FELIX V. PATRICK.
457
the complainant. The defendant, and perhaps one witness, insist that complainant stated his ability to build a house, even if his /tssociates failed to enter into the scheme, and insist that complainant was to be bound by this contract for a l,OOO-bushel house. Inasmuch as all who were present, the complainant and the defendant among the number, agree that this contract, as it stands, was not to be binding, it is very obvious that the defendant ought not to be permitted to enforce it. It was not signed as and for a contract, but signed simply as an excuse, and to comply with the rule of defendant and his partners in respect to the disr.losure of the process, and probably also as the basis oia contract to be thereafter entered into between the defendant and the proposed company. Neither can there be, as defendant suggests, a reformation of the contract. Both parties knew what they were signing,-knew what the language of the instrument was. There was no mistake or misunderstanding in this respect; and whatever may be the truth as to the parol under.. standing in reference to the building of a 1,OOO-bushel house, it is not true that this contract by mistake was written for a 2,OOO-bushel house, instea0 of a 1,OOO-bushel house. Hence there is no excuse for the reformationofthis contract. It must stand or fall as it is written; and, as .all the parties agree that as written it was not to be binding as a personal contract, we think the complainant is entitled to a decree cancellingtba instrument, and enjoining the action at law; and it is so ordered. PHILIPS,
J. t concurs.
'FELIX
et al. v.
PATRICK
et al. ' .
(Oirc'Uit Oourt, D. Nebraska.
October 29, 1888.)
L .
EQUITY-LACHES.
Some half-breed scrip for government land, a blank power of attorney fin its location and conveyance, and a blank quitclaim deed, were obtained from the owner by fraud, and came into the hands of defendant. who used the scrip to obtain a patent to land of which he was in possession. The pate:yt was taken in the name of the owner of the scrip, which was not transferable, and the blank instruments were filled out, conveying the land to defendant. At that time the land was only of nominal value, but it afterwards very valuable. Held that. the acts of defendant being in violation of the original owner's rights, there was no express relation of trust. and that the owner and her heirs, having contributed nothing to increase the value of the limed. and having delayed to bring the action to declare the defendant trustee and to cancel the conveyances till after the period of limitation, were precluded by their l a c h e s . ' LIMITATION ·OF ACTIONS-EXCEPTIONS-INDIANS.
2.
Under the Nebraska bill of ri/?bts, § 33, providing that .8111 courts shall be open. and every person, for any mjury done him in his lands. goods, person. or reputation. shall have a remedy, and under Rev. St. U. S. relating to actions between an Indian and a white man. about a right 01 property.. an:Irl· dian may come into the courts and litigate his title to land. and. where he is Dot shown to pe 'uneducated or unfamiliar with the laws, the statute of limitations willl'un against h i m . '
"458
FEDERAL REPORTER.
In Eql;lity. ". Bill by l;'ierre Felix and others, heirs of Sophia Felix, against Matthewson T. Patrick lUld others. to·declare defendants trustees of certain land. J. H.ParsOfI.8, for Pierre Felix. J.G. Cowi11, Bhip:rna,n. Barlow, Larocque & ,Gh,orxte, for Chas. Ogden. J.L. Webster, Ambrose Cavanagh, Crane & Atwell, and Goo. E. Pritchett, for defendants· . BREWF.R, J. This case is submitted on demurrer to the bill. The facts, as alleged, are these: In 1854 one Sophia Felix was a half-breed Sioux Indian, residing near Mendota; in Minnesota. Under and by virtue of the treaty with the Sioux Indians of date July 15, 1830, and proclaimed February 1,1831, and an act of congress approved July 17, 1854, said Sophia Felix was entitled to receive from the government scrip for the location of 480 acres. In 1857 this scrip was issued to her in separate parcels. The act provided that no tranp.fer or conveyance of the scrip should .be valid. Afterwards. said Sophia Felix intermarried with one David Garnelle. On the 31st of March, 1860, some persons unknown, by fraudulent practices, obtained from her and her husband It portion of this·scrip, good for a hundred .and twenty acres, also a blank power of att91'11ey, duly a,cknowledged, for the location of said scrip, and for the conveyance of the land afterlocation; also a blank quitclaim deed, dulyaeknO'wledged. In these instruments the:name of the attorney, the description of the land, and the name of the grantee were blank. In November, 1861, the defendant, Mathewson T. Patrick, obtained possession of this scrip and these blank instruments from some unknown persons. Prior to that time said Patrick had been in possession of the premises now in controversy, seeking to acquire title thereto by pre-emption, but had been unsuccessful, the land being within the corporate limits of the town of Omaha. After obtaining possession of this scrip, Patrick used it to enter.the land, and July 3, 1863, the patent was issued in the name of Sophia The blanks in the instruments were filled the name ofan a description of the land"and name of Patrick as .grantee; and th.e attorney thus named in the. power of attorney executed another deed in the name ofSophia Garnelle and her husband to llhii.These instruments were all placed of knew at the time of these was hy law with knowledge of fact-that the scrip was inalienable,and was still the property of Sophia Felix, yet he used it for the purpose qf securing title to the land to himself, and did not pretend and was not attempting to act as her agent. On JUly 1868, congress passed an act confirming the title to certain lands in the city of Omaha which had been entered with Indian or half·hreed scrip. The land in question was, however, in express terms exempted from the operation of this act. Aft2, 1869, another act was· passed touching this erwards, ·ori land, which reads as follows: ..An. act supplementary to an act entitled' An act.to confirm the titles to certain lands in the state of Nebraska:' Be it enacted by the senate and
FELIX<V. PATRICK.'
