SEYMOUR V. SLIDE &: SPUR GOLD MINES.
,Circuit Court, S. D. New York. March, 188'1'.)
The city (1ouncil of New York beinA' authorized by Laws N. Y. 1882, c. flO, (Consolidation Act,) § 86, subd. 8, "to regulate the use of the streets for" awnings, a motion to restrain the maintenance of an awning pendente UU will not be granted in an action to compel the removal of the awning.
In Equity. Motion for injunction pendente lite. Action by Nathaniel Whitman against W. L. Hubbell, as treasurer of the Adams Express Company, to compel the removal of an awning, on Laws N. the ground that it interfered with the view of plaintiff's Y. 1882, c. 410, (Consolidation Act,) § 86, subd. 8, provides that the city council of New York shall have power "to regulate the use of the streets for signs, sign-posts, awnings," etc. Ira W. Warren, for plaintiff. Seward, Da Costa & Guthrie, for defendant.
BROWN, J. Under the Consolidation Act, § 86, subd. 8, the common council have apparently authority from the legislature to authorize awnings. The alleged want of constitutional power of the legislature to confer this authority is too doubtful a question to be determined upon a preliminary motion of this kind. If within 10 days the awning in question is made to GOnform strictly to the municipal regulations, the motion should, on the above grounds, be denied, without prejudice, however, to the consideration of the whole subject upon the trial of the cause. Ordered accordingly.
SPUR GOLD MINES,
CCircu·tt court, D. Colorado. 'June 17,1890.)
VENDOR AND VENDEE-CONTRACT-WAJVER Oll' VENDOR'S LIEN.
An agreement betwe.en vendor and vendee, that, on the payment of a certain Bum, the title to the property sold will be registered "free from all charges and incumbrances, " is not a waiver by the vendor of his lien for the balance of the pur. chase money. Such agreement relates to.the state of the title at that time, and not to anything growing out of the sale itself.
The facts that a vendor withholds the deed, and afterwllrds retains possession of the property, and has stock of the corporation to whom he sells the property pledged to secure the purchase money, are not of themselves sufficient to constitute a waiver of his vendor's lien. A vendee who accepts title ond makes part payment, according to the terms of an agreement between the vendor and the broker through whom the sale is made, is estopped to afterwards deny the broker's authority to make the agreement. ,
Bill to enforce vendor's lien.
vol. 42. '
Teller & Orahood, for complainants. L. S. Dixon, for defendant.
HALLETr, J. In 1886 complalljants owned a mine in Boulder county, which they desired to sell in England, and ,they ,employed J oha Haldeman, of London, as a broker to make the sale. Haldeman conceived' the id¢a, pf organizing a corporation to purchase the· property, and procured the organization of respondent under the limited liability companies acts of Great Britain for that purpose, apparently with a view to keep the sellers p.nd buyers apart. Haldeman proposed to take the title of the mine in his own name, and convey it to the corporation which should be -organized, and thus become a purchaser from complainants, and a grantor to the corporation. Complainants werie to sell for $750,· 000, of which one-half was to be paid in cash, and one.-half in stock of the corporation. The first deed· to the property was made to Haldeman, and placed in escrow with Wells, Fargo & Company, of London and the United States, to be delivered on payment of the cash part ,of the consideration. Respondent was organized in the early part of the year 1887, but nothing of consequence was done towards completing the sale until August 18th of that year, when an agreement was entered into between J. Fenton Seymour, acting for complainants and Haldeman, to the effect that l upon, payment of .£10,000 in addition to .£12,500 paid before that time, should" register the titles" "free from all charges and in(lumbrancEls" in Boulder county; and, furthermore, that Seymour should (lause the mine to worked "to its full capacity," and that the,proceeds of the mine, shonld amQunt to certain sums stated in the agreement, of which the oompany should have notice by cable. The agreement then proceeds as follows: "The said J. Fenton Seymour hereby undertakes and agrees to take the con-
