REPORTER, vol. 40.
crew as regarded wages earned before the collision. He cited with approval the case of The Ohimera, decided by himself in November, 1852, (Shipping and Mercantile Gazette ,of November 27, 1852;) The Linda Florj and the case of The Dtvna, deoided in the Irish Admiralty Court, in October, 1861, (1 Mar. Law Cas. 159, and 5 Law T. N. S. 217.) In.the court of appeal, in May, 1883, in The Elin, L. R. 8 Prob. Div. 129,bp,fore BRETT, Master of the Rolls, and Lords Justices COTTON and BOWEN, the decision of Sir ROBERT PHILLIMORE in the same case was affirmed. That court approved the decisions in The Benar88. The Ohimera, The Linda Flor, and The Duna. BRETT, M.R., stated ,that it would be unjust to the owner of the injured ship to allow the fund against which the lien for damage had priority to be diminished by a payment of wages. COTTON,L. J., said that it was ajust principle that the owner who had caused the damage should DOt be at liberty to withdraw anypart of the fund arising from. the value of his ship and freight out of the reach of the claimant for damages. In Macl. Shipp. (2d Ed.) 653" it is said that liens in damage causes "rank against ship and freight, in derogation of any rights of ownership or rights by mortgage or beneficial lien existing at the time of the collision;" and that "they acquire thereby priority over mortgages, prior bottomry, wages, pilotage, towage, aQd salvage;" referring to The Benar88t (above cited.) . In NortO'idt 00. v. Wright, 18 Wall. 104, 122, the supreme court, speaking by Mr. Justice BRADI,:gy, said: "Liens for reparation for wrong , done are superior to any prior liens for money borrowed, wages, pilotage, etc." The reasons assigned by Judge BENEDICT in the present case, for co.ming to the conclusion at which he arrived, seem to me to be more sound than the opposite views, and ll, decree must be entered to the same effect as that made by the district cOllrt,&warding priority to the libelants in respect of their claim for damages. .
NUSSBAUM 'D. NORTHERN INS. 00.
t1. NORTHERN INS.
Co. et oJ.
(Of,rcuU OO'lllrt, S.D. Georgia, W. D. November 5, 1889.)
ll'JiDERAL CoURTS-FoLLOWING STATE PRACTICE.
The federal court will allow plaintiff, before verdict, in an action removed from a state court in Georgia. to discontinue his suit as to part of the amount sued on, which he could do before removal under Code Ga. § 8479, authorizing amendments at any of the cause as matter of right.
At Law.· Suit on insurance policies, and motion to discontinue as to part of the sum sued for. &- Harris and Bacon Rutherford, for plaintiffs. R. F. Lyoo and D. P. Guerry, for defendants.
SPEER, J. In this cause several cases have been tried under a consent order directing that they be tried together, but that each case shall preserve its integrity as such, and that the parties shall have the privilege of insisting upon any and all legal rights which might have obtained had the cases been tried separately. Before verdicts were taken on each declaration, also provided for by the order, the plaintiffoffered in open court formally to discontinue his suit upon one of the policies to the amount of some $700. This motion was resisted upon the ground that it would deprive the defendants of their right to have the case reviewed by the supreme court of the United States. These causes were all removed from the state court; and it would seem clear that under the practice act the rule in the state courts must control the decision of the question. The Code of Gllorgia (section 3479) provides: "All parties. whether plaintiffs or defendants, in the superior or other
courts. (except the supreme court,) whether at law or in eqUity, may at any stage of the cause, as matter of right. amend their pleadings in all respects, whether in matter of form or of substance, prOVided there is enough in the pleadings to amend by."
It appears, therefore, that the court has no discretion in the premises. The plaintiff may, at any time before verdict is taken, dismiss or discontinue his case, in whole or in part, and the court has no control of the matter. After verdict it is otherwise. It is then a matter in the legal discretion of the court. Opelika City v. Daniel, 109 U. S. 108, 3 Sup. Ct. Rep. 70; Thompson v. Butler, 95 U. S. 694. In the case of Insurance Co. v. Nwhols, 109 U. S. 232, 3 Sup. Ct. Rep. 120, this question depended on a statute 9f the state of Texas which authorized the plaintiff to rE:mit a part of the verdict or judgment. The supreme court sustained the exercise of discretion of the oircuit court, whereby the plaintiff was permitted, on motion in open court. to remit a part of the verdict and judgment rendered in his favor. In the Telegraph. Cable Chu, 128 U. S. 394, 9 Sup. Ct. Rep. 112, the same question was in'volved, ",nd wllsdecided the same way. In the case of Bank v.Redick, 110 U. S. 224, 3 Sup. Ct. Rep. 640, the circuit court, after verdict, permitted the plaintiff to remit all of the verdict in excess of 85,000; v.40F.no.7-22
and the supreme court, Chief Justice WAITE delivering the opinion, affirmed the of and dismissed the writ of error. In all these cases there could have bElen no other motive save that of avoiding the writ of error, and the delay, and expenfie of the years ,of pendency of the litigation upon the overcrowded dockets of the cQurt of the UnitedS,tates, which has thus sanctioned the practice., Of, course, the. presumption is, that these cases' of the several plaintiffs were meritorious, discretion of the court was not abused. In this state, howevei,before the verdict,where there is no ,set-off or crosEl:c1aim it is a in the control of the plaintiff. If he chooses to surrender a portion of his demand, by a formillamendment, to obtain a legal it is competent for, him to do so. It would seem, tllerefore, that thl;) plaintiff is updernQ legal or moral obligation to further the efforts' of his adversary; which might result in, and, delay: of p,,"ymE;Jnt, and of the settlement of the )itigati6n., 'If,' it werell.piatter simply fodhe djscretion ofthe court; under' 'all the cIrcumstances which have surrounded., the motion, which }urther 'to at this time; the discretion 'would 'be. exercised in behalf ofthemotion. Buttheleave to make the' amendmerit is granted ,n pon tbe application of the plaintiff, as a Diatterofright the Georgiastatptes. ' , , ' ,
..r . ., ' ". ,. .'
'.i ". ..' . ; .
McCABE If'·· ,MATHEWS.'
(C""'cuit qaurt, N. D, Ji'Zorfila. Aprlll$, 1889.'
, 'The unexpl$ined delay,for eiglit'yearB, in enforcing iLn'agreement tor a deed, ·. , 'WhiQll by its' tetlns was to be perfol"medwithin three'month&, oonstittlte88uch laches as will prevent a decree for speoific performanoe., " I. '" .'",,' · :" ··The delay appearing on' the fllce of the'bill; advantage' taken by deln1ll'rer.
In Equity.' Bill.for specifiaperformance of oontract' for sale of land. ,On demurrers; to' ,bill. ,H. BiBbee &: Son, for defendant. " TOULMIN;:'J.,(o"ally.),' It is well settled that, where there is great unit will ·explained ·delay on the part of any of the parties to an constitute an llioo,'ndonment of the' same;' atidwill a:inbtint to such laches as w:ill barr a"courtor equity from: decreeing spedifie perform'anee. In other ;words.: courts of equity will 'not 'aid in enforcing stale demands ,where the party ,has been guilty' of negligence, 8.nd'hasslept upon his rights. ;' The o9ntract, the specifio performance of Wihichis here sought, by'Uaterms, ,was made on'"the '10th of Fe'bruary,11880,and the
, ,; ". . by
,: ' : '
J.. !3;lUlli1ton, Esq., of the Mobile ,bar. '
. ;. - .'< ,"!
CASE· iUNuF'a dO. fl. SMITH.
tobe:performed within three months from its date. Yet the complainant slept upon his rights until iIi February, 1888, when, as the bill alleges, he came to Florida to assert and maintain them. Eight years elapsed from the making of the contract before he asserted and endeavored to maintain his rights under it; and nine. years elapsed before his bill for specific performance was filed. His unexplained delay amounts to laches. Pratt v. Carroll,8 Cranch, 471; Fry, Spec. Perf. § 715; Holtv. Rogers, 8 Pet. 420. The unreasonable delay appearing from the allegations of the bill, and no valid legal excuse or sufficient explanation being shown, my opinion is that there is no equity in the bill,and that the demurrer to it should be sustainedj and it is so ordered. .
SHITH et til.
(C'i'l'cmt Ooo'l't, M. D. Tennessee. . April, 1889.)
Holders of a vendor's lien and a mortg-age on certain premises are not neoessary or indispensable parties to a s\lit to enforce a mechanic'. lien against property on the premlseB% where complainant does not seek priority over such liens, as they cannot: beprejuaiced by the suit. SUm-WAIVER. Retention bya seller of tltle to machinery' placed on land until the price is paid, with a:resetvation of the right, in case of default in· payment, to take possession of anihrelllove such machinery without process, is not a waiver of the lien given by Code 'renn. § 2739, on any lot of ground for the price of machine17 furnished or erected thereon. . ... , .
In Equity. On demurrer to bill· . 0. R. Head and MO'I'T'i8 OcAnderson, for complainant. VertTeeBOc VertreeB, for defendants. The bill in this case seeks to have declared and enforced lien on and against certain mill property in Gallatin, Tenn., .for the purpose of compelling payment for certain mill machinery and improvements made arid placed upon said property b)' complainant under specia.l contract with the defelldants, or the owners thereof. After setting out the contract under which the machinery was furnished and the improvements made, the bill states that complainant retained the title . to the machinery until the same was fully paid for, and reserved the right,iJithe event defendants made default in payment, to take possessian of and remove the same without legal process. It waa further stated that certain parties had avendol"'s lien on the property or inilllot to secure the balance of purchase money due thereon, and another party held a mortgage upon the premises. The persons holding said vendor's lien:andmortgageare not made parties to the8uit.'Phe defendants demur to the bill,alleging, as grounds of demurrer, that complainant has' 8 plain,adequate, and complete remedy· at 1awj: that any mechanic's lien
which.it might have had upon the described premises was waived by 1'& taining the title to the machinery furnished; and that the persons ing and holding the express vendor's lien upon the property, 'to§Bther with the holder of the mortgage thereon, were necessary parties to the suit. It is not alleged in the bill that complainant gave any notice to the holders of the vendor's lien and mortgage, as provided by law, (sections 2742, 2743, Mill. & V. Code,) so as to assert any priority of right over said liens, nor does the bill claim any lien or right priOI:' to said vendor's and mortgagee'sliens. The holders of these liens might have been made parties to the suit. They would not have been improper parties, but they are not necessary or indispensable parties. Whatever rights complainant may be able to assert and enforce against the particular premises will be in subordination to their liens. Complainant, under the present -form and scope of its bill, can only subject the interests which defendants have in and tothe property, without prejudice to the rights of those holding the vendor'l!i and mortgagee's liens. . The last ground ofdemurrer cannot, therefore, be sustained. The relief sought by complainant does not involve the rights of the absent lien claimants. The material question raised by the first and second grounds of the demurrer is this: Did the retention of title to the machinery until the same was fully paid for, with the right reserved, in case of default in paylnent on the part of defendants, to take possession and remove said machinery without legal process, operate as a waiver of the statutory lien given in such cases? The statutory lien is given upon any lot -of ground or tract of land upon which a house has been constructed, or fixtures or machinery have been furnished or erected, or improvements made by special contract with the owners of the premises, in favor of the mechanic, undertaker, founder, or machinist who does the work or furnishes the material, or puts thereon fixtures, machinery, or material of either wood or metal. Code Tenn. § 2739. The case made by the bill 'comes within the letter of the statute, and clearly confers upon complainant a lien upon the premises, so far as defendants' ri/!;ht, title, and interesttherein is concerned, which maybe enforced in a court of equity, if the retention of title to the machinery until paid fordoes not have the effect and operation of waiving such statutory lien. The retention of .title till payment was made· for the lDll.Chinery was in no way inconsistent with the statutory lien given upon the 10t of ground or tract of land. The purpose of the stipUlation was to secure the payment of the purchase money to be paid for the machinery. The retention of title was in the :nature (jf a specific lienupon the identical machinery furnished. It was not inconsistent with the lien given by the statute upon the premises on which the machinery was placed or erected. Nor does it, as a matter of law, show anj intention of waiving the latter lien. Retaining title as a means of securing payment on the part of defendants did not impose ; upon complainant any duty or obligation to assert such titlepy resuming possession of the machinery. Complainant could still look to de-
SHEPARD 11. NORTHWESTERN LIFE INS. CO.
fendants personally for the payment of the purchase price of the machinery, and to any and all other remedies conferred by law to enforce its payment. Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that in thus retaining title to the machinery complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed. In Railroad 00. v. RoUing-Mill 00·· 109 U. S. 719, 720, 3 Sup. Ct. Rep. 594, it was held, where the contract of sale stipulated and provided for an express lien upon the rails furnished, that there was no waiver of the statutory lien given under and by the laws of Illinois, which contain substantially the same provisions upon the subject of mechanics' liens as the Tennessee statute. But; Without looking to outside authorities. the Tennessee decisions do not, as we think. support the proposition contended for by the demurrants. It is clearly intimated, if not settled, by the cases of Anthony v. Smith, 9 Humph. 508, and Fogg v. Rogers, 2 Cold. 290, that this doctrine of waiver by taking security does not apply where the vendor legal title,'or, what i!l the Ilame thing in effect, expressly reserves orereates an express lien on the property sold. The bill in the present case , having been filed within the time prescribed by the statute, apdthe averments thereof not diSclosing any waiver, as matter of law, of the statutory lien given complainant, we think the first and second grounds of demurrer are not well taken, and should be disallowed. It is accordingly ordered and adjudged that defendants' said demurrer. to the same is hereby overruled and disallowed, at defendants' costs, and defendants are allowed 30 days within which to answer the bill.
SlIEPAlm et al· .".
LIFE INS. Co. et ale
(Cwcuit CO'Wt; E. D. M1.cM.gan. September S, 1889.)
Where an Indian treaty proVided that it shoUld be obligatory as soon as the sa"'1e should be ratified by the president and senate, held, that it did not take effect un· til signed by the president, although it had been preViously ratified by the senate, and accepted bv the Indians.
TREATIES-TIME OF TJ.KING EFFECT.
PvBLIC LANDs-RAILROAD GRANTS-WHEN OPERATIVE.
While the act of June 8, is.'i6. granting certain publio lands to the state of Miohipn for railroad purposes, was intended as a present grant of the lands included in Its terms, DO further conveyance by the government being contemplated, yet the grant did not become operative or divest the title of the United States to any particular lands until they had been earned by the building of a certain number of miles of road. and selected by the railroad company. Such act, however, did not attach to lands which, at the date of the act, had been reserved to the United States. Where the title of the Indiana.and their right of occupation of certain lands had been fully extinguished, it was held. that they passed under this act, notwithstand· ing that they were held by the United States in trust to sell them for the benellt of the Indians. , But, even if these lands did not pass under the act, it was held that the ant. who had taken possession and claimed title under the same act, was estopped to set up. this. fact. The doctrine of common source is applicable.
SAME-TITLB OF INDIANS.
40.' '.. :;,;
i .'. .
,'D"fendaJ;ltsiil thi, case claimed. lit deed from A,m;bOY, Ll)nstng & Railroad grantee of the'land under tbe of , !COngress; .Plaintiff .claimed under a ,deed·from the J ackeOD, Lansing' & .Sagmaw, 'whichhad, to the. rights of !ilie Amboy Company, upon. its failure to perform theconaitulns of the 'grant. '(1) that the AIhboyCompany bad never .earned .the landi in question, and.:that.it6deed to defendalJta Wl\61noperative to pass the that congress. by an act of ,JUly 8, 1866, had elected forfeit the rigbt of the Amboy Company to the lands tHenuD'Elarned, upon its failure to perform certain.conditions, and, upon suoh.failure, had, authorized the state legislature to confer the,gr!l:ntupon sl!me other oorporatio.; (8) that the Aznboy 00D;lpanY failed to perform such oonjlitlons,and the legislature thereupon conferred Its grant upon the JacksonComilany, under an arrangelil1ent to thate1fect. between the two companies; (4) that,even if no forfeiture wa6.intended, the actlil of the legislature and of the two companies operated as asu'rrender by the Amboy Company of its rights, and the invbtiture of such rights in the J"acksonCotnpany; '(5) tbatthe J ackson Company wall not the mere,assig!le.eof the Amboy Company, all-d did not take the unearnoo lands subject to its conveyances; and hence that patents of these lands,subsequentiyissued to luch Qompany.did not inure to the benefit of the grant.ees of th" Company. .
(SyZlabus b'II t1/.e 00071.)
At Law. This was 811 action or ejectment to recover the S. W., I tJf section 9, , township14 range 5 E. At the' time the suit was begun, the land was in the posSession of the defendant Clark, under a lease from his codefendant, the Northwestern Life Insurance Company. Plaintiffs title under an aet'of congress approved JUne 3, 1856, of Michigan to.aid in the granting structioll of certain railroads. :H St. at Large, 21. ' These lands were patented to the Jackson, Lansing & Saginaw Railroad Companty,''(which, for convenience, will be called the "Jackson Company,") as successors of the Amboy, & Traverse Bay Railroad Company, (which will be called the" Amboy Company,") and passed by deed of the prior company to plaintiffs, May 5, 1869. Defenqant claimed under the act,. ·and und,er, a deed from the Amboy Company to Maxwell, Campbell, and Van Etten, dated November 28, 1855,; a deed from Campbell' and VanEtten to' Maxwell, dated t.o the,1ITorthwestern Life August 5, 1868; and subsequent, .JusuranceCompany"the main defendant in this case., ':Upon the trialoHhis case at term, at Bay City, a jury was 'impaneled to try the only question of fact involved,viz., whether debeen in. the undisputed'posses!3ion of, the. property for 15 the commencement <ifthesuit. To 'this question the jury responded in the negative. The case was thereupon, by consent of counsel,taken from ,jury, and submitted. t9 the court, to be tried as a ques,tion' of law .upon the undisputed testimtmy. . /'The facts of' the case are substtiritia11y as follows: "By ,a, treaty with the ChippewaIndians, signed September 24, 1819, (7 St. latLarge, 203,) for the use bi''' tqese Indians 40,000 acres .of land out of a large quan'tity ceded to the United States, and it was admitted that the land jn Q1l6sti()n lay within r:rhis tract, ,which by the treaty wasUto be hereafter located" on the westside of the Saginaw river, was actually located and surveyed in the follbWingyear. By
Jl. subsequent treaty, made in 1837, (7 St. at Large, 528,) this tract was
ceded to the United States; the latter agreeing to pay the Indians, in consideration of such cessioll, "the net p,oceoosofthe sales thereof, after the expense of survey and. sale, together with the incidental expenses of this treaty." By a subsequent treaty, negotiated August 2, 1855, but not signed by the president until June 21,1856, (11 St. at Large,6S1,) the Chippewas ceded to the United States absolutely "all the lands within the state of Michigan heretofore owned by them as resand whether held for them in, trust by the United States or 9therwise;" releasing and discharging the United States "from allliability to them" "for the priQe and value of all such lands the proceeds of which remain unpaid." . By an act of congress approved June 3, 1856, (11 St. at Large, 21,) after the treaty andits amendments had by the Indians, but before it had been signed by the president, certain lands were granted to the state of Michigan to aid in the constructi()D of certain railroads from and to certain points therein specified,and,among others, froID Amboy, by HHlsdale and Lansing, to some pQjnt} on or. near Traverse bay. The grant coverjl<;! "every aJternate.sectiop ,of land designated by oddnumberll, for six se()tions in width oneach side of each of saidroa.ds; ·but incQ.seit shall appear that the United States have, when the lines or routes ,of said roads are definitely fixed, sold any section, .pr any .part thereof, ,granted as· I}foresaid, or that the. right ot pre-emption;has flt,tached to the same,"'itwas provided other lands should be "elected near.esttQ tbe tiers of seqti()ns above specified be equaUo such as had been sold or appropriated: provided, "that: the, lands hereby granted Shall be exclusively applied in the construction of; that road for and on account of which such lands are hereby gran,ted, a.nd shall be disposed of only as the. work and the same shall be applied to no other ;p:u:rpose whlltsoe,ver; ll-nd' further, that any and all lands here...tafore reserved to the United;States by any act of orin any other by competentaqthority, for of aidinginanyopje<jlt forany:pther purpose whatsoever, he and .ofinterna.! the I!f.ttl).e are hereby reserved.totha Unitep from the operations of The·th,ird that "the ,said ,gl'anted.to the said state Iilhall be subjflct tQ t4e disposal of the ture thereof for and no otherj" and the .fourth, herebygrant.ed to said state sha,ll be disposed of by.said . ;stateonly.in the ID/:10l)er 6., that a quantity of land, notE1:lCceading sections for of rQads, and included .within a,. conJ;<¥l.4s, may be sold; and :,tinuous length of:twenty miles of ea<:h of ,whel1the governorpfsl,lidstate ,shall certify to the secretary ,of the .intemiles ,of allY said road, .is cornpleted,)hen an. riorthatan)' 20 ,other; quantity. of land bereby granted, not to ex('.eed 120. for i ·each of roadshaving 20. continuous as·l!-foresaid, a.ud: iJlcluded withina con.tinuous )(lngth of 20 miles of eacQ. of saiclrolJ,ds, sold; and so" till\e .· ,:"w·til.,said DP"f9J;t4Fl
sales shall be made, and the lands unsold shall revert to the United States." On the 14th of February, 1857, the legislature passed an act which, referring to the grant by congress, declated that so much of the lands, rights, powers,and privileges as were, or may be, granted and conferred in pursuance thereof, to aid in the construction of a railroad from Amboy, byway of Lansing, to some point on or near Traverse bay, "are hereby disposed of, granted to, conferred upon, and vested in the Amboy, Lansing & Traverse Bay Company." The act provided for the formal acceptance of the grant by the company, and that it should be -the duty of the company, on or before the -1st day of December then next, to locate the line of its-railroad, and make complete maps of the line,and to file copies io the office of the governor and secretary of state, and the governor was required to transmit a duplicate to the landoffice at Washington. . The se\'enth section of the act provided that the company, after the completion of 20 continuous miles of its ,road, and after the governor should have certified to the secretary of the interior that such 20 continuous miles ofits road were completed, then, and not before, might seli60 sections of land incluued: within any continuous 20 miles of the line of its road; and in like manner, upon the completion of each other 20 continuous miles, it might sell other 60 sections; and so on, from time to time, until the whole of its road was completed. The company was required to complete the road between Hillsdale and the point of intetsection with the Detroit & Milwaukee Railroad on or before the 1st. of Nove:mber, 1859, and at least 20 continuous miles of the road every entire road was completed; the whole to be finished by'the 1st day of November, 1865. The company made acceptance'in writing, November 3, 1857. It also prepared maps, located its. road, and proceeded to construct a portion thereof. By the maps and location of the road, a large quantity of lands was brought within theprovisions ofilie grant. The lands inquestion are located less than six miles from -the line of road. The commissioner of the general landoffice, at Washington, withdrew from sale -large tracts of land in Michigao, covering the lands in question, by an order dated June 13, and afterwards, from time to time, made lists of the lands which wereconceived to be to the grant,and which were approved by thesecretary of the interior. These lists were filed in the land-office at LansinK. The Amboy Company commenced the construction of its road from Owosso in the direction of Lansing, and constructed in all, from first to last, Some 27 miles of road, extending from Owosso to Michigan avenue,in the city of Lansing, but never constructed any part of its. road north of Owosso. By an act of the legislature of February 14, 1859, the quantity of land that might be sold on the completion of 2Q. continuous miles of road was increased to 120 sections. On December 20, 1860, the governer certified to the oompletion of 20 miles of road. By an act of 1861 (Sess. Laws, p. 150) it was provided that the company should not be entitled to the second 120 sections until it should
SHEPARD". NORTHWESTERN LIFE INS. 00.
have constructed the road, and opened it,for use, from Owosso to Michigan avenue, in Lansing. On the 19th day of March, 1863, another act was passed, waivinp; all forfeitures, but requiring the company, within six months from the passage thereof, to finish and open their road for use to Michigan avenue, in the city of Lansing, and also, by the 1st day of June then next, to commence work in good faith on the road from Owosso to Saginaw city, and by the 1st day of January, 1865, to complete that portion thereof. There was a further proviso that the company should not "be entitled to that portion of the second 120 sections of land, not already conveyed by them," until the road should be completed and 9penedfor use to Michigan avenue, in the city of Lansing. On the 17th of September, 1863, the governor certified to the secretary of the interior that the road was constructed and opened for use to Michigan avenue, in the city of Lansing, stating therein that he did so "in order that it may appear that the said railway company now has title to the second 120 sections of lands so granted by said act of congress and referred to in said act of the legislature of the state of Michigan, approved March 19. 1863." Under the operation of these two certificates, the Amboy Company became entitled to 240 sections. The com pany prepareq lists of the land to which it was thus entitled, and submitted them to the board of control of railroads, and they were approved by that board, and filed in the land-office at Lansing. These lists bear. date September 3 and 4, 1861, and were executed by the officers of the railroad company, declaring the purpose and intention of the company to take these descriptions of land for and on account of the lands to which they were entitled. The Amboy Company also proceeded to sell the lands described in the lists by three deeds: (1) A deed from the Amboy Company to Henry Day, dated November 9,1861, covering 87,693.13 acres. (2) A truet-deed or mortgage to Chapman and Williams, dated November 9, 1861, covering' 65,275.74 acres, to secure a large amount of bonds. (3) A deed to Halmer H. Emmons of about 80 acres, dated November 12, 1861. Neither of the lists or deeds above mentioned embraced the lands in question in this suit, but they more than exhausted the total number of acres contained in the 240 sections to which the road was entitled. By an act of the legislature of March 18, 1865, it was provided that it should be lawful for the Jackson Company, or any other company, to enter into an arrangement with the Amboy Company, jor the location of it,sline of road from Lansing, by way of Owosso, to Saginaw, upon the Hne of the said Amboy road, and for the construction of the same on such line; and, in case of such agreement and location, then, upon the filing in the office of the secretary of state of a copy of the agreement between the companies, duly certified, said Jackson or other company should become entitled tp receive, take, hold, sell, and dispose of the Jands granted by congress to aid in the of said line of road,
as'the saJd Amboy'Company'might have done under existing laws if such road from Owc>sso to Saginaw hltd been constructed by it; and the right of said Amboy road to such lands,:so far as the portion of its road from Owosso to Saginaw is concerned, should cease upon the filing of said copy of agreement in the office of the secretaryof state. Underthe second sectic>n, full authority was conferred upon the Jackson Company to purchase, atprivate,public, or judicial sale, the railroad and property of the Amboy Company. On the 28th November, 1865, the Amboy' Company executeda,deedto Maxwell,Campbell, and Van Etten purporting to convey a considerable' 'qliantity of lands, embracing the descriptiorfin question in tuis suit. The deed recited the legislation al. ready referred to, including that of 1868; the construction of the road from Owossc> to. Lansing; the giving ofIthe two certificates by the gov. error; thefaet that the lands therein described were a portion of those ineludedin the grant aforesaid, 'ana selected between said 'township 6 N; and'S/lid township 18 N. The quantity covered by this conveyance was about 7,000 acres, I:!quivalent to about 11 sections. The next item of is an act of congress of July 3, 1866, (14 St. at Large, 78,) which extended thetime seven years for the Amboy and again authorized the legislature to Company 'to complete confer the grant on some other than the Amboy Company, unless(1) It clear,grub, and grade 20 miles of road-bed between Owosso and Saginaw by the 1st day of February', 1867; and (2) Fully complete said 20 miles by the 1st day of November, 1867; ' (3) Fully completes 20 miles a year'thereafter, and fully completes the entire road' by the time limited' in'thepact. In October. 1866, an agreement was entered into between the Amboy Company and the Jack· son Company by which it 'Was agroodon both sides that the beneficial interest in the land grant was transferred to the Jackson Company. By this agreement the.lackson road wastolocate its line from Lansing, by the way of Owosso, to Bangor, upon'the line of the Amboy road, and was to construct its road, thereon, and to complete it, in the time and manner prescribed by theaet of 1866; in consideration of which, the Amboy roa!! bargained and sold to the Jackson road all its right, title, and interest to its line north of Owosso, together with all its interest in and to so much of the land grant as pertained to that part of the boy road lying north of Owosso, and.in and to all lands which were applicable t9aid in theoonstl.'uction of such line north of Owosso, "or (Which maybe in any way acquired, taken, or sold on the completion of 'Said road; it being understood and agreed that the Jackson Company shall take possession of the line, and constrnct its road thereon, and hold and dispose of thie lll.ndgrantin the same manner, in like quantity ,and on the same terms conditions as if the grant had been expressly conferred on it"by'sllid acts;" On January 4, 1866, the Jackson Company had acquired the rondof "the Amboy Company from Lansing to Owosso by a deed executed np()n foreclosure of the mortgage to , In 1867 legislature passed an act confirmChapman and
BBEPARl1d". 'NORTBWEl\TERN LIFE 15& 00·
·... " " , " " · . , . j
