and counting of them, as provided in the contract, 'the delivery of the same shall be deemed complete, and said staves then become and thenceforth be the property of the second party absolutely and unconditionally;' that the Merritts, 'as agents of the Standard Oil Company,' at their own expense shall, on or about the fifteenth day of August, 1875, begin to draw, ship, and forward the staves to the company at the rate of not less than one hundred thousand per month; that the staves shall be allowed to remain piled for the period of three months before the company shall have the privilege of calling for the shipment of the same, but that it shall be the privilege of the company to insist that they shall remain piled for the period of eight months before the shipment; that the whole quantity shall be delivered by Jan. 1, 1876; that if the shipment of them shall be delayed beyond the period of eight months, and not at the request of the company, then the Merritts shall pay interest, and in addition thereto the cost of insuring; that the company shall have the privilege of calling for the shipment direct from the saw; that the company shall pay the balance of the contract price, deducting interest therefrom at ten per cent per annum on the advances of $17 per thousand from the time paid until the staves shall be received at Cleveland, and also the cost of insuring them against loss by fire after delivery at Lapeer, the amount of said insurance to be $18 per thousand; that if they shall be destroyed by fire before delivery at Cleveland, the loss above said $18 per thousand to fall upon the Merritts; but if the latter shall fail to draw, ship, and forward the staves as agreed, then the company shall be authorized to procure the same to be done, and deduct the necessary expenses from the balance of the contract price, also ten per cent interest on advances and insurance premium paid by them; and that if any balance of the contract price then remains due to the Merritts, the company shall pay the same; but if the advances upon that price, interest, insurance, and the cost and expenses of shipment exceed the balance due upon such price, the Merritts, on demand, shall pay the same.

The Merritts leased, Aug. 28, 1874, to the company a tract of land adjoining their mill, and shortly thereafter began to manufacture the staves and pile them on that tract. One Donely was employed by the company to count them. His certificates of the number were from time to time given, and advanced payments were, to the sum of $15,148, made thereon by the company. Its agent, accompanied by one of the Merritts, made, July 10, 1875, a count of the staves, the number being seven hundred and eighty thousand. About fifty thousand of them were piled upon land immediately adjoining that tract. After they had been counted, Hatch made the levies in question.

The contracts and lease were made in good faith, but neither was recorded or filed in any public office.

At their dates, and during the transactions under them, the statute of Michigan contained and following provisions, to wit:--

'4703: SECT. 7. Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud such creditors or purchasers.'

'4706: SECT. 10. Every mortgage or conveyance intended to operate as a mortgage of goods and chattels which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the township clerk of the township, or city clerk of the city, or city recorder of cities having no officer known as city clerk, where the mortgagor resides.'

The chief controversy below was, whether, under the contract, the title to the staves in controversy, at the time when they were seized by Hatch, had vested in the company as vendee or as mortgagee.

Mr. Ashley Pond for the plaintiff.

1. The interest of the company in the staves at the time they were seized by Hatch upon process against the Merritts was that of a mortgagee, the legal title remaining in the Meritts as owners.

2. Up to that time there had been no delivery to the company, and no actual and continued change of possession, within the meaning of sect. 4703 of the statutes of Michigan.

3. There being no such change of possession, actual notice of the unfiled mortgage would not render the instrument valid against creditors. Such has been the uniform ruling where similar statutes have been enacted. Tyler v. Strang, 21 Barb. (N. Y.) 198; Farmers' Loan & Trust Co. v. Hendrickson, 25 id. 484; Stevens v. Railroad Company, 31 id. 590; Robinson v. Willoughby, 70 N. C. 358; Bevans v. Bolton, 31 Mo. 437. Were the law otherwise, there was no proof of such notice to Hatch or to creditors.

4. Assuming that the contract operated as a sale, and not as a mortgage, the title to the fifty thousand staves not piled upon the land covered by the lease had not, at the time they were seized, passed from the Merritts to the company.