trol of the management of the said property until the payments hereinafter mentioned are completed, and it is understood and agreed that he shall rlltain such control until the said payments are completed. The said John Haldeman agre!*lthati375.000"shares; of one pound each, in the above company. shall be transferred to Mr. Clarence Preston Elder as trustee, and deposited with Messrs. Wells, Fargo &; Companyin r.,ondolJ, to the intent that the said conshares shall be held as security for the due performance of the the of 10,000 pounds in additionto the above ditions. viz.: mentioned 22.500 pounds within three days after the receipt of the third sucCf',ssive weekly return from the mine as hereinbefore mentioned; and. second. the balance of 45,000 pounds at the expiration of ten days after the receipt of eight successive weekly retilrns of the nature and value above specified. Upon the completion of the above-mentioned payments, the said J. Fenton Seymour hereby undertakf',s and agrees to release the above-mentioned 375.000 77,500 to whic'h'he is entitled,and also less the number of shares, with th:l'illonsent and unMr the superVision of the aforesaid Clarence Preston Elder, acting for the said J. Fenton Seymour. In case the. weekly returns eabled from ,the mine shall from any cause fall below the sum of two hundred pounds sterling per week., then, in that case, such returns shall not count, but the tblle for paying the second ten thousand pounds and the balan«;e of the forty-five thousand pounds shall be extended P,'O rata,. but should the succesllive weekly returns amount to two hundred'pounds sterling per week, with a
SEYMOUR ",SLJDE & SPUR GOLD MINES.
moderate increase weekly. as hereinbefore mentioned, and the .said J obn Haldeman shall make default intbe payment of the balance of the forty-five thousand pounds, then, in that case, the said Fenton Seymour shall have the right to forfeit the amolints' already paid, and to claim theabove-mentioned 375,000 shares." . There is some dispute as to the result of work carried on by Seymour in the mine under this agreement, complainants claiming that returns were made as required by the agreement, and respondent claiming that the mine fell short of the amount specified in the agreement; but this is not material. The £10,000 first mentioned in the agreement were paid, and a deed from complainants to the company for the property was rved, placed on record in Boulder county. This deed, it will be ob8 was substituted for that which was first made out to Haldeman, and was then in escrow with Wells, Fargo & Company; and the parties say that this was done for convenience, and to save the necessity of recording two deeds,-one to Haldeman, and another from Haldeman to the company. , At all events, the company obtained title directly from complainants. Some small payments were made on the further sum of £55,000, which by the agreement was to be paid to complainants within two or three months thereafter. Nothing further was done towards completing the sale until October 5, 1888, when a proposition in writing was made by J. Fenton Seymour as agent for complainants to certain persons who had become, or were about to become, stockholders in the company, as follows: "First. In payment of thirty-five hundred pounds to Well!:!, Fargo & Company. we agree to start the mine at work in name of company. Said sum to credit of Col. Seymour. Second. Company to send cashier and engineer if they think tit. and Colonel Seymour to be resident manage.' and direc·tor for the period of one year. 7'hi1'd. All proceeds to be transmitted to company bankers. Fourth. Mr. Elder to deliver 75.000 shares to the Scotch subscribers, and forty-five thousand to Mr. Rust on payment of said sum. Fifth. The balance of shares to remain iDMr. Elder's bands as trustee until a final settlement can be made inside of three months after acceptance of this proposition. Sixth. Colonel Wilson, or whoever pays the thirty-five hundred pounds, to receive fifteen thousand shares from Mr. Elder on the final settlement. not later than three months, and meantime receive a legal obligation from Mr. Elder as trustee. Seventh. On resignation of Mr. Elder as a dirE-ctor. Mr. Allen to be elected. Ei.qhth. Thirty-five hundred pounds to be paid 80 soon as the company can register the transfer of the 75.000 shares." The £3,500 mentioned in this proposition were paid to complainants, and accepted b)T them, on the 15th day of December, 1888; and it is sufficiently shown that Seymour thereafter held possession of the' property for the company. An agreement made by Haldeman and one H. E. Gilbert, who, prior to the organization of the company, seems to have been set up as its representative, of date May 16, 1887, and another agreement of date September 10, 1887, between the company, Haldeman,. and Gilbert, sufficiently show that the 375,000 shares deposited with Wells, Fargo & Company, and by the agreement of August 18, 1887, transferred to trustee, were given to Haldeman in pay-