459
house of represeiltatives the United States of America', in congress ' bled, that 'the provisions and benefits of an act entitled' An act to coilfirm the title to certain lands in the !!tate of Nebraska, appr<lved the 25t1l day of July, Anno Dorninieighteen hundred and sixty-eight, be, and the same are hereby, extendedto the east half and north-west quarter of the south-east quarter of section nine, township fifteen, range thirteen east, Sixth principal meridian, in Douglas county, Nebraska. and that the title of the same is hereby confirmed to the parties holding by deed from the patentee.'" 15 U. S. st. at· Large, 269.
of
The tract lies, as heretofore stated, within the limits of the city of' Omaha; has been platted into lots and blocks, and large numbers of lots sold to individuals, many of whom are joined as parties defendant. It has become of immense value; worth, as stated by counsel, from a million to a miUi(ln and a half dollars. Sophia Felix Garnelle died on day of December, 1865, without children and intestate; Her hUSband, David Garnelle, died in 1882. Her mother died before bel', and her father died October 22, 1876. The present plaintiffs are her brothers and sister and her sole heirs. Neither she nor her husband nor father nor these plaintiffs knew what had become of the scrip, or that it has been entered for this land, until the year 1887. The present plaintiffs became citizens of the United States for the first time on August 29, 1887, having then severed their tribal relations with the Sioux Indians. This bill was filed in the present year, and seeks to charge the defend. ants as trustees for the benefit of plaintiffs, and asks that the power' of attorney and the two deeds be eanceled as clouds upon their title, and' the act of congress of February 2, 1869, in so far as it attem pted to vest title in Patrick. be declared unconstitutional and void, and also that pos:. session be delivered to them. Several grounds of demurrer were urged and argued by counsel with great earnestness and ability before my Brother DUNDyand myself. The two principal ones are as to the effect of the act of congress of li'ebruary 2, 1869, a.nd the staleness of plaintiffs' ,claim. It will be noticed that act of congress confirnlS the title "to the parties holding by deed from the patentee. I, Now, if the land, by reason of its location within corporate limits was not subject to pre-emption or private entry, all seems probable, (section 2258, Rev. St. U. S.; Root v. Shields, Woolw.340; Eldred v. Sexton, 19 Wall. 189,) it may be that the patent in 1863 waS improperly issued, and that the equitable title still remained in the United States; and a plausible argument is made that congreE:S by this act of 1869 vested the title which still equitably remained in the government in Patrick, as an apparent, at least,grantee of the patentee. But I do not care to discuss this question, for to my mind the other defense is satisfactory Rnd clear. Prior to 1861, Patrick had been in possession of these lands, seeking to acquire title from the government. In that year he obtained pOssession of this scrip. and in 1863 acquired the patent. Twenty-eight years after Sophia Felix had parted with her scrip; 27 years after defendant had obtained and used the l;1crip, 25 years patent had been issued, andwhell the lands, with the growth ofthe', Cily of Omaha, had risen in value from a mere nominal sum to overa million
460·
of dollars, these plaintiffs, who had done nothing to assist in the development and growth of the city, done nothing towards bringing about the increased value of the land, ask that this enormous property be given to them on the ground that their ancestor was defrauded of the scrip which originally paid for it. If an action at law had been instituted, the statute of limitations would long since have been a bar. Why should not eql1ity follow the law and protect these defendants against this ancient claim? It is insisted that defendants are trustees and that plaintiffs are the cestuis que trust, and that no statute of limitations runs against the enforcement of a trust until lJ,t least the repudiation of the trust is known. This may be true in case of an express trust, Qut clearly there 'Yas none such here. An express trust implies a fiduciary relation conspiously and intentionally entered into by some contract or Ilgreement betweeI?- the parties. But Patrick never intended to act or pretended to themere agent of Sophia Felix., , What he did, even unci in violation of her was done' from the first for himself. and io.his own behalf; The averments in the bill show that he ne,'er took t *.is,scripintending to act as her agent, but that he took it wrongfully, o,nd in violation of her rights. ltia not even alleged that she parted with : this scrip an agent, but the averment is that it was by some .fraudulent prllctices obtained from her,. Defendant had no part in these uXeiit practices. It was through no wrong or fault of his that she was' it;lducedto partwith it. Knowing, as wedo,how land scrip passed in the, Jl?arket, the only fair understanding of the faets as disclosed by the bill is, scrip was wrongfully obtained from Sophia Felix, and placed QD them.arket, and that defendant seeking scrip wherewith to enter this ' land found and purchased this. He took it to use for himself, and not for hell, ,80, ,that none of the elements of an express trust enter into the ,Whether by reason of his knowledge of the fact that the S<triPWIlS inalienable, and therefore still the property of Sophia Felix, arose, it i13 scarcj3ly necessary to determine. There a,'constructive authorities which would seem to deny the existence of any trust llqqerthe circ\imstances as disclosed. Thus. in 1 Perry, Trusts, 144, it is, said: "But if one who stands in no fiduciary relation to allOther appropriates the other's money, and invests it in real estate or other property, results to the owner of the money." Also, see Hawthorne v. ' Br'01un,3Sneed,463; v. Ba!entine, 4 Humph. 