no prOVISIOn made for its payment in the annual budget, and the supreme court, after dealing with all the questions involved in the acts of 1870 and 1876, in their mandate prescribe the form and terms of the writ and the time of the levy of the tax. That mandate will be followed in this case. So far as this proceeding is concerned, the defendant must be credo ited with the amount seized under the firri facias, namely, the sum of $40,000. For the balance of the judgment, with interest, the relator is entitled to a writ of mandamus as prayed for.
PRYZBYLOWICZ V. MISSOURI RIVER R. CO.
(Circuit Court, D. Kansas.
CONSTITUTIONAL LAW- CmIPENsATION FOR PmYATE PROPERTY TAKE,i1" FOR PUBLIC USE.
'rhe payment of compensation to the owner of private property taken for a public use is a condition preeeLient to any right divesting the owner of his pOSses .ion, and a jndgment in his favor for the value of the land, unpaid and unspeured, is not cumpensation made, and does not justify the dispossessing the owner of his property. 2.
SA)IE-EsTOPPEL-AcQUlESCENCII: OF OWNER.
The owner of land may, by his own act, estop himself from demanding actual payment of compensatiun as a conditiun precedent t" the taking for public uses, and if he expressly consents, or, with full knowledge of the taking, makes no objection, Imt permits a public corpuration to enter upon his land and expend money, and carry into operation the purposes for which it is taken, he may not then he permil ted to eject the parties from possessiun for want of payment of the compensation.
SA)!E-RuLTIOAD TAKING L,\ND.
Where the owner of land has knowledge that a railroad company has taken possession of his land and makes no ohjection, but permits the company to bnild its road and operate its trains over the land, and exercises all the rights appertaining to a right of way for puhlic uses for a perioe] of 10 or 12 Ylars, he or llis grantee cannut be permitted to ejeet the company from the land.
Motion for New Trial. FOSTER, J. The constitution of t-be United States provides that private property shall not be taken for public use without just compensation, etc. The constitution of this state contains the wise and salutary provision that right of way shall not be taken by any corporation without full compensation therefor be first made, etc. And the supreme court of this state, and the courts of other states having a like provision, hold that the payment of this compensation is a conriition precedent to any right diYesting the owner of his possef,-· sion; that a judgment in his fayor for the yalue of the land, unpaid a?d unsecured, is not compensation made, and does not justify the dlspossessing the owner of his property. 'Vith this rule of law we are in full accord, and reglnd it as based upon the highest and most sacred principles of j llstice.
PRYZDYLOWICZ V. MISSOURI RIVER R. CO.
But going hand in hand with this doctrine is another rule of law, which is also well grounded in justice and right, and which is recognized and enforced by the courts, and that is that the owner of the land may, by his own act, estop himself from demanding actual payment of the compensation as a condition precedent to the taking for public uses. If the owner gives license, either express or fairly implied; if he expressly consents, or, with full knowledge of the taking, makes no objection, but permits the publi, corporation to enter upon and expend money and carry into operation the purposes for "hich it is taken,-he may not then be permitted to eject the parties from the possession for want of payment of the compensation. The plaintiff in this case has no higher or greater rights in law or equity than Mrs. Mills, his grantor, would have if she was the plaintiff in this action. And if his grantor would have been estopped, then this plaintiff is estopped. If Mrs. Mills had knowledge that this railroad company had taken possession of tliis land, and made no objection, but permitted the company to build its road and operate its trains over this land, and exercise all the rights appertaining to a right of way for public uses for a period of 10 or 12 years, she cannot now be permitted to eject the company from the land. I have found, from all the evidence in this case, that Mrs. Mills did have this knowledge, and did acquiesce in the possession of the railroad company. It is true, there was no direct and positive evidence as to whether she did or did not have such knowledge and make such acquiescence, but, in the absence of any evidence on this point, it would not be a rash presumption to hold that an open, palpable, and notorious possession by the railroad company for a period of so manv years would not likely occur without knowledge of the owner, living much of the time in the vicinity of the land. But in addition to this, in the condemnation proceedings this land is mentioned as a part of the right 0; way of the said road. Mr. Mills, her husband, gave his written ..:onsent that the road might pass through his land, (presum. ab1:r' this land of his wife.) Mrs. Mills had relatives living in Leavenworth, and visited there herself. She also had an agent there who looked after her land and paid taxes on it, as I remember the evidence, and she probably had traveled over this road in going to or from Leavenworth. From all these facts and circnmstances, it requires greater credulity than I am possessed of to believe shd had no knowledge of the possession of the railroad company. On these facts, and the law applicable thereto, this plaintiff cannot reco\'er, and the motion for a new trial must be overruled.
