collected and used by him, so far, at least, as the interests of these creditors are concerned. If married women desire to preserve their rights of property, they should take reasonable care to keep it separate, and in such condition as not, to mislead those dealing with their husbands. They should so manage their property, as not to make it an instrument of fraud upon the rights of others. There must, therefore, be a decree for complainant in conformity with the prayer of the bill.
TIlE "ELEVATOR CAsE." ILI.NSAS CITY ELEVATOR Co. v. UNION PACIFIC Ry. Co. and others. UNION PACIFIC Ry. Co. and others v. KANSAS CITY ELEVATOR Co. and others.
(Circuit Court, lV. D. MissJurt', lV. D.
The r,ght of a to detllrmine, with ant to the eourtq, a lease of real estate as forfeited, and re-enter upon the prem.ses, is a har.,h power, and it is tile duty of the court to restrain it to the most technical limits of the terms and co·nd. tions upon which the right is to he exereised, and a conrt of equity, when necessary, when this power has IJPen exercised, will come in and atIord relief.
S.UIE-CONDITION PRECEDENT-TAXES AND RENTS.
",Vhel e a lease provides for re-entry upon failure to pay taxes and rents, a dr'mand for the payment of sucll taxes and rents is necessarj as a condition precedt'nt to the right of re-entry.
",Vlwre a lease contains a provision that the lessee shall" not nor assign or transfer this agreement, without the WI' tlen c"nsent thereto of the supermtendent" of the lessor, the lessee may either sublet or liSS gn, ·"dth the assent of, he officer namld; and whert', during two or three months of the term, the properry was turnerl over to ailotlwr Without the assent of the lessor, by acquiescing, and fa ling to object for a consi!lerahle period of time, the lJreaeh of the agr"ement w.1I he considerell as waived lJv him.
Under such a lease, the superintendent appointed by the receiver, into whose llands the railro'lll company, the has passed, is' to be regarlled as the superintendent, and his assent to a suhleasd WIn lJe sufficient. 5. When a party seeks to declare a contract forfeited by an act of llis own, he mmt point out spec:ifically some clear act, iu violation of the terms thereof, whicll authorize said forleiture, and in this the alleg"d pooling arrangements on the part of tlle lessees are not suffic:ient to constitnte a breach of the agreement that it .. will use the p1'f'mises for no "the,' purpose than a legitimate business," and w.ll ch<ll'ge only reasunalJle and compensatory commisSIOUS.
In Equity. Gage J; Ladd and Kn1'l1fS J; Ess, for the elevator comrauy. J. P. Usher, A. L. lVillitLillS, and Charles MUJ(}'ve, for the railway companies.
TilE "ELEVATOR CASE."
}.fILLER, J., (orally.) We will proceed this morning to dispose of what is called the "Elevator Case," which has occupied several days in argument. I shall not be able to.day to deliver any but a very brief opinion. There are two bills. One is bronght by the elevator company, the main purpose of which seems to be to prevent the railway company from pulling down and removing the elevator itself. No other relief is asked, except that the railway company shall be enjoined from pullmg down, or tearing down, and removing the elevator. The other is the bill of the railway company, and it states the reasons why they entered on the ground which is the suhject of controversy. Tiley justify their act by referencG to the power which the lease or contract under which the elevator company held conferred upon them, being the right of re-entry. And they ask a declaration or decree that their act, in that particular, shall be affirmed, and their right to re-entry shall be held to be valid. That is the substance of the relief asked in this case. There is no prayer for damages, or compensation, or restoration of possession, or anything of that kind, which will shorten very much the consideration of the case. We are to consiner the sufficiency of the reasons alleged by the railway company for its re-entry upon the ground which it had leased (for I think the instrument is a lease) to the elevator company. I do not feel called upon to There are seventl of these go into any lengthy discu8sionof them. The first two of them are that the elevator company had failed to pay its rent, and had failed to pay its taxes, according to the terms of the instrument. I am quite satisfied that neither in regard to payment of rent, nor in regard to payment of taxes, was there any sufficient foundation for declaring the lease forfeited, or for the exercise of the power of re-entry on the part of the railroad company. As a proposition pervading this doctrine of the right of re-entry by the forfeiture of a leaRe of land, it is to be observed that the power t? be ex,:rcised is a very strong power, and it is one which is exerCIsed without the judgment of a court of justice or of anybody else but the party who is exercising it. The party determines for himself whether he has the right of re-entry, without any resort to a Court of justice. 'rhis is always a harsh power. It has always heen c.onsidered that it was necessary to restrain it to the most technical lImits of the terms and conditions upon which the right is to be exercised. Hence it is that the old common law provided in this class of contracts that it was the duty of the court to see that no injustice :vas done. It is reasonahle, it is natural, that when a contract puts Into the power of one man to say that under certain contingencies, of which he is to be the jud:;e, he shall enter upon the house or home or property of another, and eject him instantly, and take posis reasonable, it is proper, that the contract and the acts whlCh justify such a course of conduct should be construed rigidly
of the right. A court of equity, when necessary, when thlS power has been exercised, will come in and afford relief. In regard to the taxes and rents, the law is well settled, I think, that a demand for the payment thereof is necessary as a condition precedent to the right of re-entry. The next proposition upon which the re-entry in this case depended is that there was a period of two or three montlls during which tbis elevator was run under a verbal lease, without the approval of the railway company or any of its officers. It is sufficient to say, as to this, that if it was provided by the lease that this elevator should be kept in the hands of the original parties, (as it probably was,) it seems to us that the time which elapsed before the railroad company undertook to enforce their rights under that breach of the terms of the lease is enough to condone or waive it. If the written lease under which Mead & Templer held the property is a valid instrument, and if the approval of the superintendent is a valid approval, they waived the former use of it for a month or two by the same parties prior to the execution of that lease. . The next queation is whether the parties forfeited their lease from the railway company by the mak,ng of a lease to Mead & Templer. The argument (and it is a very ingenious one) is that, under this seventh clause of the original lease between the elevator company and the railway company, there was no power to lease or sublet at all, and that the approval and consent of the superintendent were with relation to allowing an assignment of the contract. The article reads as follows:.
