. ALTSCHUL 11. ROGa. ,
'cut short his career, and, the peculiar interest he and. the attorney representing him exhibited in the proceedings, there is allotted to his counsel, Messrs. McCradys & Bacot, $2,500, and to his personal .representative $1,000; to Mr. Calder's counsel, E. W. Hughes, Esq., ,$750; and to Mr. Calder himself, $800. The special master will apportion this gross am<:\unt upon the firstmortgage bonds of the South Carolina Railroad Company. Some 'of these bonds were payable in sterling. Under an erroneous construCtion of this mortgage, a valuation had been filed on these bonds -of $4.44 to the £. By the special effort of Messrs. McCradys & Bacot, this valuation was changed to $4.86 to the £. This service was rendered specially to these bonds, and must be specially paid by -them. The special master will deduct from the sum going to each sterling bond 10 per cent. of the difference between $4.44 and $4.86, .and pay the same to Messrs. McCradys & Bacot
ALTSCHUL v. HOGG et at (Circuit Court, D. Oregon. June 1, 1894.)
No. 2,014QUIETING TITLE-NATURE OF CLAIM.
W., complainant's grantor, granted to H., for two years, power to sell certain land, for not less than $445,000, H. to have 90 per cent. of any amount obtained in thereof. On the last day of the two years, H. came to W., stated that he had sold to defendant corporation for $445,000, that T., who was with him, was its attorneY,and demanded a deed. W. 8aid he would give it as soon as possible, and sent for his attorney. The next day W. sent to H. for any contract h.e had made, but none was fur· nished. T. stated that he did. not think there was any in writing, and had not been informed of the tel'ms of any that had been made. He was informed that if any had been made, with reasonable time for preparing deed, W. would be glad to carry out its terms. Seven years thereafter, defendant began actions for specific performance and breach of contract, which have not been prosecuted and are still pending. During the two years to which the power was limited, H., claiming to act thereunder, executed to defendant, for a consideration of five dollars, an option on the land. Thereafter he executed to it a deed thereof, for five dollars, dated within the two years, but acknowledged long thereafter. H. said nothing to W. about these instruments, but, after the date thereof, stated that he was negotiating for a. sale. Between the date of the option and deed, defendant executed a mortgage of the land, reciting that it had the right to become the purchaser on payment of $600,000; and, by its answer in this suit to llave any claim of defendant to the land declared void, It alleged' that the tender claimed to have been made by H. by certified check was '$600,000. H. was the preilident and principal stockholder of a corporation which owned most of the stock of defendant. During the 10 years since the expiration of the power of H., the owners of the land have made large and necessary expenditures in connection with the land, which defendant has not paid for, and does not offer to pay. Defendant, moreover, is insolvent. Held, that complainant is entitled to a decree.
'Snit by Charles Altschul against T. EgentonHogg, the Willamette Valley & Coast Railroad Company, and others. Decree for complainant.
Henry Ach and C: E. S.Wood, for plaintiff. Wallis Nash., fot' defendant C. O. Clark, receiver.