(Circuit Court, D. Minnesota.
ApPLICATION OF VOLUC'iTARY PAYME::'i"TS.
The rule as to voluntary payments is that the debtor may direct the application of such payments upon one of several debts due from him to the creditor.
A voluntary payment, with,n the me1l1ing of this rule, is one m:F1'l hy tin debtor on his own motion, anJ without any compulsory prOCeti3. A payu,eul. made upon execution does not fall within the rule.
CHATTEL MORTGAGE FOJ:ECLOSUHE-STATUTE OF
When, under the statute of Minnesota, a chattel mortgage is placed in the lwnds of the sheriff, with orders to seize and sell the mortgaged property for the purpose of paying the mortgage deht, the sale is made by virtue of le;.;al procecdlllgs, and the proceed, of the sale are in no sense voluntary paymcnts, the application of which the debtor is authorized to direct.
"Where the mortgage foreclosed docs not direct how thc proceeds of the sale of the mortgaged property s1l1l11 be applied, and there are no circumstances from which it can be infcrreJ that a pro j'ata application was intended by the parties, anJ somo of the notcs arc securer! by the indorsement of '" third party as ,veil as by the chattel mortgage, from whieh it would be inferred that the parties intendeJ to apply the proceeds of the sale of the mortgaged property first to the notes not otherwise secured, so as to give the creditor thc full benefit of all of his ,ceurity, the creditor will t.he right to apply the proceeds to the paymcnt of any of the df'bts secured by the mortgage.
Action on Promissory Notes.
Jolin W. Willis, for plaintiff. C. D. O'Brien and J. C. JI. Searles, for defendant.
MCCRARY, J. The rule as to voluntary payments is that the debtor may direct the application of such payments upon one of seyeral debts due from him to the creditor. Tayloe v. SalldiforiZ, 7 "\Vheat. ] 3. Does this rule apply to the present case? A voluntary payment, within the meaning of this rule, is one made by the debtor 011 his own motion, and without any compulsory process. A payment made upon execution does not fall within the rule. When, under the statute of :Jfinnesota, a chattel mortgage is plucecl in the hands of the sheriff, with orders to seize and sell the mortgaged property for the purpose of paying the mortgage debt, the sale is made by virtue of legal proceedings, and the proceeds of the sale are in no sense volunbry payments, the application of which the debtor is authorized to direct. Ii the debtor could not direct the application of the payments, could the creditor? It is strongly urged by counsel for defendant that neither party could direct a particular application, and that the law will apply the proceeds of the sale pro rat(t upon all the notes. Inasmuch, however, as the mortgage cloes not direct how the proceeds of t,he sale of the mortgaged property shall be applied, and since there are no from which it can be infeti:ed that
NICHOLS V. KNOWLES.
pro rata application was intended by the parties, I hold that the creditor had the right to apply the proceeds to the payment of any of the debts secured by the mortgage. Gaston v. Barney, 11 Ohio St. 506. This view is much strengthened by the fact that some of the notes were secured by the indorsement of a third party as well as by the chattel mortgage, from which it may be inferred that the parties intended to apply the proceeds of the sale of mortgaged property first to the notes not otherwise secured, so as to give the creditor the full benefit of all his security. Stamford Bank v. Benedict, 15 Conn. 437; Martin v. Pope, 6 Ala. 532; Mathews v. Switzlel', 46 Mo. 301; Field v. Holland, 6 Cranch, 8; Schuelenburg v. Martin, 1 McCrary, 348; [So C. 2 FED. REP. 747.] Judgment for plaintiff.