"And the said party of the second part further covenants and agrees that it will not sublet said elevator allll warehouse, nor assign or transfer this agreement, without the written consent thereto of the superintendent of the party of the first part, and that it will not use said building for any other purpose than that contemplated by the terms of this contract."
It is said that the meaning of that is that they will not sublet the elevator at all, aud that they can only assign upon the written consent of the superintendent of the rail way company. As I stated before, I cannot enter intD a full discussion of these questions, but it is sufficient to say that, in my opinion, it embraces the subletting, and that it may be done with the consent of tile officer named in the instrument. This subleas8 to Mead & Templer did have the approval of a man who said on the back of it that he "as the superintendent. The only question is, was he such superintendent? It is said that he the railway had was not the superintendent of the company, been put·into the hands of .receiYers, who exercised general control ,oYer the road and its property, and that this man, Mr. Oakes, who !lpproyed of the instrument, was the superintendent of the receivers, and not the superintendent of. the cmnpany.. I tl::ink that ,his approYal was sufficient IO justify tile lease in this case. This
THE "ELEVATOR CASE.
compailY existed when this contract was made with an officer known' as superintendent, and among his duties it wa3specially stated in the by-laws of the company that he should have charge of all the. property and depots of the company. It is my opinion that the former superintendent resigned or was removed, and the reCeIVers were appointed, and they appointed Mr. Oakes superintendent, that he was the legal superintendent of that road, with the power to exercise those very functions that the prior superintendent had possessed; that his acts in pursuance thereof were properly and legally the acts of the railway company. That simply means that the lawful superintendent of that railway corporation at that time was Mr. Therefore, I think that the sublease was a valid lease, and creates no right of re-entry on the part of the company. I do not think it is necessary to enter into an inquiry as to whether this lease, in the nature of its terms, is' ultra vires, or beyond the power of the company, or not. The argument now is that this lease was to run for 20 years, and that the probability was that the company would need the land for t1e ordinary uses of the railroad, and that, therefore, it had not the power of putting this land out of its cuntrul. This argument is not· sound. The company owned the land, and, not having any immediate use for it, it made a lease, fixiug its own terms and the time when it could resnme possession, and it is not, according tu the law, for it to turn around now and sn,y that they need the land. All the doctrines of contracts, all the doctrines of the rights of corporations, are opposed to it. I do not recollect now of any other but one proposition that has been urged. One other ground has been urged as supporting the right of re-entry, and to declare the instrument forfeited; that is, the pooling arrangement which the elevator company entered into. What that arrangement was is not very definit.ely stated. All we know is. that it was a contract, one clause of which is pointed out as authorizing the party to re-enter, in consequence of such contract, upon the ground that it violates the fifth clause of the original lease between the elevator company and the railway company, which says:
"And sain party of the second part further covenants and agrees that it will use said premises for no other purpose than a legitimate business of receiVing and forwarding grain, and that it will charge for storage and deli:-ery of grain from said elevator only reasonable and compensatory comand such as may be charged for like service at other elevators of SImilar character at Kansas City, and that it will in eyery way accommodate and serve shippers and the general public, so as to transact its business, to the best of its ability, to the satisfaction of the liatrons of said party of ·the first part." . . ' . . . .. , '
As I said before, when a party seeks a contract forfeited b! an act of his own, he must point out specially some Clear act in \;lOlation of the terms of ·the lease which authorizes said forfeiturp...
