WOOLDRIDGJjl v. StERN. ,"I-, , ,. ."
,payment of i ts of tax necessary for this purpose.. :the value of such "matter" to the parties to the suit is the value or amount of the taxes which be levied on the property in case the ordinance should be passed.-and enforced. The burden is on .the plaintiff to allege and prove that these taxes would exceed in value the sum of $2,00,0. Beyond the bare assertion ·that this II value " does exceed $2,000, the bill is a blank on the subject. ;It appears that the property now pays for all taxes levied under the char"general fund,l' "street repairing," "fire purposes," and ·"payment of indebtedness"-the surn,of$42. In 10 years this would to $420. .Would the water-tax amount to more or less? On the facts stated in the bill no one can say. Such tax would have to be · ahout five times the sum of aU the taxes now levied on the property to give this court jurisdiction, on account of the value of the"mattel' in' disI,t. ,is not at all .probable that it would amount. to' ,so much. · But, it may.,g must appear :with reasonable certainty from the in the bijUhat the matter in dispute exceeds the value .2,000;. and this "matter" is not nor the property ()f the. but the sum of. the taxes which the plaintiff might hllve to ·pay'ona:cqoUt;ltof pro.perty by reason of such I;. ,Ifif f.rom the ,bill what rate levied upon the Property on roll of. t\>wn would be necessary to rl),isethis vrater, tax, it. be a slmple, :mllt,ter to .howm,?-ph .of the would. be reqpired, to pay. ,If 01167f.ourthoK,l the rate, :plaintiff be required .topsy mllkethe value/of, the 'll?d pOP,ulation,> and · tpe. dim;imshrl".her than ,i ,Th,e;demurrer is sustained. >. .
(O£rcuu Court,W. D. Missouri:, W. D.
Ma, 5, 1800.)
8'l'ATUTBOP. FRAUDS-AGREEMENTS NOT TO DE PERJI'ORlIIED WITHIN' A YBA.R.
A promise to support a child 15 years old until he comes of age is not an agree. ttlent"not to be performed within a year," within the meaning of the statute of frauds, sinoosucn promise. might btl fully performed within a year. if theobUd should die within that time.
At Law. On motion for a-new trial. . Action by Elizabeth Wooldridge against Jonas A·. Stern. plaiIitjff.. Defendant moves for a new'trial.. ., G,. Clark and U. M. Ingraham, $Q,fflz. BoYd apd SO/m),. l)qV'i$jJor deferidt}nt.
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'PIlILlPS, J. This is an action predicated on a parol agreement for the support and maintenance of a bastard child, and grows out of substantially the following state of facts: The child was born to plaintiff in 1872 or 1873, when the plaintiff was about 16 or 17 years old. The evidence tended to show that defendant was the father of said child. The mother seems to have had the care and burden of the support of the child from its birth up to the year 1887. After repeated efforts to have the defendant fulfill his alleged promises to assist the plaintiff in its maintenance, and failing therein, the plaintiff visited the defendant at his place of business in Slater, Mo., and insisted that he must either take for its support and educacharge'and custody of the child, or tion:. The plaintiff's evidence-which the jury. by their verdict, must have credited-was to the effect that the defendant, at the time of this visit, had recently married another person, and that in order to keep the fact of the paternity of this child, and the scandal thereof, from his wife, he then and there promised plaintiff that if she would leave the state, and remain with the child in the state of Colorado, he would pay her what was right, not only for her past trouble with aud support of the , child, but that he would from time to time send her money to support and educate the child until it was 21 years of age; that thereupon she accordingly took the child to Denver, Colo., where she remained with it, supported and educated it, up to the time of the institution of this suit, in 1889; that the defendant wholly failed to keep his said promise and tlgreement, for the breach of which this action is brought. At the conclusion of plaintiff's evidence, the defendant demurred thereto on the ground that such a contract was contrary to public policy and good morals, and that the same was within the stature of frauds; as being a parol contract not to be performed within one year. The demurrer was overruled. The jury returned a verdict-for plaintiff for 31,050; and the defendant moves for a new trial, urging the same grounds therefor as presented in the dem urrer to the evidence. The first ground of error is practically abandoned by counsel for defendant. The only real question to be determined is as to. the applicability of the statute of frauds to this agreement. So much of the agreement as refers to the future clearly indicates that its continuance might extend over a period of years. The contention of plaintiff's counsel is that it was none the less an agreement which might be performed within a year, as its longer continuance depended necessarily upon the contingency of plaintiff's life, as also that of the child. There is a general consensus among text-writers and courts that the term "not to be performed "does not include an agreement not likely to be performed within the year, nor one scarcely expected to be performed within that time; but rather does it purport such agreements which, by a reasonably clear or fair interpretation of all the parts, viGwed by the then existing cir.:lumstances, do not admit of performance according to the language and intention within so short a. period. Out of this root has grown the recognized rule that, notwithstanding it may have been within the contemplation of the parties that more than one year might be occupied in its
WOOLDRIDGE '11. STERN.