The rule as to the application of voluntary payments is that the debtor or party paying the money may. if he chooses, direct its appropriatioil; if he fail, the right devolves upon the creditor; if he fail, the law will make the application according to its own notions of justice.! It is generally conceded that this doctrine has been borrowed from the civil law ; 2 but this has been denied;3 and, without doubt, in its application to partiCUlar cases by the courts in England and this country, the rules of the ciYillaw have been much relaxed. 4 The direction by the debtor as to how the payment shall be applied, need not be express, but may be inferred from circumstances; 5 but if lie does not exercise his right to direct the application of the payment, and it is not fairly inferred from the circumstances under which the payment was made, the money paid becomes the absolute property of the creditor, and he may apply it as he chooses,6 provided he does not, without the debtor's consent, appropriate the payment to an illegal or invalid claim,; such as a claim for usurious interest,S or liquor sold in violation of la \\' ,9 or a nute made without consideration to hinder and defraud creditur5.!O If, however, the debtor consent to the appropriation of the payment to an illt'gal item, he cannot revuke such consent; 11 nor will a court of equity, under such circulUstances, withdraw a payment so
lU. s. v. Kirkpatrick, 9 Wheat. U. S. v. January, 7 Crunch, 57:!; Field v. Holland, 6 Cranch: Sj U. S. v. EckforJ, 1 How. 250; Jones v. U. S. 7 How.6Si; Gordon v. HO'lurt, 2 Storr. C. C. 2-13; Cremer v,Higginson, 1 .:\Ia:-on,: 3"j etc., Alexandria Y. Patten, 4 Cral!ch, 317; :'\at. Bank Y. ).Ierehants' Sat. Bank, gel U. S. Stonev. sej'mour, 1:) \V'?nd. 19; Pickering Y. Dar. 2 Del. eh. 333; Youmans Y. 3-1 :\Iich. 401; :-;at. Bank Y. Bigler.S3 X. Y. Uaker v. Stack.. poole, 9 Cow. 42tJ; Chester v,\\"hee:rJ;.::ht, 15 Conn. f,62; Bank v. Pre:o:scott. 20 Pick. 3-13; \\Yhib.kerv.GrooYer. 54 Ga.174; Jnnrs Y.\\'iIlbm'" 39 \\·is. 3(K)j Lee Y. Early, 44 .:\ld. S-1; Dell Y. Had_ clift', 32 Ark. 6-,1.); ::'oIoOl'e 73 f-a. St. 97; Stc'wart v. Bopkin .... ZO Ohio St. ;ji\2; ::\Ief!!!ott Y. :Mills, 1 Lu. H:I)'mond. 'L 2 Barn. & C. La; Clayton's Case, 1 ':\Ier. i3SO-61O; Brooke Y. Enderb,r, Brod. &: B. ill. See, gener_ allY,2 Pars. Cont. i 2 Cont. 93-1. Y. Hull, (note,) 9 Cow. ii:J; 1.,;0 rcass v. Still";'OI!.. 3 SUlUll. 111.1; v. Tufts, 31 500. See, also, 3 ArneI'. Law Reg. 703; 1 ArneI'. Law 31. 31_\mer. Lead. *291-293. · )lo-s v. Adams. 4 Ired. Eq. 42. Consult 1 Domat , B. 4, tit. I, § 1 EYans' Pothier, (3d ArneI'. Ed.) \\·ood, ClYil L:n...·, 293; 2 Bell's Com. 5:35. 5 Tayloe v. SOl ndiford, 7 \Vhea t. 13; etc., v. Patten, 4 Cranch, 317: S:t\fyer Y. Tappan, 14 H. 330j Fowke v. Bowie, -l lIar. &, J.5li6; StcJne Y. Seymour, 15 19; Hanson v. ROllnsavell, i -l Ill. 23S. 5Xat. Bank Y Bigler, Y. 33; Cremer v. 1 :Masou , 32:}; 1 Amer. LeaLl. Cas.
7 Caldwell V". \Yentworth, 11 X. H. 431; AyeI' v. Hawkins, 19 Yt. :26; Bancroft Y. Dumas, 21 Yt. Rohan v. Hanson, 11 4-1; Parchman v. 12Smedes &,)1. 6:JI. SPickett Y. 1\Ierchants' .:"at. Bank, 32 Ark.
9Phtllips v. 1\Ioscs, 65 101\IcCausland v. 11 Brov,,·u Y. Burns, 67
marle and actually applieeJ.1 After the right of appropriation has passed to the creditor, because of a failure on the Dart of the debtor to direct the appropriation to any specific account, the crefUtor need not obtain the consent of the debtor in appropriating it to any valid claim; 2 and he may even so apply it as to prevent some of the debts or items from being barred by the statute of limitations; 3 but he cannot apply it toa debt not due in prp.ference to a debt actually dne. 4 'Vhere a creditor holds two claims-one in a representative capacity, as trnstee or executor, and one in his individual capacity-he cannot apply a payment made by the debtor, without designating upon which account he pays it, to his individual in preference to the claim due him in his representative character. 5 'Vhether the creditor has actually made an appropriation of a payment to a particular account, and when. may be inferred from all the circu mstances of the case; 6 and he may reserve his right to appropriate a payment to one of several acconnts. until called npon by the debtor to make such appropriation; but, so far as the interests of third persons ma.v be affected, he must act within a reasonable time. 7 ,Vhere, however, a creditor has marle an appropriation of a payment to a particular debt. and so informed the debtor, he cannot afterwards change snch appropriation, and apply it in satisfaction of another claim; 8 and neither of the parties can make the appropriation after a controversy upon the subject has arisen between them; and, a fortiori, nut at the tl'ia1.9 'Vhel'e neither debtor nor creditor makes the application, tHe law will make it, "according to its own notion of the intrinsic ('quity and justice of the case," 10 an <1, as this depends so much upon the circmllstances of each case, it is impossible to lay down any general rule; but the following propositions are st'ttled: (1) The payment will be applied in satisfaction of the debt whose security is most precarious.u (2) To a debt securerl by mortgage rather than to a simple account. u (3) In extingu ishment of 't certain rather than a contingent liability.I3 (4) To extinguish debts prior in time. H (5) To extinguish an existing ehebt, rather than one to become due. I;; St. Paul, JIinn., August 28, 1883. llOBEP.TSOX IIO\L\P.D.