. _. · '.. · · · t · ,, .' · J
This pooling may be a very bad business; it may be· very wicked; it may be as wicked as counsel represent it to be; bu t by the terms of the agreement snch wickedness is in no way made a reason for the forfeiture of this lease. Besides, in regard to this clause, the only point is that it is provided that "said elevator will receive and deliver grain for reasonable and compensatory commissions." There is no proof in this case that they ever refused to do so. The proof, on the contrary, is tha,t the commission they received was reasonable. Here is an agreement under which a forfeiture is claimed on the ground that there must have been exorbitant charges by the elevator company. But the railroad comp,llly have attempted to make no snch pr(Jof here; and the proof on the other side negntives it; and there is no proof that they ever made any but reasonable and compensatory chal·ges. It may be that thiS pooling arrangement confers rights tllat may be maintained in other cases and other suits, but it did not confer the right of re-eutry. This is not the proper place for me to consider that question. It may come tip hereafter in another shape in other suitl:l. All that I have to say now is that the provisions of the le[Lse have not been vio1<lted so as to forfeit the lease ipso facto. I want to call the attention of counsel to what seemg to me to be an error in regard to the rights assumed as growing ant of these suits. I have already said that the right of re-entry and forfeiture, in regard to the terms of the lease. is a right which the courts at common law dealt with very rigidly and strictly, while a Clourt of equity very often sets aside and restores the parties to their former posit. on, and refuses compensalion for any damflge done. There is, however, a elilferent mode of proceedllg to declare the lease forfeited. \Vhen either part.y, le:isor or lessee, claims that acts llave been done which render the continuing of the relation no longer proper, such party can go into a court of equity, on geneml principle!'!, and aE>k to have that lease set aside. canceleJ, and annulled. In that case the court of eqnity sits holdinJ the scales of justice evenly between the parties. and liay say thltt it believes that tilH·h flctS have been done by the lessee. for instance, as ought t.o termin'tle the a;,:reement, or that he shall acconnt by compensation and by payment of damages. Anti the court \\"ill declare the RgI"eement at an end, and set aside, anJ anuullell, and will m"tke sUCll orders as 6 em proper and right. So a. pHty might an actiou for ejectment or for forcible entry and detainer, and these questions might !Ie submitted to a jury and the rights of the parties determined. But in this case the railway company has gO!le with a high hantl and asse,teJ its rights with a strong power. AntI the question, and only question, to be considered is whether it was justified. They did not bring an action in whICh the question of the pool might be considered, but they have simply staled cf>rtain reasons why Wey entered,-why they exercised this power of re-elllr.r; anJ they ask tlw,t their action be approved,
WEST PORTLAND HOMESTEAD ASS'N V. LOWNSDALE.
and their possession quieted. Now, as to this question of pool, whether there is any reason in it, or whether it amounts to anything, is not for me to say in this case. It is not a defense for their having taken forcible possession of this property. The result of these views is that the prayer of plaintiff's bill, asking that the railway company be restrained from tearing down and removing the elevator, will be granted, and the temporal'y injunction will be made perpetual. A declaration will be made that there is not sufficient ground for the railway company to exercise the right of re-entry. And the bill of the ratlway company will be dismu>::ied.
ASS'N V. LOWNSDALE,
(District Court, D. Oregon.
1. PLEA IN EQUITY.
July 20, 1883.)
A pica of the stat.nte of limitations to a bill in eqnity is a pure pIca, and not be accompa ,ied by an answer, unless the de:cnse is antic,pated by the hill, a Id some equitable CIrcumstance is alleged therem for the purpose of avoiding the statute. 2. LBIlTATfON D1 SECTION 5057 OF TIlE HEVISED STATUTES. On September 6, 11'l71, G. and wife conveyed hlock 67 in Carter's nddition to Portland to C., and on AUgU3L 11,1875, conve,'ed Ihe same to the West P. H. A., an:! on Fel'l'llary 19, b7/i, L. appointed the a'signee in bankruptcy of U., and on }larch 27, 18,-3. was about to sell ,a,d hlock as said assignel:', wh n s·tid We.t P. II A. brought suit against saId assignee to enjoin said sale. alleging th"t Ilu Conveyance to U. mistake. Held that, under sect,on 5057 of the Hevise.l Statutes, the suit was barred lJy lapse of time, unlt·ss the mistake was not until within two years I!ext lJefore the cOlllllle'lcement of the suit, which did not appear to lie the
Suit in Equity for Injunction. C. P. IIeald, for plaintiff. George II. Williams, for defendant. . .. DEADY, J. On March 27, 1883, the plaintiff, a corporation ·formed and existing under the laws of Oregon, brought this suit to have the defendant, as the assignee in bankruptcy of Charles l\I. Carter, perpetually enjoined from selling block 67 in Carter's addition to Purtland. The case was beard on a plea in bar to the bill, fOllnded on the limitation contained in section 2 of the uallkrupt act, (section 5U57, Rev. St.,) which provides that"No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a persoll claiming an adverse interest, tOllching any property 01' rights of property transferable to or vested in such assignee, unless urought within two years from the time when the cause of action accrueu for or against such assignee."
The facts stated in the bill necessary to an understanuing of the case are briefly these: