' ' ,
:(OirCW£t Gpur; 8. D. New York.
, , A preliminary injunotion will not be granted to restrain foreolosure of a chattel " mortgal'e on property purohased by plaintiff, after the execution of the mortgage, at exeCution sale, on the ground that the mortgage, is contrary to the statutes against ,fraud,u,lent conv,reyanoesi whereplamWl was 1I0t a creditor, and the execution credito-\,s are not made part es to the
David WiUcro:, Jor plaintiff.' Henry Bacon,for defendant.
On motion for preliminary injunction. '
WHEELE:a,J'. ,'This is amotion fora preliminary inju:qptton forec1qsnre of a Ghattel mortga.ge, made by the defendant corporation, of. property,sincepurchased, by ,the plaintiff at a sale on execution against the eorporation. The niortgage is alleged to be void because rriadeafter refusaI:of payment of debts, because made to officers of the corporation, and because ma:de, in insolvency, contrary ,to: the stator the state. '2 Rev. St',N. Y.(7th Ed.) p.1534, § 4; 3 Rev. St. N. Y. (8th Ed.) p,,172Q, § are statutes against fraudulent conveyances. The validity of the conveyances depends upon extrinsic facts; and they are good as the parties to and all others those plaintiff was not a creditor, and not one sought to be sought to be defrauded, and 'had no right to defeat the mortgage until after he bought ,the property. Ilis right is,vested in the particular property which he, bought, and he has no right to have the mortgage set aside wholly., who may have that right are not parties to the su,it, ,either personally or by a :representation of them. all. The case is notJike, v. Smith, 13 Pet. or (Jhapman v. B"ewer, 114 V.,S. 158, Ct. Rep. 799, relied upon by the plaintiff. In those cases the instruments creating the could be set aside., Here the plaintiff is to settle a ,right to specifiQpe1'&Onal propin of a trial at law. The propriety Qf this is erty in a preliminary injunction. Motion denied.
v. J EFFRID.
Maroh 1, 1889.)
'",' ,,: ;
" tCircuit C6wrt,: D.
Rev. St. U·.a."Ii,ll896,provides and cOJltents of the several Bections,hMfsetitMils,a'nd quarter'sections of the public landllshallbe ascertained" 6S follows: "All the corners marked in the surveys returned by the surveyor general shall be established as the proper corners of sectiqus, or subdivisions of seotions, which they were intended to designate; and the corners of half and quarter sections not marked in the surveys shall be placed, as nearly as possible, equidistant
statfd . Ii. ., wbI?h haye nol;' ,beenlWtuaUr run shall asCElJ,'tainecf byr,llnning 8trlught hnesfrem the 'established corners to the OPPOSIte corresponding corners; but in·thOBePQrtiol1s oft4e fractiorlal to\VDsbJIIs where lno, lI11ch' opposite corresponding corners have been or can beflxed; the boundary liJ}\ls shl111 be ascertained byrnnning from the established corners .. ..,'. to the water-course; HeliJ; ,that in alot bordering 011 a liver the water-course becomes the, boundary, and continu8ssQ, no matterhpw much it shifts by accretion, and conveyances of thUotipuS:lill, mcludingsuchaecretion, to that line. ' going on, and that 40 acres have been added to adjoining land, do not overthrow an avermellt"of a bill to quiet title to such addition, on the ground of accretioll, that it where it waS nearl120 years in forming. , ,.' .,', .
".S.um."", rapid changes in tbe banks of the Missouri river are ,,' ' The f8cts that
:Wall, bi 'an imperceptible
In Equity. On demurrer to bill to quiet title. Jf1!1ne$ M. Woolworth and Chas.· J. Greene,' for plaintiff. Pin'ley:Burke, for defendant.