iIlg ,the right of the, Jackson Qompany, and vesting it with the land grant. The Jackson Company proceeded with the construction of the railroad from OWOSElO north, obtainedthe governor's certificates of completion, and afterwa,rds selected the lands ,to which, it bec.ame, entitled, amongst others the 'lands in question, and received a patent therefor· from the United States, dated May 4, 1869, and afterwards conveyed the lands in question to the plaintiff in. consideration of the sum of $1,600. H. H. Hatch and Theodore F. Shepard, for , John D. Conely and, A. O. MaxweU, for defendants. BROWN, J. This is one of many' cases which have arisen out of the loose methods adopted by congress and the state legislatures in identi· iying and with lands granted in aid of construction of railways. The cumbersomeness of executing patents lor the large tracts ot land volvedin these grants has led to the practice of patenting by legislative act, leaving the lands to be selected and identified in each case by the patentee.
THE INDIAN TITLE.
The first question in order of time, in this case, relates to the sup.', posed want of power in the United States to make the grant of these lands under the act of June 3, J856. It is claimed by the defendant, in this connection, that these lands, having been reserved to the Indians by treaty, were not in a condition to be granted hy the United States at the time the act was passed, inasmuch as the treaty of August 2,,1855, ceding them unconditionally to the United States, was not signed until June 21, 1856, 18 days after the act was passed. It seems that on April 15, 1856, the senate ratified this treaty, with certain amendments, which were accepted by the Indians May 14, 1856,but the treaty was not finally ratified and signed by the president until June 21, 1856. theory is that the treaty took effect from the time the amendments thereto were accepted by the Indians, May 14, 1856, and that the plesident's act in ratifying and signing it related back to that time. ' But by ,article 4 of the treaty it was absolutely provided that "it should be obligatory and binding upon the contracting parties as soon as the same shall be ratified by the president and senate of the United States." As it was never ratified by the president until June 21,1856, it is clear that it did not take effect until that day. Indeed, the constitution itself vests in tgepresident the power to make treaties, by and with the advice and concurrence of the senate. As he is the treaty-making power, it is as clear that the treaty does not take effect until he signs it as that his appointees to office cannot enter upon the discharge of their duties until he,has signed their commissions. His act in sending the treaty to the may have shown that it met his approval, but it evidently did not the approval of the senate, as it was returned by that body for amendment. The doctrine of relation has no application to a case of this.kind, where a statute prescribes the time.when the bargain shall talte ,
But we think the exact time when the treaty became operative is of no importance in this case, for the followinj:t reMons: . 1. Con(}eding, what appears to be entirely settled, that the act of June 8, 1856, was a present grant of the lands included in its terms, devoted to a particular purpose, and that no further conveyance by the government was contemplated, (Schulenberg v. Harriman, 21 Wall. 44; Wright v. Roseberry, 121 U. S. 519, 7 Sup. Ct. Rep. 985; Johnson v. Ballou, 28 Mich. 378; Railroad 00. v. DavisO'n, 32 N. W. Rep. 720,) it is held by the same authorities that the grant did not become operative, or divest the title of the United States to llny particular lands, until they had been earned by the buildiug of a certain number of miles of road, and selected by the railroad company. Indeed, the express language of the statute is that "in.case it shall appear that the United States have, when the lines or routes of said road are definitely fixed, sold any section, or any part thereof, as ·aforesaid," other lands shall be selected in lieu thereof. It follows from this that if, after the passage of the act, and before the lines had been definitely fixed, the United 'States had sold any of the lands within the specified section, the road would be entitled to select . other lands in their place. Upon the other hand, were it not for the clause to which attention is hereafter called, it would be equally true that if, within the same time, the title of the government to such lands had become perfected, the right of the road would attach to them as if the government had always held the title; in other words, that we 13hould look solely at the state of the title when the right of selection attached, and not when the act was passed. This seems to have been the opinion of the supreme court in Rutherftrrd v. Greene'8 Heirs, 2 Wheat. 196; Taboreck v. Railroad Co., 13 Fed. Rep. 103. But counsel for defendants claims, in this connection, that these lands did not pass by the act of 1856 by reason of the last proviso of the first section, that "'any and all lands heretofore reserved to the United States congress, or in any other manner. by competent authorby any act ity, for the purpose of aiding in: any object of internal improvement, or for any other purpose whatsoever, be, and the samearehereby,reserved to the United States froin the operations of this act." If the lands in question had been reserved to the United States, within the meaning of this proviso, it would seem to follow that they were not the subject of location under this act. This consideration renders it necessary to examine. the prior treaties concerning the same land. By the treaty of January 14,1837, (7 St. at Large, 528,) the Indians ceded to the United States certain lands, inchiding this tract, intrust "to pay to the said Indians, in consideration of· the lands above ceded, the net proceeds of the sale thereof, after dednding the expense of the survey and sale, together with the incidental expenses of this treaty. The lands shall be surveyed in the usual manner and offered for sale as other public lands, at the land-offices of the proper districts, as soon as practicable after the ratification of this treaty." The treaty further provided that a special account of the sale" should be kept, and the balance invested, under the direction of the president)
NORTHWESTERN LIFE INS.