performance, yet if it might, consistently with its terms, be fully performed within that time, the statute does not apply. Such are agreements to pay a given sum of money on the day of the promisor's marriage, to leave money by last will, or to pay during or at the end of a life. or to board one during life, and the like. Tbis rests upon the presumption that it was witbin the contemplation of the parties to the agreement that the person whose life is concerned may not improbably die within the year; and, on principle, this presumption is extended to other contingencies which are liable to happen or occur within the year, and put an end to the undertaking. Had the agreement in question simply provided tbat the plaintiff, for a reasonable compensation, should take., and keep tbe child in the state of Colorado for an indefinite length of time, the authorities are generally agreed that suchan agreement would be within the rule of exemption from the operation of the statute. Murphy v. O'SuUivan,l1 Ir. Jur. (N. S.) 111; Souch v. Strawbridge, 2 C. B. 810; Browne, St. Frauds, (4th Ed.) §§ 274, 276a. But where a limit is fiX!ed to. the duration of thB agreement, such as the attainment of majority by a minor, the applicability of the statute cannot be said to be so well settled. Browne, in his treatise on the Statute of Frauds, (section 282a,) seems inclined to the opinion that such a contract is within the statute, while Smith's Leading Cases, (8th Ed. vol. 1, p. 619,) on the strength of the authorities, regards such· contracts as unaffected by the statute. See Wood, St. Frauds, § 275. The case of Peters v. Westborough, 19 Pick. 364, is perhaps the strong American case in support of the proposition that a parol agreement st to pay for the support and maintenance of a minor, then 11 years old, until the age of 18, is not within the statute. The decision is planted broadly on the ground that such a contract is predicated of the contingency of the life of the child, which is presumed in such case to have been within the contemplation of the parties. So that, if the child should die within the year, the agreement would not be avoided, but would be fully performed. The doctrine of this case is reaffirmed in Lyon v. King, 11 Metc.411. These deci8ions are predicated of the language of DE!"ISON, J., [in Fenton v. Emblers, 3 Burrows, 1279:] "The statute of frauds plainly means an agreement not to be performed within the space of a year. and expressly and specifically so agreed. A contingency is not within it, nor any case that depends upon contingency." So in Ridley v. Ridley, 34 L. J. Ch. 462, it is said the statute "is to be confined to cases where the agreement is not to be performed, and cannot be carried into execution, within the year." The doctrine of Peters v. Westborough is not touched by the holding in Hill v. Hooper, 1 Gray, 131. The agreement in that case was that the plaintiff's son, between 15 and 16 years of age, should enter the service of the defendants, and work for them until he arrived at the age of 21 years, in consideration that during the time they would pay to plaintiff for such service, quarter yearly, certain sums, and in addition, semi-annually, certain sums as clothes money, until the boy arrived at the age of 18 years, then
FEDERA.L REPORTER ,vol.
