United States v. Forness

¶9FRANK, Circuit Judge.

¶10This appeal presents the issue of whether the Seneca Nation of Indians, as lessor to the appellees of lands located within the City of Salamanca, New York, may cancel a ninety-nine year lease because of default in the payment of rent. Although there is directly before us only one lease, on which the annual rent is but $4, the question is of greater importance because the Nation, by resolution, has cancelled hundreds of similar leases. The Salamanca Trust Company, which holds a $15,000 mortgage on the property here involved, and three other financial institutions intervened as parties defendant because of their interest as mortgagees of similar plots. The City of Salamanca, which has acquired by tax sales a number of properties under lease from the Seneca Nation, has also intervened. These lands are part of the Allegany Reservation, which, with several others, was set aside by the United States pursuant to treaties, for the Seneca Nation. See The New York Indians, 5 Wall. 761, 18 L. Ed. 708; Seneca Nation v. Tyler, 14 How. Prac., N.Y., 109; Seneca Nation v. Christie, 126 N.Y. 122, 27 N.E. 275; F. S. Cohen, Handbook of Federal Indian Law (1941) 416-424. During the railroad-building era beginning about 1850, railroad companies and settlers leased reservation lands from the Senecas, and these leases were purportedly ratified by the State of New York. When this ratification was invalidated by *931the New York Supreme Court,1 Congress passed the Act of February 19, 1875, 18 Stat. 330, which ratified existing leases and authorized their renewal for terms of twelve years. This was enlarged to ninety-nine years by the Act of September 30, 1890, 26 Stat. 558.

¶11Pursuant to this authority, the lease here involved was made on February 19, 1892 (as a renewal of an earlier lease), for ninety-nine years to Hector G. Forbes, who, in 1919, assigned it to Frank A. Forness and his wife, appellees here. The lease provided for the payment2 of $4 rent, annually in advance, on or before the nineteenth day of February, and stipulated that, if the rent was not paid as provided, the Nation “may re-enter the premises, or resort to any lawful remedy, to remove all persons therefrom.” The appellees have erected upon the plot a building costing $63,000 and in 1934 the property was mortgaged to the Salamanca Trust Company for $15,000. Appellees last paid rent on April 11, 1930, and since then they have been in default. Between January 1, 1939, and February 19, 1939, they received notice in the usual form, showing rent due in the amount of $36 (i. e., overdue rent for eight previous years and rent for the ensuing year) plus interest of $8.64 on the overdue rent. On March 4, 1939, the Council of the Seneca Nation passed a resolution cancelling all leases then in arrears. On learning of this resolution, Forness promptly tendered by check to the Indian Agent the amount of $44.64, his obligation as indicated in the notice. The check was deposited by the Agent, with others, in a special account. No payment has been made by the Agent to the Senecas.

¶12Cancellation of these leases, although obviously unexpected by Forness and his neighbors, was not prompted by caprice. There is overwhelming evidence that lessees of these lands were customarily lax about paying their rent In 1911, for example, 1,095 leases were in default; in 1915, 494; in 1931, 529. An attempt was made in 1911 by the Senecas to retain an attorney to collect the arrears, but the Department of the Interior ruled that the 1901 Act, which allocated the disposition of the rentals, prevented use of the funds for this purpose. In 1915, the Nation adopted a resolution cancelling defaulted leases; the cancellation, however, was not enforced. The present action by the Nation, then, represents the culmination of a long struggle by the Indians to enforce their economic rights. In spite of this undenied provocation, they coupled with their cancellation of the leases an offer3 to re-rent the affected plots on generous *932terms (at an annual rental of 2%% of the appraised value of the property, less the value of the improvements).4 Thus computed, the annual rent on appellees’ plot will be $115. Any such lease was to be subjected to all encumbrances which had attached to the cancelled lease.