"in some public stock," and the interest thereof should be annually paid said tribe. By the second article there was reserved to the Indians "the right of living" upon certain tracts of these lands, but not including the tract in question, for a term of five years, "during which time no white man shall be allowed to settle on said tracts." Bya second treaty, the same year, December 20,1837, (7 St. at Large 547,) the United States were to reserve 50 cents per acre as an indemnification for the location to be furnished for the future permanent residence of the Indians, and to constitute a fund for emigrating thereto. This treaty was still further modified by the treaty of January 23, 1838, (7 St. at Large, 565,) by which a minimum price of $5 per acre was put upon these lands for and during the term of two years from the commencement of the sale. "Should any portion of said lands remain unsold at the expiration of -this time, the minimum price shall be diminished to two dollars and a half per acre, at which price they shall be subject to entry until the whole quantity is sold: provided that, if any part of said lands remain unsold at the expiration of five years from the date of the ratification of this treaty, such lands shall fall under the provisions of the third article of this treaty." Article 3: "To provide against a contingency of any of said lands remaining unsold, and to remove any objections to emigrating on the part of the Indians, based on such remainder, it is hereby agreed that every such section, fractional section, or other unsold remainder shall, at the expiration of five years from the ratification of this treaty, be sold for such sum as it will command: provided, that no such sale shall be made for less than 75 cents per acre." Part of the lands were sold under this treaty; but the lands in question, and a large quantity of other lands formerly within the reserve, were not sold within the period of five years, or at any other time, by the government. What, then, were the rights of these Indians when the act of 1856 was passed? They certainly did not possess the fee of these lands. That had long before passed under the treaty of 1819, which had merely reserved to the Chippewas the use of these lands. But if there be any doubt as to the proper construction of the treaty upon that point, it was removed by the treaty of 1837, which again ceded to the United States the tract in question. Nor did the Indians still possess the right to occupy them. Under the same treaty of 1837, this right was given to certain tracts, not including the one in question, and was limited to five years from the execution of the treaty. This right of occupation never extended to the land in question, and, as to those to which it did extend, it expired in 1842, fourteen years before the act of 1856 was passed. The only possible right which remained to the Indians then, was the right to call upon the United States for the net proceeds of these lands, at the minimum price stated in the treaties. It is true that a saleo, and not a gift, was contemplated; but all the Indians could receive in any event was the net proceeds ofsuch sale. This, however, was no restriction upon the right of the government to dispose of them in any other way, though it would be equitably bound to account for them as if they had been sold at the minimum price fixed by the treaties.
In short, the,title thelia 1l,wds had b(}en guished.We are, not, then, embarrassed by the considerations which the,court in the case of Railroad Co. v. U., S;,92U. S. 733, in which it was. .held that 'a general grant of to." railroad would not be construed to embrace lands.of which an Indian tdbe had been possession for an indefinite length of time. granted by treaty the use' In this case, ,by a treaty negotiated in 1825, there was reserved to certain tribes a tract of lano"so 10Ilg as they may choose to occupy the same." In 1&63, and while this, treaty was still. in force, congress granted ,certain lands to the state afKansas to aid in the, construction of certain railroads. The act,pontained a reservation similar in language to that contained in the act bf 1856, and it was held that it did not apply to lands secured to the Indians under the treaty of 1825, notwithstanding that in 1865, two years after the grant hll.d Reen made to the state, another treaty was negotiated, by which the lands were ceded absolutely to the United States,jn trt;1St to sell, and place the proceeds of to the credit of the Indians." The court took th,e ,ground that the perpetual right of occupancy negatived the idea, that congress intended to grant the Indian lands, either absolutely or cum onere. "For all practical purposes, they [the Indians] owned it; as the actual right of possession---.,the only thing they deemed of value-wasseGured to them by treaty until they should elect to surrender it to the United States." Three of the judges dissented. The case, however; is distinguishable from this in the important fact that the Indians retained the right of occupancy at the time the grant to the state,...,..a right which had been declared to be as sacred as the right of the United States to the fee. Cherokee Nation v. Georg'ia, 5 Pet. 48; U. S. v. Cook, 19 Wall. 591. It is unnecessary to decide whether, if the land had been held by a private person in trust for the Indians, to sell and invest the proceeds, a donation of the same lands to a railroad company would be valid; because, as it seems to us, a rule of this kind ought not to be applied to the government in dealing with the public lands. It was the policy of the government at that time to make granw of alternate sections of public lands doubling the price of the other to states for the construction, of se,ctions, so that the government might, by thus opening the country as much from the sale of one-half traversed by these railways, the lands as it would have realized from the whole of them had no such grant been made. It seems to us that the right to dispose of these lands in this way ought not to be emQarrassed by the fact that they were held under a trust to account to the Indians for their value, when no doubt existed as to the ability and willingness of the government to make such accounting, or to settle with the Indians in some manner satisfactory to them. That,'.in fact, had alrea.dy been done in this case before the act qad been passed, although the bargain was not fully consummated until a few days t h e r e a f t e r . . . 2. But, even if we conC.ede that the United States had no right to donate suchlands.as itheld in trust to ,sell for the benefit of the Indians, the fact remains that the road did locate these lands under the act of
SHEPARD .,. NOJtTBWESTEBNLIF'£ INS.