a semi.annuaUyuntil he arrived at the age of 20, and then a certain other sum semi-annually until he arrived at the age of 21 years. It is at once apparent, from the statement of facts, that the contract could not 'possibly be performed within the year. The undertaking of the pro'mis6rto make the specified payments was based upon the services to be performed by the minor through a series of years. As such a contract#a8' an entirety ,it could not be halved, nor in less degree subin such case it cannot be said that the contingency of life divided; was in: the contemplation of the parties. This distinction is very aptly illustraWd in the case of McKinney v. McCwskey, 8 Daly, 368, affirmed by theeourt of appeals, 76 N. Y. 594. The agreement was to support, educate, etc., a boy, 7 years old,until he was 21 years of age, who died during his minority. The bpinion'directs attentibn to the important distinction between such a case and one like Shute v. Dorr, 5 Wend. 204, which ",wran agreement to pay the sum of $100 for services of a minor until of the age bf 21. That was clearly within the statute, because it was tb pa:ro.' fixed sum for the five-years service. It was indivisible, and could not be performed within one year. So the court, in the opinion, observes: is a material difference between an agreement to pay one certain , sum for the whole of a person's services during a fixed period of time, and to pay for the sil'pport ofa person until he reaches a certain age. In the one case, if the party who is to serve dies, before the expiration of the time, the promiSor loses the benefit of what he contl"acted for. as he has received only a part of it. ,In the other, the death, before the end of the term, of the party to be supported, instead of being a loss to the promisor, is a pecuniary benefit," etc. last-named ease obtains in Indiana, Maryland, and The doctrine Kentucky,aDd; in effect, in New Hampshire, Maine, and Illinois. Wiggins v. Kcfzer.'6Ind.252jHiU v.Jamie8On, 16 Ind. 127;FroBt v. Tarr, 53 Ind. 390; ElliCott v.Turner, 4 Md. 476; Howard v. Burgen, 4 Dana, 137; Stowers v. HoUis, 83 Ky. 544;; Blanding v. Sargent, 33 N. H. 246; Hutchinscr/l. v.llutchinson, 46 Me. 154; White v. Murtland, 71 Ill. 266when analyzed, 268. Theclase of DeaWn v. Railroad Co., 12 Heisk; does not conflict with the doctrine oLtha above authorities. In that case plaintiff's husbll.nd was killed by one of defendant's trains. In can,.. siderationthat .she would not· Stile· the company fordamBges, the com.. !lanyagreed to support and the widow and her three childrenllU the .life of .the widow, and, if she should die' becameof age, the children should be supported $.ndmaintaitied until that time arrived.. 'l'he chief justice, who'wrote the opinion,expressly recognized the doctrine of Peters v. WestbOrough, for he says: . . When the pl'l'!mise is to continue to do something untiltbe contingen.cy occur, as, fortnstance. to pay during the promisee's life, or to support a child who is eleven ye!\rll old until sbe is eighteen. in these cases the promise is not affected by the,statute, because the party whose life is invol ved may die Within " the year." .
The opinion then proceeds to point out the peculiarities of the agreement in question,-that the was to support the children. at all events, until the youngest child had become of age: "It was not to support and maintain the youngest child only until it should arrive at age. but to support the widow until that time, if she should live to that period; and, if she should die before that period. the support of the children was. to cgntinue until the youngest should come of age. Hence if the mother and the youngest child should both die within the year. the contract would continue in force until the period when the youngest child would have.arrived at age, if it had lived. In other words. the contract was that the monthly amount of the husband's wages ShOll1d continue. at all events. until the time 'vhen the youngest child should become of age. and might continue longer if the widow should live beyond that time. The contract. therefore. could not be performed within the year. except 'upon the death of the widOW and all three of the children within that period." The idea evidently within the mind of the court was that the occurrence of so many events of death was so extraordinary and improbable that it could not constitute a contingency within the terms of the contract, and that "in such case the performance of the contract is defeated, not completed, upon the occurrence of the contingency." In roy humble judgment, much of the confusion in considering the applicability of the statute to these agreements arises from failing to keep in mind the important distinction between a contingency of such a nature as fulfills the obligation, and one that defeats or prevents it from being performed. In other words, it is the distinction between a matter of avoidance, or a. defeasance and fulfillment. The one depending upon the defeasance or matter of avoidance is within the statute. The other is not. So it is said in 1 Smith, Lead. Cas. 621: "But there is a manifest distinction between avoidance and fulfillment." After referring to certain cases, it concludes: "There is. however, no real contradiction between these cases; the ratio decidendi in Bouch v. Strawbridge, [supra,] being, not that the contract to support the defendant's child was defeasible, but that it depended on the continuance of her life, and might be fulfilled in less than a year if she diad." The case of Packet Co. v. Sickles, 5 Wall. 580, as shown by the opinion, (page 595,) was base,l upon the idea of a defeasance; and, thu8 viewed, there is no conflict in principle between the holding there and the overruling of the motion herein, which is ordered.
(Oircuit Oourt, S. D. OaH/ornia. April 28, 1890.)