Mr. F. H. Canfield, contra.

Mr. JUSTICE CLIFFORD delivered the opinion of the court.

title: Hatch v. Oil Company


text: Talk:Hatch v. Oil Company

title: Talk:Hatch v. Oil Company


text:
Hatch v. Oil Company/Opinion of the Court

Contracts of the purchase and sale of chattels, if complete and unconditional and not within the Statute of Frauds, are sufficient, as between the parties, to vest the property in the purchaser, even without delivery; the rule being that such a contract constitutes a sale of the thing, and that its effect is, if not prejudicial to creditors, to transfer the property to the purchaser against every person not holding the same under a bona fide title for a valuable consideration without notice. The Sarah Ann, 2 Sumn. 211; Gibson v. Stevens, 8 How. 384, 399; 2 Kent, Com. (12th ed.) 493; Leonard v. Davis, 1 Black, 476-483.

Nine hundred and forty-four thousand white-oak barrelstaves, of the value of $17,500, were attached by the defendant as sheriff of the county, under certain processes mesne and final, which he held for service against the manufacturers of the staves, to secure certain debts which they owed to their creditors. No irregularity in the proceedings is suggested, but the plaintiffs claimed to be the owners of the staves by purchase from the manufacturers, and they brought replevin to recover the property. Service was made, and the defendant appeared and demanded a trial of the matters set forth in the declaration. Issue having been joined between the parties, they went to trial, and the verdict and judgment were in favor of the plaintiffs. Exceptions were filed by the defendant, and he sued out the present writ of error.

Errors assigned in the court are as follows: 1. That the court erred in instructing the jury that as soon as the staves were piled and counted, as provided in the second agreement, the title to the same vested in the plaintiff company as vendee, and in refusing to instruct the jury that the only interest the plaintiffs acquired in the staves before they were delivered was as security for advances in the nature of a mortgage interest. 2. That the court erred in refusing to instruct the jury that if there was no actual delivery of the property and change of possession the agreement of sale was void as against the creditors of the manufacturers, because not recorded as required by statute. 3. That the court erred in refusing to instruct the jury that if the evidence did not show that the fifty thousand staves not piled on the leased land were not counted, the title to that parcel did not pass to the plaintiffs for any purpose, and that the defendant, as to that parcel, was entitled to their verdict. 4. That the court erred in refusing to instruct the jury that under the agreement no title to any of the staves passed to the plaintiffs until they were actually placed upon the leased land and were counted by the designated person, and in instructing the jury that the title to the staves piled near the leased land passed to the plaintiffs. 5. That the court erred in refusing to instruct the jury that no title to any staves passed to the plaintiffs other than those contracted to be sold by the first agreement, and that if the jury find that there was any portion of the staves replevied not of that description, that as to such portion the plaintiffs are not entitled to recover. 6. That the court erred in excluding the testimony offered by the defendant, as set forth in the record.

Sufficient appears to show that the manufactuers of the staves, on the day alleged, contracted with the plaintiffs to sell them one million of white-oak barrel-staves of certain described dimensions, to be delivered as therein provided, for the price of $30 per thousand, subject to count and inspection by the plaintiffs, who agreed to receive and pay for the same as fast as inspected. But before the staves had been furnished, to wit, on the 28th of August in the same year, the parties entered into a new agreement in regard to the staves, in which they refer to the prior one, and stipulate that it is to continue in operation, subject to modifications made in the new contract, of which the following are very material to the present investigation: 1. That the manufacturers shall make and deliver the staves properly piled in some convenient place, to be agreed between the parties, on land in Deerfield, to be controlled by the plaintiffs, and that the delivery shall be made as fast as the staves are sawed. 2. That the plaintiff shall furnish a man to count the staves from week to week as the same shall be piled. 3. That when the staves shall be so piled and counted, the person counting the same shall give the manufacturers a certificate of the amount, which, when presented to the plaintiffs, shall entitle the party to a payment of $17 per thousand as part of the purchase price. 4. That upon the piling and counting of the staves as provided, 'the delivery of the same shall be deemed complete, and that said staves shall then become and thenceforth be the property of the plaintiffs absolutely and unconditionally.'