BELLINGER, Disttict Judge. This is a su!t to declare void any claim of right on the part of the defendants to lands:comprising a grant to the Willamette Valley & Cascade Mountain Wagon·Road Company, a.J,ld to enjoin the defendants, or eitber of them, from as· serting any elaim or tight in such lands adverse to plaintiff's claim therein. The controversy is between the complainant and the WillametteValley & Coast Railroad Company, by its receiver. The complainant's title comes from one Alexander Weill. The railroad claims under a contract of sale made by T. Egenton Hogg, as the attorney in fact of Weill. Prior to the execution of this power, the legal title to the lands in question was in one Clark, by conveyance from the road company for Hogg, Weill,and himself. Clark con· veyed to one Uahn, in trust for himself, flogg, and Weill. On Feb· ruary 18, 1879, flogg conveyed to Weill all his right and interest in the land grant, and in the stock, franchises, and property of every description of the road company and of the Deschutes River Bridge Company. On the 9th of the following April, Weill acquired the interest of Clark in the properties in question from Clark's heirs and widow. By the agreement of sale under which Weill acquired Hogg's interest in the property, it was stipulated on the part of Weill as follows:
"said WeP-l g1-ants to said Hogg full and irrevocable power for a term of two years, commencing on January 1, 1879, and ending January I, 1881, in which to negotiate and conclude a sale of all the lands, stocks, and franchises of said wagon·road company; provided, that no sale shall be made for a sum or amount of money less than ($445,000) four hundred and forty·five thousand dollars, which amount is now estimated as a sum equal to all the outlays, ad· vances, charges, expenses, and disbursements with which the prop' erty will):)e chargeable, for principal and interest, at the date of any sale which may be made by said Hogg within the period aforesaid; and any avails or realizatiQus that may be. realized or received upon any such sale in excess of said sum of $445,000, and the further sum of all the charges, expenses, out· lays, disbursements, and amounts that shall be hereafter expended, paid, laid out, and incurred in selecting the lands and procuring the certification thereof, prwided tor in this agreement, including the sum of all taxes that may be as· sessed on said lands, with interest at the rate of five (5) per cent. per annum charged thereon,shall be divided between the parties hereto in the follOWing proportions, that Is to say: To said Weill ten per cent. of all avails of such sale over and above the aforementioned sums and the expenses of negotiating the sale, ltIid' the remainder to said Hogg. And said Alexander Weill covenants and agrees that, upon any such sale of the said property being concluded . by said Hogg ,as Is herein provided, he wlll convey, or cause to be conveyed, to the purchaser or purchasers the legal title to the extent of all the interest he now has, or may at any time hereafter acquire, of, In, and to the said lands and property,' p.-ee of all incumbrance committed or suffered by him; but, in case said fail to negotiate and conclude a sale of all the said lands within the said time, his said power to sell as aforesaid shall cease and determine on the 1st of January, 1881; and time is agreed to be of the essence of this provision."
This is the power under which the railroad company now claims. By this agreement, Hogg bound himself to act as land agent, at Weill's expense, to select the most desirable lands within the grant to an amount of not less than 400,000 acres, nor more than 600,000
ALTSCHUL V. HOGG.
acres. On the last day that this authority had to run (December 31,1880),. Hogg presented himself to Weill in the city of New York, where both were living, and announced that he had sold the lapds in question for $445,000, for which sum he professed to have a certified check, which he offered Weill, at the same time demanding a conveyance of the lands and rights which he claimed to have sold. According to Weill's testimony, he informed Hogg that it was impossible to comply at once with this demand, but that, if time was given to have a deed prepared, he would comply with such demand; and he requested an opportunity to examine any contract of sale entered into by Hogg as Weill's attorney. Upon this, and while Weill was in the act of sending a clerk to request the presence of his attorney, Hogg and Mr. Turner, attorney for the Farmers' Loan & Trust Company, and another gentleman who had accompanied Mr. Hogg to Mr. Weill's office, departed. In October, 1887, the Willa· mette Valley & Ooast Railroad Company, by Hagg, as its president, began an action in the supreme court of New York against Weill and those associated with him in business for damages for failure to make a conveyance of the property in question in pursuance of Weill's alleged contract of sale made by Hogg, as his attorney in fact. Shortly afterwards the company began in the same court a suit in equity to compel a specific performance of