ment for the property, and a principal point in controversy between complainants .and resllOndent is whether they were also accepted by respondents in the same way. It is clear enough, however, that this is not the effect of theagreelllent of August 18, 1887, for by the terms of that instrument Elder was to hold the shares "to the intent that the said shares should be held as security for the due performance of the following conditions,!' and then follow the conditions for the payment of the £10,000 and the £45,000; and the final clause which gives Seymour the right to forfeit the amount paid, and to claim the shares, is only an option' in case of default, which complainants were in no way bound to It is said,however, that the corporation was not a party to this agreement,and that Haldeman was not its agent in making it. Having accepted titleaccording to its terms, and paid some part of the money mentioned in the agreement, the corporation is not now in a position to deny its authority, and the agreement must be regarded as having been m.ade, by the corporation or in its behalf, or, at all events, as having been ratified by it. It is also urged that complainants waived their right to a vendor's lien upon sale of the property by taking security for the purchase money,-first, in wi thholding the deed; afterwards, in retaining possession; and again, by the pledge of shares in the hands of Elder as trustee; and it must be conceded that all these things were done by complainant with a view to secure the purchase money. When the matter was first presented, I was of the opinion that by these acts complainants theirlien, alld so stated to counsel; but, upon looking into the authorities, I have reached a different conclusion. As stated by respondent1s,counsel, although resting upon the contract of sale, the lien is quite independent of it, being implied from the contract, rather than exitfits terms.. Where there is no waiver of lien, express or imrecognized and enforced, and taking security for the purplied, it will chase money is only presumptive evidence of waiver. 2 Jones, Liens, § 1090. In aU that was done by complainants throughout the whole negotiation there is no satisfactory evidence of intention to abandon the property as 'security for the purchase money. Certainly, in withholding the deed and the possession, they manifested the strongest disposition tG hold property until the money should be paid; and, as to the of stock, they assumed only a right of possession until the purchase money should be paid. Apparently the stock was to be sold by Haldeman J or by some one connected with the company, and complainants were not bound to do anything in that way. They merely required that the stock should be held by a trustee, subject to sale by Haldeman, until the purchase money should be paid. In this way, also, tpey were in a sense holding onto the property as security for the purchase money, in so far as the stock represented the property. In Cordova v. Hood, 17 Wall. 1, it is held tha.t the matter of waiver is to be determined upon all the circumstances oCthe case; and, if nothing appears to show it affirmatively, the lien maybe recognized and enforced. I find nothing in these negotiations to 8uppbrt the conclusion that de-
SLIDE & SPUR GOLD MINES.
fendants intended to abandon the property as security for the purchase money. As a further defense,· respondent contends that the lien was waived by that clause of the agreement of August 18, 1887, by which the title to the mine was to be registered." free from all charges and incumbrances;" complainants thereby agreeing to give the company a clear title. This is undoubtedly a correct construction as to antecedent transactions, but it is not to be taken to refer to the negotiation then pending. An agreement to convey without incumbrance means only that the title shall be clear at the date of the agreement. Whatever is incorporated into the agreement, or grows out of it, is not affected by such an obligation. It has never been understood that a vendor's lien is waived by covenants of warranty inserted in the deed of conveyance; and so in this article complainants must be understood as saying that the title which would be given to the company by their deed was free from incumbrance. If the contract had provided for security by mortgage or trustdeed, it would be absurd to say that by the clause under consideration such security would be waived; and this clause has no relation whatever to the vendor's lien. Further on in the same instrument provision is made for the payment of £55,000 of the purchase money, and so the article itself gives notice of the fact that a large part of the purchase money was still due. Upon the face of the instrument, it cannot be assumed that tbe premises were free and clear from incumbrance in respect to the purchase money. Referring to the same clause, respondent maintains that complainants are estopped of their