Other material modifications of the first agreement were made by the second, some of which it is not deemed necessary to consider in disposing of the case.

Early measures were adopted to perfect the arrangement, as appears from the fact that the manufacturers, October 4 in the same year, leased to the plaintiffs a small tract of land to be used for piling and storing the staves; and the case shows that all the staves except fifty thousand were piled on that site, the fifty thousand staves being piled on land owned by the manufacturers, about one hundred or one hundred and fifty feet distant from the pile on the leased tract, on which were certain buildings owned and occupied by the lessors, the mill where the staves were manufactured being situated on the same section a little distant from the other buildings. None of the staves were manufactured when the contracts were made.

It was admitted by the plaintiffs that the lease was never filed in the clerk's office and that it was never recorded in the office of the county register of deeds. Certain admissions were also made by the defendant, as follows: That the parties to the contracts acted in good faith in making the same, and that the contracts and lease were duly executed; that all the staves seized were manufactured by the said contractors, and that all except fifty thousand of the same were piled on the leased tract.

Nothing was required at common law to give validity to a sale of personal property except the mutual assent of the parties of the contract. As soon as it was shown by competent evidence that it was agreed by mutual assent that the one should transfer the absolute property in the thing to the other for a money price, the contract was considered as completely proven and binding on both parties. If the property by the terms of the agreement passed immediately to the buyer, the contract was deemed a bargain and sale; but if the property in the thing sold was to remain for a time in the seller, and only to pass to the buyer at a future time or on certain conditions inconsistent with its immediate transfer, the contract was deemed an executory agreement. Contracts of the kind are made in both forms, and both are equally legal and valid; but the rights which the parties acquire under the one are very different from those secured under the other. Ambiguity or incompleteness of language in the one or the other frequently leads to litigation; but it is ordinarily correct to say, that whenever a controversy arises in such a case as to the true character of the agreement, the question is rather one of intention than of strict law, the general rule being that the agreement is just what the parties intended to make it, if the intent can be collected from the language employed, the subject-matter, and the attendant circumstances.

Where the specific goods to which the contract is to attach are not specified, the ordinary conclusion is that the parties only contemplated an executory agreement. Reported cases illustrate and confirm that proposition, and many show that where the goods to be transferred are clearly specified and the terms of sale, including the price, are explicitly given, the property, as between the parties, passes to the buyer even without actual payment or delivery. 2 Kent, Com. (12th ed.) 492; Tome v. Dubois, 6 Wall. 548, 554; Carpenter v. Hale, 8 Gray (Mass.), 157; Martineau v. Kitching, Law Rep. 7 Q. B. 436, 449; Story, Sales (4th ed.), sect. 300.

Standard authorities also show that where there is no manifestation of intention, except what arises from the terms of sale, the presumption is, if the thing to be sold is specified and it is ready for the immediate delivery, that the contract is an actual sale, unless there is something in the subject-matter or attendant circumstances to indicate a different intention. Well-founded doubt upon that subject cannot be entertained if the terms of bargain and sale, including the price, are explicit; but when the thing to be sold is not specified, or if when specified something remains to be done to the same by the vendor, either to put it into a deliverable state or to ascertain the price, the contract is only executory. In the former case there is no reason for imputing to the parties any intention to suspend the transfer, inasmuch as the thing to be sold and the price have been specified and agreed by mutual consent, and nothing remains to be done. Quite unlike that, something material remains to be done by the seller in the latter case before delivery, from which it may be presumed that the parties intended to make the transfer dependent upon the performance of the things yet to be done.

Suppose that is so, still every presumption of the kind must yield to proof of a contrary intent, and it may safely be affirmed that the parties may effectually agree that the property in the specific thing sold, if ready for delivery, shall pass to the buyer before such requirements are fulfilled, even though the thing remains in the possession of the seller.