1 Feldman v. Gnmh1e, J. F.q. 491. 2.:\IcLendon v. Frost, 57 Ga.':I·B. 3Jackson v. Burke, 1 D:1l ;Hl; \Villiams v. GritlHh, 5 .l\Iees. &. \V. :100; Y. Cope, 6 l\Iees. \: \V 824; Ash y v . .lames, 11 l\Iees. &. \V. ;)-12; .:\lul'phy v. 61l\Ie. 4iS; Bancroft v. D ,nlas.:21 Yt. 46; .:\Iills Y. Fowkes.;;' Bing .N. C. Brown v. Burns, 67 "Ye. 53;); Pund Y. \Villiams. 1 Gray, 6:31; R:llllsay v. \Varner. 97 :\Iass.8 CI)Jl1pare .:".Ioniteau Rink Y. ::\Iiller, 73 137; \\·00l1 v. Wyhl< 6 Eng. (.\rk) 734; Burn Y. Boulton, 2 C. h. 4j6. ! Eube's Heirs v. St 136 Ab. 49;); Kidder v. ;8 X.II 5J-L 5Cole v. Trull. 9 Pick. 31.); 3cott v. HilS, 13 Pick.061. See Fowke v. Bowie. 4 Hal'. &. J. [) 6. 6S1uw Y P.cton,4 BllT'l.&C. 716; Fr;lzer ,. Ennn, 8 Car. &. P. 7 '4; \Vlllhms Y. GrJ1l:ith, 5 & \V. 3l0; Allen v. CUlver', 3 Denio. 23--1; Ura ,Ad m -r v. Hill. 1 )10.315; Starrett v. Bar... ber. :20 .:\ole. 457. Y. tn2!"haffi. 2 Barn. &. C. 6;); v . .:\IarvllI, 11 b:lriJ. bO; Y. 6 Gill, 5:1; Hos:lll q net v. 6 1'a II nt. .:\byor, etc., v. Pallen, 4 Cranch, 317; and see Emery v. Tichout, IJ Vt. 13; Smtth Y. Loyd. 11 LRh::h. 517; Stamfurd ! allk v. Henedict, 15 Coun. 433; Heilbron Y. J::,issell, 1 Bail. Eq. 435.
UNITED STATES V. REID.
REID and others.
(Circuit Court,8. D. New York.
Motion to Set Aside Execution. Edwin B. Smith, for defendants. Elihu Rnot, U. S. Atty., for plaintiff. WHEELER, J. This was an action of debt, for the value of merchandise forfeited for entry by means of false and fraudulent practices and appliances under section 1 of chapter 76, Act 1863, (12 St. at Large, 737; Rev. St. § 2864.) The plaintiff recovered judgment in the district court at March term, 1873. On writ of error brought by the def,"ndants the judgment was affirmed in this court at April term, 187!). An execution against the bodies of the defendants has been issued out of this court for the damages, and costs of both courts. The defendants have moved to haye the judgment of this court made to be for costs in this court only, and to set aside the execution because it. runs against the bodies of the defendants. The judgment of this court appears to have been entirely correct. When the judgment of the district court was affirmed in this court, the judgment did not reo main in the district court as the judgment of that court, to be enforced by its process, but became the judgment of this conrt. Rev. St. § 636. If this were not so, and tlle form of entering tile judgment was clerically wrong, proceedings to correct the record should 1e taken before the justice who directed the entry. This part of the motion must be denied. Whether the execution could properly issue in such a case is to be determined by the la\\'s of the state. Rev. St. §§ 990, !H)1; Low v. DII1:/ee, 5 FED. REP. 266. The law of tbe state directly applicalJle is fonnd in the Code of Civil Procedure, § 54!). That section allo"s process to issue against the body in actions, (1) to recoyer a fine or penalty; " ,. ,. (4) in an action npon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability; and in no other cases claimed to be appli. ,.17,no.6-3:3