GIOTTLIEB ,. THATCHER.
GoTTLIEB t1. THATCHER.
(O(rcuit Oowrt oj AppeaZs, Eighth O£rcuu' lul,. II, 1899.)
LnUTATION ow AOTIONS-COLOR ow TITL_WHAT CONSTITUTBS.
A landowner gave a trust deed to secure her promissory note. In an action b,. · tbird person against the payee, the note was levied on and sold, the third person becoming the purchaser. He then demanded payment of the maker, which was refused, and he notified her that he would have the land sold under the trust deed, to which she assented. Before such sale, however, she made a direct conveyance to the payee for an expressed consideration equal to the face of the note. The land was afterwards sold by the trustee, and was purchased by the third person, who received a deed conveying on its face the full legal title. Held, that irrespective of the question whether the sales of the note and of the land, respectively, were valid in law, this deed was sufficient to oolor of title, and, being accompanied with payment of taxes, in good faith, for more than five years, was to confer absolute title, under the Colorado statute of limitations relating to unocoupied lands. Gen. St. 1883, § 2187.
The fact that the third person took the advice of counsel, and was advised that the note was subject to levy, and that, having purchased the same, he evidently believed· that he had a right to cause .the land to be sold for its satisfaction, was sufficient to show that in paying the taxes he relied on color of title obtained in good faith.
In Enol' to the Circuit Court of the United States for the District of -Colora:!\'>. Reversed. E. 'I'. Wells, R. T. McNeal, and John G. Taylor, for plaintiff in error. J. Warner Mills, V. D. Markham, and H. C. Dillon, for defEmdant in .error. Before CALDWELL and SANBoRN,Circuit Judges, and SHIRAS, District .JudgeSHIRAS, Judge. The defendant in error, Lewis C. Thatcher, brought this8ction in the district court of Arapahoe county, Colo., for 1he purpose of determining the title and right of possession to 20 acres -of unoccupied land situated in said county and state; and the defendant in the action,Joseph Gottlieb, being a citizen of the state of California, -removed the same into the circuit court of the United States for the dis·trict of Colorado, where the cause was tried before the court, a jury being waived. Among other defense..'l, the defendant pleaded that under color ·of title by him held in good faith he had paid all taxes assessed upon the land for a period in excess of five years before the institution ofthis suit, and therefore, under the statutes of the state of Colorado, be had become the owner thereof. The court found the facts to be as follows: .. (I) That the title to the property in question was, at and before the 1st day of January, 1874, in Annie C. McCormick. (2) That on January I, 1874, said Annie C. McCormick and Isaac L. McCormick conveyed the said prop.erty to David H. Moffatt, Jr., in trust to secure to SamuelH. Thatcher the payment of a promissory note of said Annie C. McCormick for thirteen hundred and fifty dollars. ($1.350.) payable two years after date, with interest at -twenty percent. per annum. which said instrument was in the usual form of ,deeds used in· Colorado for the security of money. (3) That said note was in-dorsed In blank by said Samuel H. Thatcher, and by him pledged to and left <With Gra)' and Eicholtz some time prior to September, 11877, to secure a loan