the same con· tract. In this case, as in the other, Hogg verified the complaint as the president of the plaintiff company. These proceedings have not been prosecuted, and are still pending. The Farmers' Loan & Trust ·Company is made defendant herein, as the mortgagee of all the property and rights of the Willamette Valley & Coast Railroad Company. The Oregon Pacific Railroad Oompany has no apparent relation to the matters in controversy. It is a party with the other company in the deed of mortgage to the loan and trust company, and this probably explains why it is joined as a defendant in this suit. All the parties, with the exception of the Willamette Valley & Coast Railroad Oompany, have suffered decrees pro confesso to be taken against them. On September 29, 1880, Hogg, in his own name, entered into a contract with the Willamette Valley Company whereby he sold, for the expressed consideration of five dollars, to the company, "the right and option to become the purchaser" of the land grant It is recited in the contract that the option so sold is "under a certain agreement, dated the 18th day of February, 1879, and made between Alexander Weill, of the first part, and T. Egenton Hogg, of the second part." He reserves in this contract 10,000 acres to provide against contracts made by the original owners. In the mortgage deed to the Farmers' Loan & Trust Company, already referred to, it is recited that the Willamette Valley Oompany has acquired the right to become the owner of the road grant and stock of the road company and Deschutes Bridge Company, "which stock and lands are subject, before the title thereof can be acquired by the said Wil· lamette Valley & Coast Railroad Company, to the payment of six hundred thousand dollars." The Willamette Valley Company duly executed this instrument, containing this recital of its rights to become the purchaser of the property in question, "subject, before the
ttitle can'beacqpiredby the said ,. , . . [company,to the ,r>uym6nt'of· ,hundre4' ithousand.dollars:" Notvyit;b.;starullng this, :'Bpglg,in Weill's'Dame,uattorney'w:fact, by a deed'dated November 3, 1880;: for theeonsideration of .five dollars, un.dertakes to convey absolutely the property. in question to the WillamettwYalley Com.pany... Tbe acknowledgment to thifJdeed is dated' March 2'8, 1882. No intimation of eithEir of was given to Weill. In the latter-part'of the November, 1880, Hogg called at differthe' office of Weill, and stated that he was negotiating for a sale of the property'to cerWn parties, represented by ,a lIr. Short"and"finally, that su,ch negotiations had failed. On December 30,1880, Rogg sent a to Weill, in which he said:
be 'able to provide tile money to complete the .purchase otthe 'w.agpn-road Company's lands, etc., will you accept payment in a check by theCbemical Bank, City Bank, Bank of New York, Bank of OQmWl\l"ce, or any bank,S oflike standing? Please send answer at foot of 'this; lui'd obllge · · ·." . "':::1'"
,Weill answered this letter in the affirmative. Hogg's letter, in his own handwriting, is in evidence. If the phrase" "my parletter, refers to theWillamette Valley Railroad, it is, ofoourse, impossible that Hogg should have completed a sale andmade;a conveyance of nearly two months beforehelDd ascertained .whether such parties wouldr"be able to provide, the money to complete purchase." If he sold and conveyed'when the parties were not, able to provide the money to pay fon the property sold, he acted in violation of the trlist reposed in him;' ';MJrl, in excess of his authority; . If, as is probable, the deed dated November 8, 1880, ,was in fact executed. on March 28, 18:82, the date of its acknoW'ledgrnE"Ilt, it is evidence of a contrivance betweeI1 Hogg and the pretended vendee company to effect a transfer of the land grant to the latter. There is no explanation of these facts consistent with fair dealing. It is probable that the deed dated November 3, 1880, was in fact exeeuted on the date of its acknowledgment,-lIarch 28, 1882,and that it was in consequence of the discovery by Hogg that, while'he,had pretended in the instrument of September 29, 1880, to transfer 'his "right to purchase under his agreement with Weill," that agreement gave him no such right, but simply made him Weill's attorney in fact to make sale. of the grant, and, moreover, while, .as such attorney, he was authorized to sell for $445,000, yet he wasHable to account to his principal for 10 per cent of whatever amount the property sold for, no matter how much above $445,000 that figure might reach. If, thet'efore, the sale of should be construed to be within the "power," his so-called he would be liable to account for 10 per cent. of the difference between the"$445,000, for 'which he was authorized to sell and the $600,000 COllsideration agreed to be paid. These considerations probably suggested the device of an absolute conveyaI1ce for $445,pOO, antedated so as to appear to have been executed during the continuance of the power. Hogg became a large stockholder in ,theWiHamette Valley Railroad Company in August, 1880,
ALTSCIWL V. HOGG.