Where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, Bailey, J., said the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot taken them away without paying the price. Simmons v. Swift, 5 B. & C. 857.

Sales of goods not specified stand upon a different footing, the general rule being that no property in such goods passes until delivery, because until then the very goods sold are not ascertained. But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take the same and to pay the stipulated price, the parties, says Parke, J., are thus in the same situation as they would be after a delivery of goods under a general contract, for the reason that the very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. Dixon v. Yates, 5 Barn. & Adol. 313, 340; Shep. Touch. 224.

When the agreement for sale is of a thing not specified, or for an article not manufactured, or of a certain quantity of goods in general without any identification of them or an appropriation of the same to the contract, or when something remains to be done to put the goods into a deliverable state, or to ascertain the price to be paid by the buyer, the contract is merely an executory agreement, unless it contains words warranting a different construction, or there be something in the subject-matter or the circumstances to indicate a different intention. Benjamin, Sales (2d ed.), 257; Blackburn, Sales, 151; Young v. Matthews, Law Rep. 2 C. P. 127-129; Logan v. LeMesurier, 6 Moore P. C. C. 116; Ogg v. Shuter, Law Rep. 10 C. P. 159-162; Langton v. Higgins, 4 H. & N. 400; Turley v. Bates, 2 H. & C. 200-208.

Exactly the same views are expressed by the Supreme Court of the State as those maintained in the preceding cases. Speaking to the same point, Cooley, C. J., says, when, under a contract for the purchase of personal property, something remains to be done to identify the property or to put it in a condition for delivery, or to determine the sum that shall be paid for it, the presumption is always very strong, that by the understanding of the parties the title is not to pass until such act has been fully accomplished. Such a presumption, however, is by no means conclusive; for if one bargains with another for the purchase of such property, and the parties agree that when they do in respect to its transfer shall have the effect to vest the title in the buyer, he will become the owner, as the question is merely one of mutual assent, the rule being, that if the minds of the parties have met, and they have agreed that the title shall pass, nothing further, as between themselves, is required, unless the case is one within the Statute of Frauds. Consequently, it was held by the same court that if one purchases gold bullion by weight, and receives delivery before it becomes convenient to weigh it, and on the understanding that the weighing shall be done afterwards, the bullion would become the property of the buyer and be at his risk, unless there were some qualifying circumstances in the case. Wilkinson v. Holiday, 33 Mich. 386-388; Lingham v. Eggleston, 27 id. 324, 328; Ortman v. Green, 26 id. 209, 212.

Decisions of other States are to the same effect, of which the following are examples: Pacific Iron Works v. Long Island Railroad Co., 62 N. Y. 272, 274; Groff v. Belche, 62 Mo. 400-402; Morse v. Sherman, 106 Mass. 430, 433; Riddle v. Varnum, 20 Pick. (Mass.) 280, 283; Chapman v. Shepard, 39 Conn. 413-419; Fuller v. Bean, 34 N. H. 290-300.

Modern decisions of the most recent date support the proposition that a contract for the sale of specific ascertained goods vests the property immediately in the buyer, and that it gives to the seller a right to the price, unless it is shown that such was not the intention of the parties. Gilmore v. Supple, 11 Moore P. C. C. 551; Benjamin, Sales (2d ed.), 280; Dunlop v. Lambert, 6 Cl. & Fin. 600; Calcutta Co. v. DeMattos, 32 Law J. Rep. N. S. Q. B. 322-338.

'There is no rule of law,' says Blackburn, J., in the case last cited, 'to prevent the parties in such cases from making whatever bargain they please. If they use words in the contract showing that they intend that the goods shall be shipped by the person who is to supply the same, on the terms that when shipped they shall be the consignee's property and at his risk, so that the vendor shall be paid for them whether delivered at the port of destination or not, this intention is effectual.' s. c. 33 id. 214; 11 W. R. 1024, 1027.