by them made to him for the sum of one thousand dollars, ($1,000.) (4) That Novemher 25, 1876. began an acLion in the district court of Ampuhoe cuunty, "eMu.... against Samuel' H. Thatcher, to recover on a pl'omissory pqtefor twenty-seven hundred dolla1's, ($2.700,) dated November 18. 18751pa1ableone year after date to the order dfJofleplt Gottlieb, with interest at the rate of five percent. permonth from dateuntil paid, interest due, and,Paya1>Jt;lrnonthly, and by Zelia Glenmore and Samuel H. Thatcher;' tl,laton,tbe said 1876, an attachment issued in said action. and gamisheeprocess was tbel,eupon served upon the said Gray and Eicholtz and upqnthe<said Annie C. McCormick. requesting them and each of them to tlpat the April term Of 'a;rod court; that no, j udgl1lent was ever entered agai1'lsttht'm 01' any of 'garnishees in the said action in the Said districtcourt. (5) That while said note WaS so in the possession of said Gray lind long the maturity thereof, tht>del'endant paid thf'm a to be due ,upon the loan secured thereby of twenty dollars. ($20.) and obtainf'd the pussession of the saio note from them. and thereupon had the same taken in execution on a jUdgment in the district court of Arap-. IIhoe cou!'Jty the said Samuel H. Thatcher, and the same wl\sl;lytlle shertff tl1ereupon advertised for sale ill the manner and for the time prescribed by statute fOfad vertising nnd selling personal property unller execution; and was afterWards sold undl'r said execution on the 19th day of and the stlme was bid in by the defenllant for the sum of September, eight)· l$tlO,) he beiJ1,g thl' highel:lt and best lJiddf'r therefor. (6) That. befol'ehavinghis execlition'levied on said note, ,the defendant took advice of his counst'l as to wheth"r the same was SUbject to levy and sale under executhm. and watll\d,Vil:led that it Was so SUbject. (7) That after so bidding in said llote, and lJefure reqllesti l1 g the said trustee to sell the premises in question to satil:lfy the same, he presented said note to the maker, Mrs. McCormick, for payment, andpa)'ment was not made; and he thereupon advised her that the propP-It)' hiqliesHon woultl 'be sold by the trustee t,l the same. and she assented thereto. (8) That on the 5th day of February, IH78, thll premises in quel:ltion wl're conveyed by said Annie C. McCorlllick, by th.. nam.. of Annie C;Y.aild.- and IsllaeL. McCormick to tile plaintiff, Le,wis C. Thatcher, fl)r the oftllu'teen hundrlld and lilty ,dollars.OU,350,) which was the a,/pollnt of the .· promissory note of. the grantor to said S,lmuel H. Thatcher; Sail] Thatcher was II brother ofthi!! plaintiff, and he di't'd 0461' al,'o'tit the 10th day of Fellrllary. 1tl7l:l. and left Rurviving him as'bis only 'hel'r the plnintltfiherein, Lewis C. Thalch,'r, and 'at IIJl times men· tioned ht·rein this plaintiff WIlS tilt" only heir apparent of the said Samuel H. Thatcher; and the saidcoIHeyance of Febrnary 5, 1871:1, which was a warranty was made. executed, and, del,ivered lIy the said grantors to the saillgralltee, at tile said Samuel H. Thatche,r, ,for the purpose of paylllg uff tllA above-mentiCllwd promissory note of thirteen hundred and Iifty dollars. ($1,350.) and thel'eby or foreclosinl!' the said dt>ell of trust securing the sallle; that the said promissory note theriovt'l'due for more than t'our Y\"I11'8, aM defendant had not acquirl'd any ril(ht before maturity to defeat the said purpo8t>, and the said aC('ol'dillgly so paid off and the JrUl:lt 11LJIl lind void. (.9} That the said trllstee, David :M;vffl,ltt., Jr., tlfterllt'i,n,g rt"qUt'sted byllefendant so to do, advert'sed and expose!l,t'orsllie saitlprrmi8t'8lWCOrdingtl/the said trust deed. to satI8fy:t.he sahJ:lIote.,anda\snch sale on ,January 10. Itl79, the said dt'ft'ndant bid.inthe said premises attbe price of sixteen. hundred dollars, ($1.600.) in Il_tilll'action of tbeamouo;'"due on SRid: note, so held ,by him, be the highest and s$id premistl8. ,and thertlupon re,ceived a conveyabce thl'reot' from,aid:trustee. ,(10) :T-l1at allidpremises have,. ever since said sale; been vacant T,ltat!'or eVery year, from the time uf
. GOTTL:pm tl. THAT.CB:EB.