¶13 Appellees argue first that this suit, brought by the United States on behalf of the Seneca Nation to enforce the cancellation, is in effect an action of ejectment, and that the action is barred by Sections 997-999 of the New York Civil Practice Act, which provide that upon a tender of the arrears of rent before judgment, the court shall dismiss the complaint. But state law cannot be invoked to limit the rights in lands granted by the United States to the Indians, because, as the court below recognized, state law does not apply to the Indians except so far as the United States has given its consent. Worcester v. Georgia, 6 Pet. 515, 560, 8 L.Ed. 483; Patterson v. Seneca Nation, 245 N.Y. 433, 157 N.E. 734; Mulkins v. Snow, 232 N.Y. 47, 51, 133 N.E. 123; cf. The New York Indians, 5 Wall. 761, 18 L. Ed. 708. But, it is argued, such consent to the application of state law was granted by Congress, by the Act of February 19, 1875, which authorized this lease and permitted the laying out of villages on the Cattaraugus and Allegany reservations of the Seneca Nation. Section 8 of that Act provided: “That all laws of the State of New York now in force concerning the laying out, altering, discontinuing, and repairing highways and bridges shall be in force within said villages, and may, with the consent of said Seneca Nation in council, extend to, and be in force beyond, said villages in said reservations, or in either of them; and all municipal laws and regulations of said State may extend over and be in force within said villages: Provided, nevertheless, that nothing in this section shall be construed to authorize the taxation of any Indian, or the property of any Indian not a citizen of the United States.”

¶14Appellees assert, and correctly, that the words “municipal laws” often are used to refer to the laws of a country dealing with intra-mural matters as distinguished from “international laws” dealing with its extra-mural affairs. Appellees then go on to insist that the symbol “municipal laws” has only that single referent, regardless of context. Such an argument involves the “one-word-one-meaning” fallacy.5 Similar reasoning would compel the conclusion that a clotheshorse is an animal of the equine species, and make it impossible to speak of drinking a toast. When, as in the statute, the “laws” of a state of the Union are under discussion, there can be no intelligent reference to its international or extra-mural laws, for it has none under our federal Constitution. Appellees’ construction would, in effect, read the word “municipal” out of the statute. “Municipal laws” of such a state can have but one referent, i. e., the laws of its municipalities. The meaning is the same as when we speak of the “Municipal Building” of the City of New York. When confronted, as we are here, with a word having two meanings, we should, of course, not select that meaning which gives it the least possible sense in the context in which it is used. In addition to the objection just indicated to appellees’ construction, we can find no reason for the specific mention in the statute of state highway and bridge laws if, as appellees contend, all state laws were comprehended in the generic term “municipal laws.” We conclude, then, that the statute did not make the “laws” — statutory or decisional — of the State of New York applicable to the reservation. The provisions of the New York Civil Practice Act, therefore, do not bar the result asked by the Indians. And Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is i napplicable.

¶15Appellees argue that if the tender does not prevent cancellation by virtue of the provisions of the Civil Practice Act, it nevertheless has resulted in a waiver of any right to a cancellation of the lease by the Indian Agent, as agent of the Seneca Nation, since he accepted appellees’ check for the amount of rent due, deposited it to the credit of the Treasurer of the United States, and failed to return the proceeds to them. They point to the Act of February 28,1901, which provides that all rents due on leases of lands within this reservation “shall be paid to and be recoverable to the United States Indian Agent for the New York Indian Agency for and in the name of the said Seneca Nation,” section 1, as proof of his *933authority thus to bind the Senecas, and they urge that this agency has been recognized and ratified by subsequent conduct. We need not pass on the doubtful proposition that the Agent was the agent of the Senecas, for it is clear that his authority, at most, was only that of a collecting and disbursing agent. As such he had no implied power to make or break leases, nor to waive the Seneca’s power to do'so.5a For the same reason the evidence that the Senecas had ratified his actions is irrelevant; at best, it might show that he was accepted as a collection agent, but it falls far short of indicating that the Senecas have ever accepted him as a proper person to waive their right of cancellation. The findings that they have regarded him as having broader powers were plainly unsupported by any evidence; the most that was shown was a custom to accept overdue payments, and no Seneca Indian was called to show that the Nation knew or ratified even this. Even if the Agent had authority to make — or if the Nation ratified — a waiver, his action was insufficient to constitute one. He caused the money to be deposited in a special account; none of it has been paid to the Nation, and it is, in effect, being held in escrow.6

¶16Another ground urged by appellees in support of their theory that there has been a waiter of the right to cancel the lease, needs only brief mention. It is that the notice sent to appellees by the Agent said that rent, though due on February 19, might be paid on or before April 20. In the case before us the appellees paid the overdue rent to the Agent before April 20. We will assume arguendo that the terms of this notice were sufficiently acquiesced in by the Seneca Nation to prevent cancellation unless default in any particular s installment continued beyond April 20. But whatever its effect as to rent due for the current year, the notice did not purport to extend the time for payment of rents due for previous years. Here appellees were in default for nine years; they are in no position to rely, as to the rent not paid in any of the previous eight years, on the two-month-grace period with reference to the currently due installment.