On a question as to the true location of a patent, boundaries fixed by reversing the courses and distances must govern when found to coincide with the natural calls of the patent. When the points fixed by reversing the courses and distances do not coincide with the natural calls of the patent,. or the natural calls cannot be identified, then the regular courses and distances muat govern.
Action to recover land.
Wells, Guthrie & Lee, for plaintiff,
R. Dunnigan, for defendant.
Ross, J., (charging jury.) The documentary evidence inthe case shows the title to the land in controversy to have been in the plaintiff at the time of the commencement of this action, if the land is embraced within the boundaries of the Rancho Tejunga, as described in the patent for that rancho issued by the government of the United States. The patent was issued October 19, 1874, and the survey embodied in it was made in the year 1858. The survey is therefore an old one, and it will not be surprising if the evidence shows that SOPIe or all of the stakes placed by the surveyor who made the government survey have disappeared, or that some or all of the trees called for in the description contained in the patent have been cut down or destroyed. The facts of the case are for you to determine, and of the credibility of each and every witness you are the sale and exclusive judges. There are certain facts, however, about which there is no dispute between the parties. One is that the defendant was at the time of the commencement of this action, and still is, in possession of that portion of the land sued for which lies between the line claimed by the plaintiff to be the true northerly boundary of the rancho, and which is represented on the plaintiff's maps by the black line, and on the defendant's maps by the red line, and the line claimed by the defendant to be the true northerly boundary of the rancho, and which is represented on the plaintiff's maps by the red line, and on the defendant's maps by the black line. So that if you find the true location of the northerly boundary of the rancho to be as claimed by the plaintiff, your verdict should be for the plaintiff; but if you find its true location to be as claimed by the defendant, your verdict should be for the defendant. The real question for determination, therefore, is, what. is the correct location of the northerly boundary of the rancho? That there is an error somewhere in the description of the rancho. as embodied in the patent, is a conceded fact in the case. To solve the difficulty, the entire description in the patent must be taken, and the identity of the land thereby conveyed ascertained, by a reasonable construction of the language used, together with the plat of the survey annexed to the patent, and forming a part of it. That plat should be referred to and
UNITED STATES tI. TERRY.
considered in connection with the notes of the survey, for it forms an important part of the patent. The object in cases of this kind is to ascertain the intent of the parties to the instrument. The rule by which to find the ident is to give most effect to those things about which a. mistake is least likely to have occurred. On this principle, the things usually called for in a grant-that is, the things by which the land granted is described-are thus marshalled: First. The highest regard is had to natural boundaries. Secondly. To lines actually run, and corners actually marked, at the time of the grant. Thirdly. If the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established,·and no other departure from the deed is thereby required; marked lines prevailing over those that are not marked. Fourthly. To courses and distances, giving preference to the one or the l)ther, according to circumstances. In cases like the present one, where the description is ambiguous and doubtful, parol evidence of the practical construction given by the parties by acts of occupancy, recognition of monuments or boundaries, is admissible, and is to be considered in a.id of the interpretation of the instrument. The identity of the natural calls of the patent is for you to determine, and this you must do from all of the evidence in the case. If the evidence satisfies you of their true location, and you find that by taking one of the natural calls, as to the correct location of which you are satisfied, and from there reversing the courses and distances given in the patent, the line of the rancho would answer all of the natur3.I calls of the patent back to station 2 of the survey, then, and in that case, I instruct you that such line should be adopted, and the line should be closed by running a straight line from such station 2 to the acknowledged point of beginning of the rancho, which is station 3 of the adjoining Rancho ex-Mission San Fernando. In that case, your verdict should be for the plaintiff. If, however, such line so run by the reversed courses and distances would not answer the natural calls of the patent, or if from the evidence you are unable to correctly locate the natural calls, then, and in that case, you are instructed that the courses and distances given in the patent must govern, and in that event your verdict must be for the defendant.
UNITED STATES .". TERRY.
(Dr.8trict Court, N. D. Ca/tifornia.
March 11, 1890.)
RESISTING OFFIOER-"KNOWINGLY AND WILLFULLy"-INSTRUCTION.
Where defendant, under indictment for resisting an officer, alleges that she did not knowingly and willfully resist the officer in the execution of an order to remove her from the court-room, for the reason that she was rendered unconscious by the opinion of the court then being pronounced, the jury may consider the fact that she entered the court-room with a loaded revolver, to hear the decision \u. a case to which she was a party.