lien from participated in the sale of shares of stock of the company. It is urged that having agreed to invest the company with a clear title to the mine, and having sold shares of the company's stock upon that representation, they shall not be permitted to take the company's property, and thus destroy the value of the shares so sold. As already stated, the stock was sold by Haldeman or by the company; but, if the stock had been sold by complainants, there was in fact no representation as to the vendor's lien. As already explained, the agreement to convey without incumbrance relates to the state of the title at that time, and not to anything growing out of the sale itself. Mr. ·Justice Story says, (2 Eq. Jur. § 1224:) "Generally speaking, the lien of the vendor exists, and the burden of proof 18 on the purchaser to establish that in the particular case it has belm intentionally displaced or waived by consent of the parties. If, under all the circumstances, it remains in doubt, then the lien attaches." There is much in the record, to which the learned and elab.orate arguments of counsel. have been addressed, which somewhat tends to show an intention on the part of complainants to waive their lien on the premises conveyed; but, in my judgment, it falls short of establishing the fact, and therefore I am constrained to enforce a lien for the purchase money. This, of course, excludes the part which was to be paid in stock of the company, and it has no reference to expenditures of complainant on the property since the cOl)veyance. The bill prays for these expenditures, 1m! they were notpress'ld in argument, and I see no rea-
son for them.' Probably counsel will be able to agree as to the amotiht of unpaid purchase money, arid if they cannot do so it may be to refer the cause for the purpose of ascertaining the amount.
ez rel.VAN DYKE
11. COLORADO CENT.
(Oircuit OOUrt, D. OoZorado. June 27, 1890.)
ll'BDllBJ.L CoURT-.J"URUlDIOTION-RllMOV'llD CASE-MANDAMUS.
WberE! a petition for. mandamu8 of whioh a J;las. is t:emoved to the federal court, the latter court W1U have JurlsdlCtlOn of the SUlt, though it would be beyond its jurisdiction if originally brought therein. In the absence of express authority by act of congress, a federal court has no jurisdiction to compel the operation of a railroad outside of the state in which the court sit41., Where a private person pet.itions for a manaamJU8 "on behalf of the people of the state," he must show in his petition and in the alternative writ that he is a citizen of, the /ltate, and that his interests as suoh citizen are inj uriously affeoted .by the acts complained of. An allegll.tion in the alternative writ that the defendant ran and operated a certain line Of railroad, and that said defendant was, a corporation of the state in which the Butt is brought, without showing when or for what purpose it was chartered, or wllat railroadt if any; it Quilt, or was authorized to build, is not sufficient to show that the defenaant was under any legal obligation to operate said railroad. The leasee of a railroad under a lease which all parties admit to be illegal, cannot be compelled by mandamu8 to operate,Buch road.
4. RAILROAD COMPANIEB-RBGULATION-MANDAMUS-PLEADING.
At Law. , On petition for mandamU8., On the 28th day of August, 1889, there was filed in the district court of Larimer county: in this state, a petition, the material parts of which are as follows:
"Your petitioner, Isaac N. Van Dyke, on behalf of the people of the state of Colorado, respectfully represellts unto your honor that he is informed and believes that heretofore, to-wit, on the 12th day of May, A. D.1884, the Colorado Central Railroad Company was a corporation of the state aforesaid; that said railroad exttmded througb and from the city of Fort Collins to the northern line of said state, and fl'om said northern line of said state through and to the city of Cheyenne, in the territory of Wyoming, and was then being run and operated under one management from said city of Fort Collins to said city of Cheyenne, aforesaid, and was by its being run and operated of great financial yearly value to the plaintiff, the people of said state, which was then, and has been hitherto, and is now, well known to the defendants hereto."
The petition then alleges that the company mortgaged its road to the defendants Jay Gould and Frederick L. Ames; states that, about the 20th of February, 1879, the Coloral;lo Central Company leased its ra.ilroad to the defendant the Union Pacific Railroad Company for the term of 50 years, and sets out the terms of the lease, and avers "that the leasing of the said Colorado Central Railroaa to the Union Pacific Railroad Coinpany was done at the instance of Jay Goul<1 and Frederick L. Ames; that