¶17It is urged that the lease cannot be can-celled because no proper “demand” was made for the rent. Appellees refer to the ancient common law requisite of a demand, as reported by Coke, viz., that the landlord must ask for “the precise sum due, at a convenient time before sunset upon the day when the rent is due, upon the land, at the most notorious place of it, though there be no person on the land to pay.” Prout v. Roby, 15 Wall. 471, 476, 21 L.Ed. 58, citing and relying on Coke on Littleton (Coke’s First Institute) 201b; cf. 2 Tiffany, Landlord and Tenant (1912) 1378; Taylor, Landlord and Tenant, §§ 493-4. The details must be strictly observed by the landlord; thus, we are told, “he cannot demand it at the back door of the house but at the fore door.” Coke, ibid. The requirement was based on the feudal7 idea that “the land is the debtor” and that “the rent issueth out of the land” (Coke, ibid; 2 Pollock and Maitland, History of English Law [2d ed. 1905] 130; 7 Holdsworth, History of English Law, 267-268), a notion of dubious applicability to a modern office building.8 The idea that the purpose of requiring a demand is to render forfeiture more difficult was not articulated until recent times. It would be a rash man who would say that no notions of avoidance of forfeiture were involved even in the feudal doctrine; for, at any period, among lawyers as well as among others, there are fashions in the expressions of *934ideas, and an idea which does not comport with the linguistic fashion may remain unexpressed although actually operative.9 It is possible, for example, that Coke’s insistence on the common law requirement of a demand was a competitive device to attract lessee litigants from the equity courts, which were relieving against forfeiture.9a But whether or not Littleton and Coke were thinking at all of relief from forfeiture in connection with the strict demand doctrine, they did not phrase the doctrine in those terms. The trans-valuation of that doctrine to make it patently a part of the doctrine of avoidance of forfeiture is a more modem development; today it has, in effect, become merged in the equitable attitude of unfriendliness, generally, to forfeitures, an attitude which we shall discuss presently in its application to the facts of the instant case.

¶18At any rate, the lack of such a demand on the due date was not alleged, nor did the defendants tender this issue at the trial. More important, to require such a demand here would be to insist upon an empty gesture, since the defendants knew that the rent was due.

¶19The rigid doctrine as to demand on the due date is a product of the medieval era. It has been called a period of “strict law,” the salient characteristics of which are formalism, inflexibility and indifference to the moral aspects of conduct.10 Ceremonialism is of its essence: “Estates in land begin in ceremony and end in ceremony,” said Coke.11 Scholars have assigned many reasons for this excessive formalism. Chief among them, it is said, is the distrust of judicial discretion. “Form,” wrote Jhering, “is the sworn enemy of caprice, the twin sister of liberty …. Fixed forms are the school of discipline and order, and thereby of liberty itself. They are a bulwark against external attack, since they will only break, not bend, and where a people has truly understood the service of freedom, it has also instinctively discovered the value of form and has felt instinctively that, in its forms, it did not possess and hold to something purely external, but to the palladium of liberty.” 12 It has been said: “In an epoch of inferior civilization, a rigidly enforced adherence to form serves a twofold purpose. On the one hand, it is an effectual means of curbing the passions of the litigants, of preventing tumultuous conduct and unnecessary harangues, as well as of compelling the parties to look at the facts calmly and make their statements with care. On the other hand, it acts as a check upon the premature tendency to exercise what seems natural justice …. A detailed consideration of the facts of the particular case, furthermore, is only compatible with the idea that that determination of the judge, because he is trained and unprejudiced, possesses a higher value than the untrained and prejudiced determination of the party, and that, therefore, in matters affecting his *935own interest, the party must bow to the decision of the judge. This idea was opposed, and could not but be opposed, to the then-prevailing self-consciousness of the individual. For, so far as experience, judicial capacity and training were concerned, the persons who were called upon to render judgment offered no better guaranty than the persons whose legal affairs were the subject of adjudication.” 13 Writing of the strict procedure of medieval English law, Pollock and Maitland tell us that one of its best qualities “was that in theory it left little or nothing, at least within the sphere of procedure, to the discretion of the justices. They themselves desired that this should be so and took care that it was or seemed to be so.14 They would be responsible for nothing beyond an application of iron rules …. For good or ill they made their choice. The ill is but too easily seen by anyone who glances at the disorderly mass of crabbed pedantry that Coke pou/red forth as ’institutes’ of English lam; the good may escape us …' *. As time goes on, there is always a larger room for discretion in the law of procedure; but discretionary powers can only safely be entrusted to judges whose impartiality is above suspicion and whose every act is exposed to public and professional criticism.” 15 Bowman describes the attitude behind this early formalism thus:16 “From the despotism of rulers men sought refuge in the despotism of rules. Under the influence of this idea, the rules of law became wholly inelastic and inflexible.” In such an era, says Maine, “substantive law has … the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see law through the envelope of its technical forms.”17 In much of the medieval period in England, says Holds-worth, “a strict and literal accuracy was required in the pleadings. A mistake in a name, or syllable, or letter was fatal.”18 The same kind of coercion of form, or “form-rigorism,” is found in medieval German procedure, where there was required an “observance, painful to the utmost, of a multitude of unimportant ex-ternalities …. This phenomenon … has drawn from Siegel … the observation that ‘it seems as if the formalities in question had been expressly contrived for the purpose of bringing the litigant to grief, so subtle and insidious was their design, so difficult their execution.’ ”19 Winfield remarks that “formalism in procedure is not a disease of early law, but is the life blood of it.” 20

