JONES V. UNITED STATEs.
JONES V. UNITED STATES.
Circuit Court, D. Oregon.
July 16, 1888.)
The word "claim." as used in the act of 1887, (24 St. 505.) giving this court jurisdiction to hear and determine certain claims against the United States, includes a claim by a purchaser or his assignee of timber land under the act of 1878, St. 89,) to have a patent issue for the same. (Syllabu8 by the, Oourt.)
COURTS-FEDERAL CrnCUIT-PU:aLIC LANDS-CLAIMS TO A, PATENT.
Action to Compel Issue of Patent. , W; Scott Beebe and James K.KeUy, for plaintiff. LewiS L. McArthur, for defendant.
DEADY, J, This suit is brought under the act of March 3, 1887, (24 St. 505,) entitled, "An act to provide for the bringing of suits against the government of the United States," to compel the issue of a patent to the S. E. t of section 30, in township 7 N., of range 3 W., of the Wallamet,meridian. It isaUeged in the petitionthllt the petitioner resides in Multnomah county, Or., and. that the land in question is situated in Columbia county, and is oia value not less than $1,000, nor more than $10,000; that prior to June 21, 1883, said land was surveyed and subject to entry and purchase under.the act of June 3, 1878, for the sale of tirhber lands in Ore'gonandotberPacificstates, (20 St. 89,) "and was not fit for agriculture, butwas chiefly valuable for the timber thereon;," that on said June 21st one John R.' Frierson, having complied with the requirements of said act, and the regulations concerning the acquisition of land thereunder; "so as to entitle himself to pay for the same, and claim.a patent therefor,from the United States, did on said day, at the United States landofficein Oregon City, Or., purchase said land from the defendant,and did then and ,there pay to the receiver of said land-office the price thereof, to-wit, the sum of $400, or $2.50 per acre; and that the receiver gave said Frierson" a certificate or receipt" for said. money as "being in full" for said land. That on, June 26, 1883, said Frierson, for a valuable consideration, sold, assigned, and transferred said certificate and receipt, and all his right, title, and interest therein and to said property, to the petitioner, and on the same day, in consideration of such sale, said Frierson executed and delivered to the petitioner a good and sufficient deed, with :warranty, of said land; that the defendant has kept and retained said $400, and its.servants, whose duty it is to execute and deliver the patent for said land, refuse to do so, and deny the right of the petitioner to .have the same, or to any interest in said land,whereby her title thereto is clouded, .and the full enjoyment of the property prevented. The prayer of the petition is that the court will decree thai a patent for said land issue to said Frierbon, and that all his interest and estate therein by virtue of said sale and patent inure to the petitioner, accordingf,Q;the conveyance to her by said Frierson. . v .no.8-36
Due service of the petition was made on the district attomey and the attorney general, as provided in section 6 of the act of 1887, and thereupon the district attorney appeared for the defendant, and demurred to ,." , the petition. Several causes of demurrer are stated, but they are all in effect a denial that the case or the claim of the petitioner is withiI). the purview of the act of 1887:; and on the argument of the same the point was made and relied on that theUclaim" against the United States, of which the act gives this court Ujurisdiction to hear and determine," is one for money only. And, first, the act of 1878 1) provides that the surveyed public lands in Oregon and other Pacific states, with certain exceptions, not necessary now to mention, Uvaluable chiefly for timber, but not fit for cultivation, * ,jl< * maybe sold, to citizens of the United States, ** * in quantities not exceeding 160 acres to any one person, * * * at the minimum price of $2.50 per acre;" that (section 2) any person siring to avail himself of the" provisions oithe act "shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the general land-office, designating by legal subdivisions the particular tract of land he desires to purchase," and setting forth therein the other· partieularsconcerning the character of, the and the purpose of the applicant in acquiring the same, necessary to bring the application within the statute, uwhich statement must be verified by the oath of the appliCllrit. II, Hsuch oath is false, the affiant is liable to punishment for perjury,"and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grantor conveyance which he may have made, except in the hands of a bona jide;purchaser; shall be null and void." The act fUrther provides (section 3) that notice of the application shall be given for 60 days, when, if no adverse olaim is filed, Utheapplicant $hall fumishto the register of the land-office satisfactory evidence l' of the publication of the notice, and the character and' condition of the land, when, onpayroent of Uthe purchase money," he "maybe permitted to enter" the same; "and on the transmission to the generalland-oflice of the papers and the testimony in the case, a patent shall issue thereon." But any person having a valid claim to any portion of such land" may object in writing to the issuance of a patent'l thereto, which objection shall be heard and "determined by the officers of the land"office, subject to appeal, as in other land cases. " An applicant for land under this act becomes the purchaser thereof when he makes the prescribed proof to the satisfaction of the register, and pays the price therefor. When the certificate of purchase is jssued to the applicant the land described therein becomes his property. The bare legal title is allthat remains in the vendor in trust for the vendee; and Hit was the case of a private person, a court of equity would compel him to perform his part of the contract, by executing and delivering to the vendee the proper conveyance thereof. If it is claimed that the certificate was fraudulently or illegally ob-