and immediately or shortly thereafter transferred his stock in such company to. the Oregon Pacific Railroad Oompany, receiving in return, as .the purchase price for such transfer, a large amount of paid-up stock in the latter company, and becoming its president. It appears from the recitals in the mortgage deed executed by the two companies to the Farmers' Loan & Trust Oompany in October, 1880, that the Oregon Pacific Oompany was the owner of at least seven-eights of the stock of the Willamette Valley Oompany. Hogg, as a large stockholder in and president of the Oregon Pacific, which owned seven-eighths of the stock of the Willamette Valley Company, was, in effect, a large owner in the latter company. The two companies were one property, and were ne<;essarily under one control. Under these circnmstances, Hogg could not represent Weill in a contract with the Willamette Valley Company. If the rule was otherwise, the relation of Hogg to the alleged pnrchasing company, with the other foots in evidence, is conclusive of the mala fides of the particular transaction. As already stated, upon receipt by Weill, on December 30th, of Hogg's letter asking if a certified check for the money would be accepted if his (Hogg's) parties should be able to prmdde the money to complete the purchase of the lands, Weill answered that it would. On the forenoon of the succeeding day, Weill sent Hogg a second letter, stating that he is led to think from Hogg's note of the preceding day that he (Hogg) may avail himself of "the refusal" which he bas fDr the lands in the agreement of February, 1889, and requesting that anything to be signed by Weill be handed to him at once, so that he may submit the same to bis attorney. There was no answer to this letter, bUlt thereafter Hogg appeared with Turner and another gentleman in Weill's office, and made the following statement: "Here is a certified check for $445,000 for your Oregon property. I have sold it to a company which :Mr. Turner here represents as attorney. I wish you would give me a deed for· the property at once,"-to which Weill answered, in substance, that he was ready to do so within a reasona.ble time, and he added: "But you must only ask of me that which is possible. If you are acting in good faith, we will certainly come to a satisfactory conclusion." Weill turned to a clerk, whom he requested to run over to his lawyer's office, and ask him to come at once; but in the meantime Hogg and his companions left the room. It is contended that Hogg's statement amounted to a tender of $445,000, and that Weill's failure to produce a properly executed deed on the instant, conveying, by exact description, several hundred thousand acres of land to a grantee whose purchase and name had just been made known (Weill testified that the name of the pretended purchaser was not stated), places Weill in default, and entitles the defendant to be considered as the equitable owner of the lands in question. It is not worth while to consider such a claim. Hogg well knew that Weill could not produce, executed for delivery, the required deed at a moment's notice, and that he was under no obligation to do
so; . · and the demand, with its attendant circumstances, shows that he did nat expect a deed, nor want one. Whether' he in fact had a certified check can never be known. He" could safely produce such a check,or assume to produce it, without risk of being required to deliver it, when he required an impossible thing as>a condition of delivery. If he had in fact been ready to pay tpe '4:4:5,000, he would have been willing to receive a deed as Soon as it could be prepared. Weill immediately sent a letter to Hogg's office, asking to be allowed to inspect any contract of sale that had been made, adding: "Thus far I have had no intimation .as to the terms,nor even the name of the purchaser. An immediate 'reply will oblige. · * ." To this, Hogg answered that the purchaser was the Willamette Valley Company; that he had frequently told Weill this before, and had told him the same thing at the meeting between them that day. The request in the letter of Weill to be allowed to see the contract made in his name was Dot referred to in Hogg's answer. Mr. Turner was referred to by Hogg as the attorney for the purchaser, the Willamette Valley road, whose owner was the Oregon Pacific, whose president and large stockholder was Mr. Hogg. Mr. Turner was within a few days called upon by Mr. Weill's attorney, in the spirit of carrying out any reasonable agreement of sale that had been made. But Mr. Turner said he had not seen the agreement between Hogg and Weill,and wa.s not aware of its contents; that