¶20So far at any rate as English medieval law is concerned, this picture of a period of “strict law” has perhaps been overdrawn. Too much should not be made of such historical periodizations. Too often that kind of history-writing, as Aldous Huxley somewhere suggests, results from the ignorance or prejudices of historians.21 The case for the excessive “strictness” of medieval English law is made out by concentrating attention almost entirely on the activities of the centralized common law courts and, too, in a limited span of *936years. Thanks to the researches of Bolland, Barbour and others, we know that up to the 14th century, and to some extent thereafter, even into the 15th, a kind of equity was administered in those common law courts ;22 when this common law equity decayed, when the equitable principles theretofore recognized at common law evaporated, when common law ossified into a rigid technical system, then equity came to be administered by the Chancery and other non-common law courts.23

¶21Nevertheless, if we regard primarily the common law courts, the period when there arose the rigid rule of demand for rent on the due date may, with some justification, be called a period of “strict law.” Such rules “devised for purposes now forgotten, survive their occasion in the shape of formal requirements …. The rules which make up the traditional element of a legal system often grow up with reference to quite different ends from those we now seek and before the ends we now seek had been recognized …. Today, when interests and rights are defined and remedies exist only for securing them within defined limits, there are better means of controlling judicial action than hard and fast formal procedure.” 24

¶22The strict doctrine for which appellees contend derives from the status of landlord and tenant.25 But here another status or *937relation is also involved — that of the Indians with reference to our other citizens. And that other status, which has a special significance founded in current facts, should operate to abate and modify the rigidities of the landlord-tenant status insofar as they have a basis solely in past history and not in present realties. There was some need, in the medieval period, to protect with marked zealousness, the economic position of the tenant from harsh and oppressive treatment at the hands of the landlord.25a There is little need to afford such protection to the tenants of the Indian landlord in the instant case. The reason for the rule being non-existent here, the rule itself should here be ignored. We may recall Holmes’ comment: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” 26 Today there is no slavish adherence to such views as those expressed by Thirning some five centuries ago: "Hornby — This defendant will be undone and impoverished forever if this action is maintained against him for then twenty suits will be brought against him on the same ground. Thiming — What is that to us? It is better that he be ruined than that the law be changed for him … Y.B. 2 Henry IV, Pasch f. 18, PI. 6.27 We should, rather, act in the spirit of Marshall, .C. J., who described Lord Mansfield 27a as “one of the greatest judges who ever sat on any bench,” because he did “more than any other to remove those technical impediments which grew out of a different state of society, and too long continued to obstruct the course of substantial justice … Livingston v. Jefferson, 1811, 15 Fed.Cas. pages 660, 663, 664, No. 8,411.