'BRJilWER, J. This is a bill,Jiled by the complainant, to quiet its title to a tract of about 20 acres. which lies in what was at one time the bed of the Missouri river. Complainant claims that the premises in question were by accretions against land, title to which hljl,derives through sever81 mesne cOIlVeyances from the person who origillaUy entered the same, and, that by accretion the new land became a part of tllat which ,was bought of the government. The facts alleged are that in 1851 the United' States, in surveying' township 75 north, range 44 west,in Iowa, founii, section 21 to be fractional. and subdivided it so as to produce lot containing 37.44. acres. Field-notes and plats were duly made, returned., and approved 'in the general land-office. They show the meand«:lr line of lot 4, its course and distances; the nortll boundary oOhe lot being the Missouri river, along whose banks this meander line was run. In 1853, one Edward Jeffries entered .this lot, and in 1855 a patent was issued to him. ' The complainant claims title by mesne conve)Tancesfrom J the last deed (the deed to complainant) being,dated Mll-rch 26, 1888. The meander line was the same, or nearly the same, 'then eri,te,red th,elan,das when the survey ,was mad,e. but about the time of the entry land began to be formed along the bank by, natural causes and imperceptible degrees; that is, by the current and the waters of the river washing and depositing against and along the north line of said lot earth,sand, and other material. so that by 1870 a tract of 40 acres and more had been formed by accretion. In 1877 the river suddenlycutthrough its banks, on n point 'more than a mile south of its, original bed, and changed its course so as to leave high and dry all the through which it,had flowed from 1855 to 1877. The· case is, before the court upon demurrer to the bill, and the question is whether this body of land, formed by, this gradual and imperceptible addition, belonged to the owner of lot 4, and passed by the several conveyances of 10t4 to complainant. Counsel for defendant challenge, the application of the doctrine of accretion to. the changes caused by the. Missouri river. I shall not cOnsider that question, but assume that the accre,tion applies he!eas well, as elsewhere. ,He also crin-
cises the language of the bill, whioh that when. the land was entared the left bank was nearly where it was in 18.51, .when the survey was made. I pass that. by, also, and assume for the purposes of this case that the doctrince of accretion applies, and that Edward Jeffries, when he entered the land, took a.ll the land to the Missouri rivert Complainant insists that the meander line. is n9t the line of boundary; and that this is so is settled by the case of Railway Cb. v. Schurmeir, 7 272. I quote the language of the court: ·'Express decision of the supreme cou,rt ot the state was that the river, in this case, and not the meandeJ: line, is the west boundary of the lot, and in that conclusion of the state court. we entirely concur. Meander lines are run. in surveying fractional portions of the public lands borderi ng upon navigable rivers. not as boundaries of the tract. but,for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale. and which is to be paid for by the purchaser. In preparing the official plat from the field-notes. the me(lnder line is repl'esented as the borderline of the stream. and shows to a demonstration that the water-course, and not the me(lnder line. as actually run on the land. is the boundary." In that case the meander line ignored a tract of 2.78 acres, which in time of high water was an island, but in time of low water connected with the main-land; and it was held by the supreme court that the patent from the government of the fractional lot adjoining took this tract as a part, although outside of the limits of the meander line. But the question in this case lies deeper that this, It is not what belongs by the law of accretion to the owner of lot 4, but what passes by a deed oflot 4; and it is insisted bycounsel for defendant that the patent took only to the river line, as it stood when the survey was made, and that every subsequent deed describil1g the'property only as "Lot veyed no more. In other words, he insists that land which is formed by accretion does not pass bya'conveyance descriQing the lands to which the accretion has been made; and in this proposithm I is correct. In the caseof Granger V. Swart, 1 Woolw. 88, Mr. Justice MItLER, ofthis circuit, cha.rging the jury, held that a patent for a fractional lot carried the ground to the river bank, as it was at the time the 'survey was made, but that, if between the time of the survey and the time of the entry a body of land had been formed by accretion, it remained the property of the 'government, and did ',not pass by the entry and patent. The same doctrine seems to hljiVe ,been recognized by the supreme court of this state in Lammer8 V. Nissen; 4 Neb. 245; Bissell V. Fletcher, 28 N. 303. But for this court the question Seems to be put at rest by the decision of the supreme court of the U states in the case of Jones V. Johnston, 18 How. 150, which involved a question as to lands in the city of Chicago bordering on the Hike.' I quote this from the opinion: one answer to tbis assumption is tbat a grantee can acquire by bis deed only the lands described hi it by metes and bounds. and with sufficient certainty to ena'ble a person of reasonableakiU to locate it. and cannot acquire lands outside of the description. by way of appurtenance or accession. Lord Coke says: ·A thing corporeall oannotproperly be.appendant to a thing cor-
EAST· OMARA LAND CO. tI. JE:FFRIES.