he was of the impression there was not any contract in writing between Hogg and the alleged purchaser; and that he had not been informed as to the terms of that contract (the contract claimed to have been entered into between Hogg, acting for Weill, and the company whom Turner represented as attorney). Weill's attorney informed Turner that if there had been an actual sale, with a reasonable time to procure the deeds, they would be very glad to carry out its terms. It does not appear that Mr. Turner made any reply to this. "He didn't profess to know anything about any of the agreements." All of which goes to show that there was no agreement. I assume that Mr. Turner was willing to accommodate Mr. Hogg so far as to accompany him to Mr. Weill's office upon some plausible or partial explanation of what was wanted, and that he withdrew from all participation in Hogg's scheme when fully informed of its character. He was not a wit· ness in the case, and, notwithstanding the fact that his client, the Farmers' Loan & Trust Company, as mortgagee of the Willa· mette Valley and Oregon Pacific Companies, is interested as to the property rights and interests of these companies, it has declined to appear and make defense, although served with process. The answer of the Willamette Valley Railroad Company in this suit alleges that the tender claimed to have been made by Hogg was of $600,000, and conforms, therefore, as to price, to the recital in the mortgage deed of the two companies to the Farmers' Loan & Trust Company that the Willamette Valley Company "has acquired the right to become the owner" of the property in question, "upon pa;yment of six hundred thousand dollars." It was not
LI\ CHAPELLE .,. BUBB.
claimed upon the hearing that the certified check which Hogg professed to tender Weill was for more than $445,000, nor is any explanation of this discrepancy attempted. Hogg, as president of the Oregon Pacific Oompany, the owner of nearly all the stock of the Willamette Valley Oompany, executed the mortgage deed containing this recital. In all that was done or professed to have been done under this power there was nothing consistent or straightforward. The sale of an option by Hogg, as Weill's attorney, to a company in fact owned by himself, without communicating the fact to his principal; the pretended tender of a certified check for $445,000; the recital in the deed by Hogg, as president of the Oregon Pacific Oompany, on October 1, 1880, that the Willamette Valley Oompany had the right to ''become the owner" of the property in question upon payment of $600,000; the pretended deed by Hogg, as attorney in fact for Weill,conveying absolutely the same properly on November 3,1880, acknowledged more than two years later,-admit of no explanation consistent with fair dealing and honest motives. In more than 10 years that have elapsed since the expiration of Hogg's power, the owners of the property have expended large sums of money in complying with the conditions upon which the grant was made by congress, in defending their title in the courts, and for other necessary expenses in connection with these lands. The pretended purchaser of the property or of the option to purchase has not offered to pay any of these expenses, and does not propose to do so now. Its insolvency confesses its inability to pay such charges or purchase price of the alleged sale. The plaintiff is entitled to the relief prayed for, and such will be the decree.
LA CHAPELLE v. BUBB et a1. (Circuit Court, D. Washington, E. D. July 2, 1894.)
ALLOTMENT TO INDIANS OF LAND ENTERED FOR HOMESTEAD -INJUNCTION. INDIAN AGENT
Land entered by complainant under the homestead law, on which he had made valuable improvements, was included by the government in allotments made to certain Indians in fulfillment of a treaty stipulation, and his homestead filing was canceled. Held. that, the land not being within the boundaries of an Indian reservation, an Indian agent had no authority to eject complainant therefrom forcibly, and that complainant's possession should be protected by injunction pending a determination of the validity of his claim.
This was a suit by Alfred W. La Ohapelle against Capt. John W. Bubb, U. S. A., as Indian agent of the Colville Indian Agency, and certain Indian defendants, for an injunction to restrain said Indian agent from forcibly dispossessing the complainant of land which he claimed as a settler under the homestead law of the United States. Complainant moved for an injunction pendente lite. T. M. Reed, Jr., for complainant. Wm. H. Brinker, U. S. Atty., and F. C. Robertson, Asst. U. S. Atty., for defendants. v.62F.no.7-35