¶23Fortunately, we are not trammelled by the ancient doctrine. No legal rules of any particular State are here controlling. Accordingly we are in the same position as federal courts often were during the ninety-six years before Erie R. Co. v. Tompkins, supra, came to bury Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, that of making an independent judgment as to the appropriate legal rules. We must look to the “common law” for a determination of this case. But as Holmes has forcefully pointed out, there is no “transcendental body” of common law uniform and unchanging for all jurisdictions having an Anglo-American legal system, nor are courts prohibited “from refusing to follow the English decisions upon a matter where the local conditions are different.”28 It should be noted, also, that where the fed*938eral courts are applying “federal law” — as, for instance, in the application of federal statutes — the Supreme Court has held that they are not, “in the face of greatly changed conditions … still chained to the ancient formulae … 29 It follows that we are here at liberty to apply legal rules as to landlord and tenant which comport with the Congressional intent concerning the Senecas.

¶24We cannot believe that Congress intended that, in our times, the rights of American Indians as landlords should be determined by the early 17th century views of Coke — an antique dealer in obsolescent medieval ideas 30 — commenting enthusiastically on the 15th century writings of Littleton, a medieval lawyer.31 Indeed if we were to emulate Coke, we would not take too seriously any precedent which we found un*939desirable. For although Coke relished antiquities, he was “no case lawyer, if by that we mean one who regarded a past decision as quite conclusive. On the contrary, he was more than ready to argue that a case decided in past time was wrong, and he very definitely believed in selecting from the number of past decisions those with which he agreed.” 32 (In truth, eminent legal historians have said that Coke had no hesitation in unscrupulously distorting or even fabricating precedents to suit his purposes.33) ,

¶25Moreover, in deviating from Coke, we are not without precedent. As early as 1730, Parliament, recognizing that the requirement of demand for rent on the due date was unduly ritualistic, abolished it when the lessee is in default for more than six months. Statute of 4 Geo. II, c. 28. A number of states have enacted similar or more liberal statutes.33a Much might be said for the position — accepted in one State —that the English statute, adopted prior to Independence, is part of the “common law.” 34 Campbell v. Shipley, 1874, 41 Md. 81. See 2 Tiffany, Landlord and Tenant, 1381-82. We do not say that there is a federal “common law” which includes the 1731 English statute as such. It is enough that, in construing the federal statute relating to the Senecas, Coke’s learning on the requirement of a demand need not be regarded as the last word, since it has been recognized in England and America as long outmoded. The unprotected position of the Indians 35 clearly suggests that the Congressional purpose was that Indians’ leases should be governed by a rule of “property law” at least as favorable to them as that which is followed in our more progressive states, particularly when there is involved a requirement which, in the case at bar, would have been without any useful function.35®

¶26There is this further fact; According to Coke, demand must ordinarily be made on the land, “because the land is the debtor, and that is the place of demand appointed by law,” but the rule was otherwise if some other place was designated at which the rent was to be paid. Coke on Littleton, 201b, 202a. Van Rennselaer v. Jewett, 2 N.Y. *940141. We think it a fair inference from the - terms of the Act of February 28, 1901, 31 Stat. 819, that the rent was payable at the office of the Indian Agent. Appellees do not contend that he was not there to receive it, and we assume that they do not intend to urge that the Indian Agent should have stood on the steps of his office and mouthed an oral demand to the bystanders, as was done in Van Rennselaer v. Jewett, supra. Cf. Singer v. Sheriff, 28 Pa. Super. 305.

¶27We turn, then, to the argument based upon the tender made by appellees, which they assert will stimulate a court of equity to overturn the cancellation of the lease. It is well-established that, as a general rule, equity will relieve against a forfeiture cause by non-payment of rent on the due date. Story, Equity Jurisprudence (14 ed.) § 1727ff; Pomeroy, Equity Jurisprudence (4 ed. § 453) ,36 But it is equally well-established that that rule, being equitable, is not inflexible, and that such relief will be granted only to an innocent suitor, i.e., one with clean hands.36a This requirement bars relief to one who has been negligent— or at least grossly so — or who has inexcusably or deliberately gone into default. Pomeroy § 452; Sheets v. Selden, 7 Wall. 416, 425, 19 L.Ed. 166. We think the defendants fall in the category of persons whose own conduct makes relief inequitable. See Davirris v. Boston Safe Deposit Co., 235 Mass. 76, 126 N.E. 382, 16 A.L.R. 429; Crawford v. Texas Improvement Co., Tex. Civ.App., 196 S.W. 195; Blue Ridge Metal Mfg. Co. v. Proctor, 327 Pa. 424, 194 A. 559. There is not here a mere technical delay caused by an oversight; defendants, on the other hand, cavalierly ignored their modest obligation for eight years. Rents were allowed to fall into arrears, not only on this property, but on four others owned by one of the appellees. Perhaps because they knew the amounts were so small that suit would not be brought by the Indians, perhaps out of sheer defiance of a historically maltreated people, perhaps out of complacency born of past experience that the Indians were patient — the defendants chose of their own accord to let many years slip by without payment.