tiffs UIlder, their deed of 1869 from the Jackson Company, and that of the defendants nnder their deed from the Amboy Company to Maxwell, Campbell and Van Etten of November 26, 1865. Plaintiffs' position, in this connection, is that the. Amboy Company never earned but 240 sections of these lands; that all which had been earned were in November, 1861, eit4er deeded to Henry DRy, of New York, or Halmer H. Emmons, of Detroit, or were mortgaged to Chapman and Williams, trustees; that fonryears after that,and after it had conveyed all the lands which it had earned, or had any right or power to convey, it made a deed of the lands in question to Maxwell, Campbell and Van Etten; and that,no title passed to them thereby. Defendants' position is that the Jackson Company was the mere assignee of the Amboy Company, and took the lands subject to any conveyance it may have made; and when the patent subsequently issued to the Jackson Company it inured to the benefit of Maxwell, Campbell, and Van Etten, and their grantees. ,This argument is more fully stated and answered in the opinion of the supreme court of this state in the case of Railroad 00. v·. Davison, 32 N. W. Rep. 732, arising out of the same state of facts, in which it was held, in substance, that neither the state nor the railroad had any right to dispose of or incumber any of the unearned lands, and no right, legal or equitable, could arise out of such disposition in violation of law. We should have accepted this decision as settling the law of this case,' without misgivings as to its soundness, had our attention not been called to the opinion of the suprema court in Railroad Co. v. McGee, 115 U. S. 469,6 Sup. Ct. Rep. 123, in which, upon a somewhat similar state of facts, it was. held that there had never been any forfeiture of the grant, so far as the lands in djspute were concerned, and that the title of the purchaser stood precisely as it would if the original company had completed its road within the time fixed by the act. There can be 110 doubt that, so far as the decision of the state SUpreme court covers the construction of the state statute, it iS'binding upon this court, though the supreme court of the United States might have given a different construction to a similar statute. To determine this, and also to determine how far, if at all, it conflicts with the McGee Case, it will be necessary to analyze it with some care, in order to learn the exact points decided. The case arose upon a bill filed by the.Jackson Company to remove a mortgage given by Maxwell, the grantee of himself and his two associates, to one Davison, as a cloud upon the title of the road. The case was first reported in 32 N. W. Rep. 736. In delivering the opinion of the court, Mr. Justice CHAMPLIN held: (1) That the language of the act of June, 1856, referring to the quantity of land which might be sold, was manifestly a limitation of the power of the state to convey. (2) If the conveyances to Day, Chapman, and Williams and Emmons carried all the lands actually earned. and no other, no title passed to Maxwell, Campbell, and Van Etten of the lands described in the bill, and included in the deed of November 28, 1865. (3) That the deed of the state to Maxwell of May 26, 1867, (not in
SHEPARD tl. NORTHWESTERN LIFE INS. CO.
evidence in this case,) conveyed no estate, either legal or equitable, because the state could not convey lands in advance of their being earned; that the Amboy Company had no right to sell any of the land not carned, on the line of its road, included in the grant, subject to the right of forfeiture. It did not possess any such right, for the reason that no such right is conferred by the act of congress, nor is it within the spirit and intent of such act. (4) That Maxwell and his associates had no rights, as against the Jackson Company, based upon its having completed the road, and earned the lands. (5) That it was not necessary to decide whether there was a forfeiture of the grant declared or acted upon by the legislature or not, though he inclined to think there was not. (6) That the right of the Amboy Company to earn the land was not transferable, but might be voluntarily surrendered, and that the effect of the assignment, by the permission of the legislature, was a surrender of its right to the state, and the legislature vested this right in the plainant. (7) That the title of the complainant to the lands as earned, was not derived from the assignment, but from the act of the legislature conferring upon the Jackson Company the land grant, subject to the prior conditions of the grant. Another question was decided, not necessary to be noticed here. The opinion upon the rehearing also deals with this latter question, and is also immaterial. The court evidently placed much reliance upon the frequent declarations of the supreme court of the United States in Schulenberg v. Harriman, 21 Wall. 44; and Farnsworth v. Railroad Co., 92 U. S. 49; and Railroad Co. v. Railroad Co., 97 U. S. 491. The calle of Railroad Co. v. McGee, 115 U. S. 469, 6 Sup. Ct. Rep. 123, is not noticed in the opinion, and does not seem to have been called to the attention of the court. In this case, congress, in 1853, passed a similar act, granting .certain lands to the states of Arkansas and Missouri to aid in the building of a railroad from the Mississippi, by way of Little Rock, to the Texas boundary line. The Cairo & Fulton Railroad, of Missouri, was incorporated under the laws of the state, and· in 1855 the legislature passed an. act vesting in that company full and complete title to the lands granted to the state by the act of 1853, and provided that the company might sell the land in the manner proVided for in the act of congress, and issue bonds. On January 3, 1859, the company sold and conveyed the lands sued for to McGee, who immediately went into possession, and continued to occupy and improve them, paying taxes and assessments thereon. The de 'd was duly recorded, but the land was more than 40 miles from the starting point of the road on the Mississippi, and it did not appear that when it was sold a sufficient number of miles of road had been built to authorize its sale. In February, 1866, the legislature directed the governor of the state to sell- the road at auction, so far as the same was constructed or .projected, with all its property, and all ,rights and franchises belongv.40F.no.7 -23