poreall, nor a thing incorporeall to a thing incorporealJ.' Co. LUt. 121b. And this court, in Harris v; l!JUiott, 10 Pet. 54, after approving of the maxim of Coke, observed that · to this rule land cannot be appurtenant to land.' In the case of J ack.Yon v. H athawa'll. 15 Johns. 454, the court say ·a· mere easement may without express words pass, as an incident to the principal object of the grant; but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to 8!lother distinct parcel, Which is expressly granted, by precise and definite boundaries.' See, also, Leonard v. White, 7 Mass. 6." And again: "Any alluvial accretions since the deed belong to the plaintiff, as owner of the adjoining land. Any past accretions belonged to the then owner; .and who.; ever sets up a title to them must show a deed of the same, as in the case of any other description of land. The case of Lamb v. Rickets, 11 Ohio,311. exemplifies the principle for which we are contending. The defendant had agreed to convey a piece of land. called the ·Hamlin Lot,' containing fortytwo acres, more or less, and also two other small lots, of ten aeres. witha proviso, tfthe Hamlin lot and the two others contained more than fifty-two acres. the excess waS reserved. The defendant conveyed the Hamlin lot, and refused to convey the other two. A bill was filed to compel a conveyance. The Hamlin lot was bounded by one of its lines on the bank of the Tuscarawas river, and hall been originally conveyed to the defendant, and by him to the plaintiff, as containing forty-two acres, more or less. The defense set up to. the bill was that before the defendant conveyed the lot to the plaintiff larlte accessions had been made from the dver to the lot, and that these alluvilil formations made up the of fifty-two acres. The plaintiff claimed that the quantity should be determined according to the old bOllnda\'Y of the lot upon the bank of the river. which would be but some forty-two acres. But the court held that the question was not as the bank of the river was twenty-five or thirty years ago, but as it was when the Hamlin tract was conveyed to the plaintiff, and estimated the quantity of land conveyed ingly." . As I read thi.] opinion of the supreme court, it asserts this doctrine: that, while alluvial accretions belong to the owner of the adjoining land; they do not pass by the conveyance of that land. In other words, if the owner of lot 4, in the case at bar, became through accretions the owner of 40 acres adjacent, his conveyance of lot 4 carried the lot as it stood, and not the 40 acres of which he had become the owner by 'the matter of accretions. If he intended to convey this additional tract, by apt language he should describe it. His is limited to that which he described, although it may be true that the boundaries of lot 4 are not the meander line as run by the surveyors, but the bank oithe river as it stood when the surveys were made. If he wished to convey that which had formed since, and which had become his through tions, he should by apt words describe this added land which he proposed to convey. Not having· conveyed these accretions, they remain his. The complainant's title is limited to lot 4. That lot was bounded bythe river line at the time of the survey aJ;ld the entry. The lands outside of that it has never purchased. That is the land in controversy. To it the complainant has nO title, and the demurrer must be sustained.
nl :nl' . i"!.
"'Bk1mvERi J. This cage was'suhmitted to m,e last winter on demurrer
On of it seemed to m.e the was well takep, and I an opInIon sustaining.it. An application for a reQear\ng:was filed, and the case is before me now on such.application. Fot .thedacts of the case, I refer to the former opinion. The first question is whether the doctrine of accretion applies. In opinion" I lIrssumed that it did; Qut that assumption is challenged by for defendant. While the allegation in the bill is of an .imperceptible incJ;ease, one the characteristics and tests of accretions, yet counsw urge that I am bound ,to take judicial notioe Of theoharacterof the the soil throlighwhich it flows, and ofthe rapid changes in the banks which ate constantly going \:>D, aq\\ also that the exteQ,t of the total increase, as disclosed by the biij., SO great as t() idea of that necessary imperceptible in(:rease. I cannot assent to this-.While it is true the increase is great, many acres hR.v'ingbeen added, yet the time during which this increase wRs'made was nearly 20 years, and, obviously, during that time an inmight be going ()n,impeN:eptible from day to day and from week to week, which during the lapse of these. many years would result in the addition of all the land; Hence, notwithstanding what is known Qf the character of the river, and the soil through which it flows, no conclusions Howing therefrom can overthrow the plain averments of the bill. . Passing now to the que$tion which I ruled in favor of the defendant, 1 am constrained to believe that I erred therein. It was held that a deed to lot 4 conveyed lot 4 only, as it existed at the time of the survey, and that remained the property of the prior owner, unless expressly named in the deed. The ruling was based principally vpon the case of Janes v. John.8tont 18 How. 150, and singularly it is that casewqich, after and re-examination; leads me to change my opinion. Section 2396 of the Revised Statutes provides how the boundaries and contents of several. sections, half sections,and quarter sections.of the public lanlis may be ascertained: . "Sec. 2396. "The boundaries·and contenlillof the several sections, half sec· tions, and quartf>T sections of Jhepublic lands shall be ascertained in conformity with the fol1pwingprinciples:First. All the corners mi\rked in the surveys returned by thesurv'eyor general shall be established as the proper Corners of sectlions, or subdivisiOns of sections, which they were intended to designate; and the corners of half and quarter sections hot marked on the surveys shaUbe placed 8S nearly as possible eqUidistant. from those two corpel's ;Which stapd on. the samell:ne· . Second.T:he boundary lines actually run marked in the. surveys returned by the sl!rveyor general shall be established ssthe proper boupdsry lines of tll'e sections or su,bdivisions for which they were intended, and the length ofsllch lines, as returned, shall be held and considered '. as' the true length thereof. And the boundary lines which bavellotbeen:actually run and marked shall be llscet'tained by running Btraight