¶28Circumstances like these cannot be excused by the lame apology thal others were doing likewise, and that the Senecas were known to be long-suffering. Even if such an excuse were not tantamount to an astonishing claim of a 'vested right in wrongdoing, preventing any correction of an evil condition, it would still fall far short of proving laches on the part of the Indians. It would be both impractical and unfafir to require the Indians to bring suit each year for the paltry sum owed on this plot, a suit costing more than the amount which it would yield, and it would be equally impractical and unfair to hold that they must expend part of the rent for badgering defendants and their neighbors into prompt payment. To hold that the Senecas cannot cancel this lease because they have treated defendants and others-generously in the past would, in these circumstances, be a miscarriage of justice. We do nob say that complacency by a landlord may never amount to a waiver of the right to strict enforcement of his lease, but under the circumstances disclosed here, where there has been shown a flagrant abuse of a landlord, helpless because of the small amounts involved, if not for other reasons as well, the conduct does not amount to a waiver. The very difficulty of enforcing the payment of rent due on this and similar leases creates some possible doubt as to the application of the doctrine against forfeiture, upon which appellees build their case. The common-sense behind the granting of relief is that the primary object of the parties is the payment of rent, for which the right to re-entry is only security; on this reasoning, landlords are denied the use of their power of re-entry where the rent payment, to which that power is only incidental, is made. We may question, though we need not decide, whether the doctrine should be applied when experience indicates that lessees are so recalcitrant that only a vigorous enforcement by the landlord of all its rights will be effective.

¶29*941When a defendant asserts an equitable defense he is, negatively, seeking equitable relief. Then — at least to some, although perhaps to a lesser extent — factors are pertinent which would be apposite if he were a plaintiff asking the affirmative aid of equity. If the defendants here were, as plaintiffs, asking specific performance of a contract to execute the lease now before us, it is doubtful whether they would succeed. The consideration — $4.00 a year— comes close to being unconscionably small. True, an unconscionably small consideration may not always be alone sufficient to bar a negative or even an affirmative equitable remedy. But here the consideration consists of annual future installments of rent so small in amount that, as we have noted, the expense of suits for their recovery makes their collection impractical; the consequence is that, for practical purposes, the lease is the equivalent of one which explicitly denies the landlord any right to sue for the rent, leaving him the cancellation of the lease as his sole remedy for nonpayment. That the tenant, under such a lease, can unfairly take advantage of the landlord is amply demonstrated in this case. A lease of that kind may shock even a calloused conscience. It would seem that the defendants’ assignor, as tenants, in making such a lease with the Indians, as landlord, for a term of 99 years, drove a hard bargain. In those circumstances, the conscience of the chancellor, which must be stimulated if the tenants are to receive even negative equitable relief, will not be easily aroused on their behalf. And it should not be stimulated in this case, all the facts considered.

¶30There is another reason why such relief is not proper here. Defendants, at least, are entitled only to relief against a “forfeiture.” The Indians, as we have said, offer to enter into a new lease upon most equitable terms, and, on oral argument, the United States, on their behalf, expressed complete willingness to have those terms embodied in our decree. No doubt the loss of an advantageous bargain can be a forfeiture, and if the defendants here have to pay $115 annually instead of $4, they will suffer a financial loss which will be diminished neither in amount nor in intensity by our refusal to call it a “forfeiture.” But equity will not relieve against any and all losses; we must first find some shocking or clearly unfair feature. Suppose, in the case at bar, the parties by agreement had provided that on a default in the payment of the $4 rent, the landlord could not retake possession, but would be privileged to charge thereafter rent computed as the appellants here have offered to compute it. Would we have them relieved against the provision for increased rent on the ground that it worked a forfeiture? We think not, and we think that this answer is decisive of the argument made by appellees. Cf. Emery Bird Thayer Co. v. Williams, 8 Cir., 98 F.2d 166.