Support in some of the cases cited is found to the theory that the terms of the bargain and sale in this case, inasmuch as they indicate that the intention of the sellers was to appropriate the staves when manufactured to the contract, are sufficient to vest the property in the buyer when the agreed sum to be advanced was paid even without any delivery; but it is quite unnecessary to decide that question in view of the evidence and what follows in the second contract between the parties.

Provision was made that a convenient place should be designated by the parties where the staves should be piled as fast as they should be sawed. Such a place was provided to the acceptance of both parties, and the plaintiffs furnished a man as agreed to count the same from week to week as the staves were piled. Enough appears to show that all the staves, except as aforesaid, were piled and delivered at that agreed place.

In a contract of sale, if no place of delivery is specified in the contract, the articles sold must, in general, be delivered at the place where they are at the time of the sale, unless some other place is required by the nature of the article or by the usage of the trade or the previous course of dealing between the parties, or is to be inferred from the circumstances of the case. Decided cases to that effect are numerous; but the rule is universal, that if a place of delivery is prescribed as a part of the contract the vendee is not bound to accept a tender of the goods made in any other place, nor is the vendor obliged to make a tender elsewhere. Story, Sales (4th ed.), sect. 308.

Where, by the terms of the contract, the article is to be delivered at a particular place, the seller, before he can recover his play, is bound to prove the delivery at that place. ''Savage Manuf. Co. v. Armstrong'', 19 Me. 147.

So when the intention of the parties as to the place of delivery can be collected from the contract, and the circumstances proved in relation to it, the delivery should be made at such place, even though some alterations have been made in the place designated. Howard v. Miner, 20 id. 325-330.

Much discussion is certainly unnecessary to show that, where the terms of bargain and sale are in the usual form, an absolute delivery of the article sold vests the title in the purchaser, as the authorities upon the subject to that effect are numerous, unanimous, and decisive. Hyde v. Lathrop, 3 Keyes (N. Y.), 597; Macomber v. Parker, 13 Pick. (Mass.) 175, 183.

In an action for goods sold and delivered, if the plaintiff proves delivery at the place agreed and that there remained nothing further for him to do, he need not show an acceptance by the defendant. Nichols v. Morse, 100 Mass. 523.

Even when a place of delivery is specified, it does not necessarily follow that the title does not pass before they reach the designated place, as that may depend upon the intention of the parties; and whether they did or did not intend that the title should vest before that is a question for the jury, to be determined by the words, acts, and conduct of the parties and all the circumstances. Dyer v. Libbey, 61 Me. 45.

Where it appears that there has been a complete delivery of the property in accordance with the terms of a sale, the title passes, although there remains something to be done in order to ascertain the total value of the goods at the rates specified in the contract. Burrows v. Whitaker, 71 N. Y. 291-296; Graft v. Fitch, 58 Ill. 373; Russell v. Carrington, 42 N. Y. 118, 125; Terry v. Wheeler, 25 id. 520, 525.

Beyond controversy, such must be the rule in this case, because the contract provides that upon the piling and counting the staves as required by the instrument the delivery of the same shall be deemed complete, and that the staves shall then become and henceforth be the property of the plaintiffs absolutely and unconditionally.

Except the fifty thousand before named, all the staves were so piled and counted; and the case shows that the person designated to count the same approved fourteen certificates specifying the respective amounts of the several parcels delivered, and that the plaintiffs paid on each the $17 per thousand advance as agreed, amounting in all to $15,148.

Personal property may be purchased in an unfinished condition, and the buyer may acquire the title to the same though the poasession be retained by the vendor in order that he may fit it for delivery, if the intention of the parties to that effect is fully proved. Elgee Cotton Cases, 22 Wall. 180.

After an executory contract has been made, it may be converted into a complete bargain and sale by specifying the goods to which the contract is to attach, or, in legal phrase, by the appropriation of specific goods to the contract, as the sole element deficient in a perfect sale is thus supplied. Benjamin, Sales (2d ed.), 263; Rohde v. Thwaites, 6 B. & C. 388.