note MAnnie C. McCormick, of which he had obtained possession from Gray and Eicholtz. When this levy was made the note was the property of the judgment debtor, and certainly it cannot be said. that Gottlieb was acting inbadfllith in seeking satisfaction of his debt out of property belonging to his debtor. Whether the note could be levied on· and sold so as to convey title thereto was a legal question upon which he sought and followed the advice of counsel. Evidently believing that he had become the lawful owner of the note in question, he presented the same for payment to the maker, and, failing to get the money due he notified Ber that the property conveyed by her to secure the note would be sold by the, trustee under the provisions of the deed executed by her, to which she assented. The trustee subsequently advertised the property, and Sold the same at public sale, Gottlieb becoming the purchaser; and, lip.on the exectlti()o of the deed to him by the trustee, he paid all the taxes then assessed 'against the property, and has continued to pay thern from that date to the present time. There is nothing in the other facts found bvthetrial court which impugns the g()OO faith 'of Gottlieb in taking a d'eed from the trustee in pursuance of the purchase made 'by hini.. Even if it betrue thattheconveyance made by Annie C.McCormi9k 'to Lewis Thatcher terminated ,the I'ight of the trustee tOsl;lll·the property, as was held by the trial court,-a question entirely clear that upon which we express nO opinion,-it Gottlieb relied UpOn the advice given him. by counsel that the note secured by the' 'trust deed could be la.wfully levied upon' ab;d sold under execution, and believed that the purchase ofthe note gave him the right to subject the ,land to sale for the purpose of paying the debt evidenced thereby. In our judgment, the facts found justify but the one cond\}o. sion, and that is that,' in paying the taxes upon the land since 1879, Gottlieb was clearly acting under color of title obtained in good faith, and has thus become entitled to the lan<;l under the provisions of the statute of Colorado, already cited, and the 'circuit court erred in holding . to the contrarv. The the trial court is reversed, at costofdefendant in error, and the case is remanded, with instructions to enter judgment for the defendant.
NEWSPAPER CO. v. NORTHWESTERN ASSOCIATED
NEWSPAPER CO. OF OMAHA PRESS.
(Circuit Cowrt Qf Appeals, Ef.ghth. Ctrcuit.
EVIDENCE-MATERIALITY-PRoolJ' Oil' VALUE.
In an action by a newspaper company against an association organized to procure and distribute news, for the allep;ed wrongfUl canoellation of its membership therein, evidence as to the number of proposed purohasers of the membership and the amounts offered was admissible, as showing the value thereof. The damages soup;ht being limited by the pleadings to the value of the oanoeled membership, the faot that tne paper suspended publication shortly after the canoellation was immaterial,and it was error, therefore, to admit evidence of want of business ability in the manager and of the causes of the suspension.
111. SUIE-PLEADINGS AND EVIDENOE.
In Error to the Circuit Court of the United States for the District of Nebraska. Action by the Republican Newspaper Company of Omaha against the Northwestern Associated Press to recover damages for an alleged wrongful cancellation of plaintiff's membership therein. Verdict and judgment for plaintiff for $802.50, from which it appeals on the grounds of inadequacy of the verdict, and of improper admission and rejection of evidence. Reversed. Ralph W. Breckenridge, for plaintiff in error. E. W. Simeral, R. S. Hall, and O. J. Green, for defendant in error. Before CALDWELl, and SANBORN, Circuit Judges, and SHIRAS, District Judge. SHIRAS, District Judge. The Republican Newspaper Company, a corporation organized under the laws of the state of Nebraska, became, about the 1st of July, 1890, the owner of the plant and property ofthe Omaha Republican, a newspaper founded in 1858, and published in the -city of Omaha, by purchase from J ..C. Wilcox, the former owner thereof, who became the president of the corporation, and continued in the active 'control of the publication of the newspaper. As part of the property included in the transfer, there passed to the corporation a membership .or one share in the Northwestern Associated Press, a corporation created under the laws of the state of Illinois, and formed mainly for the purpose of procuring and distributing telegraphic and other news reports. Shortly after the transfer above stated. and about the 30th of July, 1890, the publication of the Republican was Ruspended until December 12, 1890, when it was renewed, and continued until January 8, 1891, when it again ceased, and has not been since resumed. On September 24, 1890, the executive committee of the Associated Press held a meeting at <Jhicago, Ill., and, without notice to the Republican Newspaper Company, canceled the stock of the Omaha Republican, upon the theory that the suspension of the publication of the newspaper terminated the rights