¶31Our refusal to exercise our equity powers in these circumstances is reinforced by an unhappy realization that the dealings of certain of our citizens with the Indians have often been far from praiseworthy.37 The federal courts usually, unless precluded by complete want of power,38 have done what they could to prevent unfairness to Indians. Cf. Worcester v. Georgia, 1832, 6 Pet. 515, 8 L.Ed. 483.

¶32Under seriously adverse conditions, guardianship of the American Indians by the federal government has been necessary; they have accordingly been considered the nation’s “wards.” 39 Of recent years (extending over three presidencies) a program has been developed by the federal government to restore the Indians as soon as possible to a position of self-reliance. See F. S. Cohen, Handbook of Federal Indian Law (1941) v, 83ff. That they are inherently able, in proper circumstances, to attain such a position is apparent from the character of the Indian civilization on this continent prior to the advent of the white man and from the nature of the civilization of those Latin-American countries — now cooperating with us in a war against facism —where a large part of the population is Indian. But certainly in 1892, when the lease in suit was made, the Seneca Indians were still subject to exploitation.

¶33It is of interest that, after the decision in Worcester v. Georgia was rendered, Mr. *942Justice Story wrote to his wife, on March 4, 1832, “Thanks be to God, the Court can wash their hands of the iniquity of oppressing the Indians and disregarding their rights.” 40

¶34 There were included in the record proposed findings and objections thereto. This was improper. Federal Rules of Civil Procedure, rules 52(a), 75(e), 28 U. 5. C.A. following section 723c. Although we cannot condone this practice, it happens that in this case the inclusion of this material in the record seems to show that the appellant’s objections were made not to the findings listed in the record as defendants’ requests to find, but rather to other proposed findings with which the findings of the district court are apparently identical. We have recently asked for “brief and pertinent findings of contested matters … rather than the delayed, argumentative, overdetailed documents prepared by winning counsel.” Matton Oil Transfer Corp. v. Tug Dynamic, 2 Cir., Dec. 1, 1941, 123 F.2d 999, 1001. Otherwise, we lose the benefit of the judge’s own consideration. In the instant case, a comparison of the findings with the opinion seems to show that the findings proposed by the defendants were mechanically adopted, with the consequence that some of the findings made by the district court are not supported by the evidence and not substantially in accord with the opinion. Such a result can usually be avoided by following what we believe is the better practice of filing findings with the opinion, when the evidence is still fresh in the mind of the trial judge, and permit-' ting the parties to file objections under Federal Rules of Civil Procedure, rule 52(b). See Matton Oil Transfer Corp. v. Tug “Dynamic,” supra.

¶35We stress this matter because of the grave importance of fact-finding. The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably “right” legal rule applied to the “wrong” facts yields a decision which is as faulty as one which results from the application of the “wrong” legal rule to the “right” facts. The latter type of error, indeed, can be corrected on appeal. But the former is not subject to such correction unless the appellant overcomes the heavy burden of showing that the findings of fact are “clearly erroneous.” Chief Justice Hughes once remarked, “An unscrupulous administrator might be tempted to say ‘Let me find the facts for the people of my country, and I care little who lays down the general principles.’ ”41 That comment should be extended to include facts found without due care as well as unscrupulous fact-finding; for such lack of due care is less likely to reveal itself than lack of scruples, which, we trust, seldom exists. And Chief Justice Hughes’ comment is just as applicable to the careless fact-finding of a judge as to that of an administrative officer. The judiciary properly holds administrative officers to high standards in the discharge of the fact-finding function. The judiciary should at least measure up to the same standards.

¶36It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose — that of evoking care on the part of the trial judge in ascertaining the facts.42 For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. The trial court is the most important agency of the judicial branch of the government43*943precisely because on it rests the responsibility of ascertaining the facts.44 When a federal trial judge sits without a jury, that responsibility is his. And it is not a light responsibility since, unless his findings are “clearly erroneous,” no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment. As fact-finding is a human undertaking, it can, of course, never be perfect and infallible. For that very reason every effort should be made to render it as adequate as it humanly can be.45

¶37The judgment dismissing the complaint is reversed, and the case is remanded for entry of a judgment for the plaintiff, on condition that the offer of the new lease, as set forth in plaintiff’s affidavits, be kept open for sixty days following the entry of the judgment.