tained, the land department cannot arbitrarily,. or at ll.11, cancel the same or set it aside.. The certificate, and the right of the purchaser der, is property, of which he cannot be deprived without due process of law; law, by whomsoever pronounced, can have no such effect. Rethess must be had in the courts where such matters are propand where they may be heard and determined according erly to the law ofthe land-the law applicable to the rights and obligations of private persons under like circumstances. Smith v. Ewing, 11 Sawy. 56, 23 Fed. Rep. 741. On the facts stated in the complaint, Frierson was the lawful pur· chaser of the premises from the United States, and is entitled to a pat· ent'therefor, and the petitioner has succeeded to all his rights. This being llO, ooes the act of 1887, permittiJ;lg the United States to be sued in. this ,court on "all claims founded" ll.S therein specified, include this claim or case? The act provides (seQtion 1) that "the court of claims shall have jurisdiction to hear I;Ind determine * * * all claims founded on the constitution of the United States or any law of congress, except for pensions. or upon al)y reg\;llation of an executive department, or upon any contract, e;ll:presaeq or implied, with the goverIlment of the United States. or for daIl}ages,liquidated or unliquidated, incases not sounding in tort, in respect pf which claims the party would be entitled to redress against the Unite# States, either in a court of law, equity, or admiralty, if ,the United States were suable," with certain exceptions not material here to state.· The act (section 2) also gives the district and 'lircuit courts of the United States 'concurrent jurisdiction with the court of claims in all such cases; provided, in case of the former, "the amount of the claim" does not exceed $1,000, and in case of the latter exceeds that sum, and does not exceed $10,000. A suit act (section 6) is' commenced by a verified petition with the Clerk of the proper court in the district where the plaintiff rf'"sides. ,",The petition must set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought .to be recovered, and praying the court for a judgment or decree upon the factf:l and law;" and a copy of the petition must be serVtld on the district attorney, and another mailed to the attorney general of· the United States. . . . . This actshCluld'Jlot be strictly construed. It is both beneficent and remedial in its character. In the progress of society from barbarism to enforcement of rights, by the civilization; the redress of wrongs,and prescribed methods and measuresQf the law, is an important element, and, in the end, 3. prime result. Then the administration of justice not the only rncludes .redress against private persons, but against so<;:iety,-:"'the one tbemany. Then,. under some proper of the republio prudential restrah,lts l;lf:l to costs. an,d the like, every :who has a claim against the governnleot, instead. of being to to a; distant, ipdifferent,. overgrown,an<J
overburdened congress, or department, will be allowed to seek redress in the ordinary courts of the country in the district where he resides. The old superstition, born of the tribal and feudal systems, that regarded the right of the subject to call the chief or sovereign to answer, and do him right in a court of justiCle, as incompatible with the dignity of the ruler, has no proper place in either the form or idea of our government, and should not be allowed to come between the citizen and his right to redress against the same. See Mr. Justice MILLER in U. S. v. Lee, 106 U. S. 204, 1 Sup. Ct. Rep. 240. The organization of the court,Ofclaims at Washington, in 1885, (10 St. 612,) was a signal movement"in this'direction. By this act that court was given Jurisdiction to "hear nnddetermine all founded upon any law of congress, or upon any regulation of executive department, or liponany contract, express or implied, with the government of the United States." . . . '. " Thereafter, from time to time; jurisdictIOn was gi.ven the cOlirt over particu.lar cases; but the general jurisdiction remained unchanged, until the passage of the act of 1887, which materially enlarges it. The, establishment of a court of claims at Washington,although a long step in advance in the administration of justice between the United States and the people thereof, fell far short of what was necessary to that end. InBonner v; U. S., 9 Wall. 156, t4e supreme court held that the court of claims had no jurisdiction of a suit founded on equitable considerations merely. This i.s remedied by the act of 1887, which, in effect, authorized a suit t.o be maintained againstthe United States either at law, in equity, or admiralty. ' But the great advance in the act of 1887 is the provision allowing the person entitled to sue thereunder, in case his claim does not exceed $10,000 'in value, to bring his suit in the national court for the disti'ict in which he resides. In a60untry covering so large an area as the trnited States, in the great majority of cases it amounts to a denial of justice to require a suitor to bring his6uit in a court so fat removed from his tesidence and sources as the capital of the nation. In the court of his locality he ciui conduct his case with much less expense, with the advice and aid of attorneys of the vicinage, whom he knows and trusts, and who appreciate him and his cause, and in a. tribunal. imbued with the local knowledge; often so essential to a correct understanding and det'ermination Ma'legal .' . . 'controversy. , Considering, for these reasons, that the act conferring jurisdiction on th1s court.to hear and determine "all claims * * * founded on any pontract *'. *. * with the government of the United States," is a. :lligblY remed,ial and beneficent one in its general purpose and scope, I proceed to, consider whether it includes such a Hclaim", or cause of suit against the United States as the petitiOller is shown to have. '.. . <. On' behalf of the defendant it is insisted that the word "dahn," as used in this act, means 'a money demandandno'othetj-'-'-'a' tJbi,lm 611
JONES t1. UNITED STATES.