Examples of the kind are numerous in cases where the goods are not specified, and the decided cases show that if the seller subsequently selects the goods and the buyer adopts his acts, the contract which before was a mere agreement is converted into an actual sale and the property passes to the buyer. One hundred quarters of barley out of a bulk in a granary were agreed to be purchased by the plaintiff, he having agreed to send his own sacks, in which the same might be conveyed to an agreed place. He sent sacks enough to contain a certain part of the barley, which the seller filled, but, being on the eve of bankruptcy, he refused to deliver any part of the quantity sold, and emptied the barley in the sacks back into the bulk in the granary. Held, in an action brought to recover the whole amount, that the quantity placed in the sacks passed to the purchaser, as that part was appropriated by the bankrupt to the plaintiff. Aldridge v. Johnson, 7 E. & B. 885; Browne v. Hare, 3 H. & N. 484; s. c. 4 id. 821; Tregeles v. Sewell, 7 id. 573.

Stipulations in respect to the forwarding and shipping the staves are also contained in the second agreement; but it is not necessary to enter into any discussion of that topic, as it appears that the manufacturers, if they did any thing in that regard, were to act as the agents of the plaintiffs, and if they failed to transport the same to the place of shipment seasonably, the plaintiffs were authorized to do it at their expense. Nor is it necessary to discuss the stipulations as to insurance, as it is clear that they contain nothing inconsistent with the theory that the property vested in the plaintiffs as soon as the staves were piled and delivered at the agreed place of delivery.

Proof of a satisfactory character was exhibited that much the greater portion of the staves were piled upon the leased site, and that the residue were piled on land adjoining, and within a hundred or a hundred and fifty feet from the larger pile. Witnesses examined the staves piled there the several times, and one of them testified that he was there July 10, 1875, with one of the sellers, and made a thorough count of the staves, the number counted being 780,000, and he states that he counted the staves in both piles, and that there were no other white-oak staves on the premises.

Taken as a whole, the evidence shows that the parties treated both piles of the staves as delivered under the contract, the one as much as the other, and that they regarded both as properly included in the adjustment of the amounts to be advanced. When the agent of the plaintiffs went there, as before explained, with one of the sellers, it is certain that they counted both piles, and it is clear that in view of the evidence and the circumstances the jury were warranted in finding that the property in all the white-oak staves piled there passed to the plaintiffs when they were piled and delivered at that place, neither party having objected to the place where the smaller parcel was piled.

Actual delivery of the staves having been proved, it is not necessary to make any reply to the defence set up under the State statute in respect to the sale of goods unaccompanied by a change of possession. Objection is also made that the lease of the premises designated as the place of delivery was not recorded, which is so obviously without merit that it requires no consideration.

Viewed in the light of these suggestions, it is obvious that the first five assignments of error must be overruled.

Exception was also taken to the ruling of the court below in excluding certain testimony offered by the defendant to show that the staves were not cut and made at the time some of the certificates were given to secure the advance, and to show that the staves included in the small pile were never in fact counted, and that no certificate specially applicable to them was ever given. Responsive to the objection of the defendant, the court below remarked, that, if the staves were subsequently piled there to the satisfaction of the plaintiffs, the title passed, it appearing that the certificates were given and the advance paid, which is all that need be said upon the subject, as it is plain that the ruling is without just exception.

Judgment affirmed.


text: Talk:Hatch v. Oil Company/Opinion of the Court


text:
Brownsville v. Cavazos

ERROR to the Circuit Court of the United States for the Eastern District of Texas.

The facts are stated in the opinion of the court.

Mr. Thomas J. Durant for the plaintiff in error.

Mr. James R. Cox for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Brownsville v. Cavazos


text: Talk:Brownsville v. Cavazos

title: Talk:Brownsville v. Cavazos