which a judgment or decree can be given for money, or damages payable in money. It may be admitted that the term is more often used in this sense than any other, simply because the great majority of claims which arise out of the intercourse and business of the country are in fact pecuniary ones. But the general and natural sense of the term is not thus limited. Gray v. Palmer, 9 Cal. 636. One may have a "claim" upon or against another for a chattel or land, as· well as money or .damages. The act of 1878, in providing for the sale of timber land, uses the expressions, , ., "valid. chlims ," "nature of his claim" "bona fide claim" and "adverse claim," as signifying an interest in or right to such land. In Stowel v. Zouch, Plow. 359, a "claim" is defined as "a challenge by a man of the propriety or ownership oia thing which he has notin session; but which is wrongfully detained from him." And this defini. tion is adopted by Bouvier. Verbum, "Claim." ,TnPrigg v. Pennsylvania, 16P.et. 615, the term is defined thus: "It is,iri ajustahd judicial sense,a demand of llome matter, as of right,·. to do some act brthing' made by one person on another, to do or as a matterofdtity." ... .Worcester defines as fQIIows: "A demand as of right; a challenge of .ownership, to lay claim to anything." In none of these definitions is the meaning ofthe word limited to mere money demands. And any of them is broad enough to include any de,mand or right which may be the subject of legal or equitable cognizance in a court of justice. As was said by the supreme court inPriggv. Pennsylvania, supra, it includes a demand made ofright by one person on another to do Some act as a matter of duty. And that is this case ex;Reily. The petitioner, as a, matter of right, demands that the defend.ant, aSda matter of duty or legal obligation, comply with its contract under the law under which this land was sold to her assignor, Frierson, and issue a patent for the same. This is her claim against the United States. It arises on a contract with the governmentthereof,...,.,.the contract of sale of June 21,1883; and in its nature, is enforceable by a suit in equity in this court for a specific 'performance of the same. And this brings the petiiione! within the act ·of 1887, which gives her the right to sue the United States on any claim :arising on contract, by asqit in equity, as "if the United States were suable,"-·whichmust nienn, as if the United States was a private perSOIL.. .. ,..... . . . .
But section 5 of the act shows affirmatively that the right of action or ;suit given by itds. not confined to money claims "any other thing clain'led." ··While I am not prepared to s.ay that a: cl:um a:\: right to have a patent issue to a tract of land, is a claim or right to a "thing," because the Silllleis.not in esse, but onlyinposse, yet the TIseof .plainly sh()ws not under.gtand that it was legislating about claims for money only j and thataparty having a claim founded upon any law of congress or contract with, the ;governmentof thfJ,United' States to·a-chattel <;Y:litnd in the posseSs1onof
the governm.ept, thereof, is within.. statute. In '0.. S. v. Wilcox, 4 Blatchf. 385, it was held in a criminal action that the word "claim," as used in the act of.March 3,1823, (3 St. 771,)makiQgita crime to transmit any forged writing to any officer of the government in support of "any account or claim" with intent to defraud the UnitEld States, includes a claim for bounty land. In Minick v. (Jity oj Troy, .83 N. Y. 514, the term, as in the charter of the city of Troy, which provided that no action shollid be brought against the city for an injury to person or property, unless the "claim" on which the8uit is brought was first presented to the comptroller for audit, was held to be the equivalent of the phrase, "cause of action." . In my judgment, any person who has a claim against the United States founded on a contract with the government thereof, on which an action at law or suit in equity or a4ruiralty might be maintained against a private person, is within the purview of the statute, and may proceed thereunder for the relief to which he is entitled, be it money, damages, possession of chattels or land, or a specific performance of a contract in relation thereto. This, so far as I know, is the first case under this statute, and as it is that there are a number of like cases in this district, it is desirable that the construction of the statute should bp settled by the supreme cQurt,atan early day. . , It is not likely that patents are withheld by the land department in tbesecases without some cause which is though sufficient to overcome the apparent right of the purchaser. aut the right of the purchaser cannot bEl disposed of in this one-sided, arbitrary way. If the United States will not bring a sqitto cancel and set aside the sale to the petitioner's assignor, on the alleged invalidity,thereof, it may in this suit by the petitioner for the patent set up the same as a defense thereto, and have question lawfully decided. The demurrer to the petition is overruled.
POTTS t1. ACCIDENT
OF NORTH AMERICA.
(Oirouit 001trt. No D. N6tJJ York.
July 18, 1888.) Ac-
COURTS-FEDERAL-FoLLOWING STATE PRACTICE-DISTINCTION BETWEEN TIONS AT LAW AND IN EQUITY·.
An action removed to and tried in tbe United States circuit court in a stat& wberelnthe distinctions between aCtions at lliw and 8uits in equity are tl> some extent obliterated. must be governed by the practice ofthe trial court, at law founded on fraudulent misrepresentations. insufficient ,to rl'c()veronat ll\w,.but fpr .equitywould grant relief upon , a complaint properly framed, mu'st be determined by the principles of the common law, although in thecourtil of the state he might have had relief In. laid
or motion for new trial.
FIDELITY SA.FE DlllPOSIT " 'l'ROSTOO. V. ABM:S'l'BOlilG.
D. O'Brien. for N. O. Moak, for defendant.
WALLACE, J. It is undoubtedly true that courts of equity act upon misrepresentations of fact, and sometimes of law, as a ground for annulling contracts, when courts of law would treat the misrepresentation as innoxious. In other words, as stated by Mr. Pomeroy, (2 Pom. Eq. Jur. § 885:) "Whatever would be fraudulent at law will be in equity. But the equitable doctrine goes further, and includes instances of fraudUlent misrepresentation which do not exist in the law." But the plaintiff cannot invoke this doctrine in the case, because the action in which he seeks to avail himself of the misrepresentations of the defendant to avoid the effect of his release is at law, and not in equity If the suit had been tried in the state court, where the distinctions between legal and equitable actions are in some respects obliterated, instead of in this court,where it came by removal, it might perhaps have been treated as an action in equity; but in this court the complaint, as framed, does not present a case of eqUitable cognizance, (Buw.rd V. Houston, 119 U. S. 347, 7 Sup.· Ct. Rep. 249,) and, having been tried as a case at law, must be determined by the rules of the common law, and not by the principles of equity. Monttrjov. Owen, 14 Bl-atchf.· 324; Manufactwring Co. v· Tube- Works 00., 15 Blatchf. 432. The application for a reargument ofthe motion for a new trial is denied.
(Oircuit Oourt. S. D. Ohio. May 11,1888.)
.L.urDLORD AN]) TENANT-LEASES-NATIONAL BANKS"7lNsOLvENCY.
Where a national bank takes a lease for a long term. its insolvency and dis· solution soon afterwards, and the appointment of a receiver. who refuses to take possession of the leased premises, .do not entitle the lessor to damaKes out· of the assets, the rent having been paid fot the time during which the bank was in possession.
In Equity. Bill by the Fidelity Safe Deposit & Trust Company against Armstrong, receiver of the Fidelity National Bank of Cincinnati, to re<lOver upon a lease. . Dra'lUtin Wulsin, for complainllnt. O. W. Kiitredge and W. B. Burnett, for respondent. SAGE, J., (orally.) The bi1lsets forth, in substance. that on the 1st (If March, 1886. the complainant made a contract which, although not 'stated in the· bill to be, in terms, was, in effect, a lease of the premises occupied by the Fidelity National Bank, in the St. Paul building; Fourth .street, Cincinnati, for 20 years, at an annual rental of $5,600, pa.ya.ble