233; Doylev. Murphy.,22 Ill. 502; Steele v. Clark, 77 Ill. 471; Weer v. Gand, 88111. 490; qarvey;v· 46 N. Y. 310; Dixon v. Caldwell, 15 Ohio St. 4;12; Camp-: b¢,v, I)r,akej 4 Ired. Eq. 94. Still it must be conceded that other autllorities tend in; the opposite direction, and would hold this to have been, trust. But in such cases equity will recognize the defense ot laches sH1lene8s of clabu. under proper circumstances, and this is a case Whe1'6 it seemS eminently proper to recognize and enforce i such a defense. Under ordinary circull1stancesit does not seem probable that aPy,one;w,ould seriously contend that a. claim so stale could be enforced, that equity wouid take property which had increased so enprmously' iy: . .la.pse of time, and give it to parties wllQ pap"done
or
461
nothing towards such enhancement of value; But it is earnestly contended that a different rule should be applied in this case, because plaintiffs and their ancestors were Indians; that the law is very tender in respect to the rights of such persons, who are not familiar with our laws and methods of transacting. governmental or private business, and were ignorant of the disposition which had been, made of the scrip. And it is also urged that as Indians they were the wards of the government, and could not have asserted their rights to the property, even if they had known what their rights were. It is not shown that they were not persons of education and intelligence, or that they were not in fact familiar with the land laws, and the methods of governmental business, or that they were not in fact as competent to look alter their rights as any persons. We all know that many of these Indians, especially :the are: well educated, intelligent, and as fully competent to look after their business affairs as any persons; and the fact that they were Indians, and maintaining tribal relations, and were in a certain sense the wards of the government, did not debar them from a hearing in the courts of Nebraska. The thirteenth section of the bill of rights of this state reads as follows: "Sec;' IS!' Ali cburts shall 'be open, arid' e'vei·y for'any i'rljuWJbne him in person, or shall,h,ave a remedy by due course of law and justice, administered without ·denil\l 'or delay." person," is its language; so thatth4;l doors of the courts state were'open to these plaintiffs as weUas to any other person whq,had or thought he had any claims to property within this state. As matter of faot Indians are frequent suitors in the courts of the various I recall three cases in the supreme court of my bVVn state, Kansas,:and have no doubt there were many more. In Swartzel v. Rogers, 3 Kan.374, a suit to establish title to half interest in certain lands, and forptlrtition, was maintained by an Indiall. In Jacket v. JohmO$ Co." Id. 299, an action was maintained by one of the chiefs of the Shawnee nation to restrain the taxation of his lands, and 'in Wiley v. Keokuk, 6 94, an action for false imprisonment was also maintained by all rndian. The second of these cases was taken to thesuprern"6 court of the States.. ·The Kamas Indians, 5 Wall. 737. .While the judgmentof,the supreme court of Kansas was reversed, the right of the Indian to the courts oUne state not indeed, it was recognized, for the court say: "It is argued because the Indians seek the courts of Kansas for the preservation of rights and the :redress of wroJ,lgs, som!3thnes. 'volql)tarpy ,RJl9:' 11) :«1ertaill by direction of the secretary of the interior, mit themselves to aUlaws of the stat.e." ' , , .. ..
8:
.
-,
-
·
(I
Further, the Revised Statutes, in section 2126, carries the same plication. It reads: ' "In all trials 'about the right of property in which IInIndian may be on one side. and a white person on the other, the burden of proof shall i'est upon the white person whenever the Indian slJ,all;make out a preslimptiQnof title, in hirnse.lf from the. fact of :previous possession :01' ownership."· ,. 'H'
462
At any time during the last 27 years these plaintiffs or their ancestors could have come into the courts of Nebraska and asserted their rights, and, as this,serip was,of value simply for the entering oflands, they could at any tim l:\, by examining the records at Washington, have ascertained whether it had been used and by whom, and where the land for which it had been used was located,. ,'1'he lneans of knowledge were open be-fore them. They had the right to sue, and the courts would have given them full protection. It would savor little of equity to permitthel1l to come in now and take from these, many defendants, most of whom are innocent of any intentional wrong. property of such enormous value, on the ground that their ancestor 28 years ago was swindled out of scrip of such trifling va]ue,-a million dollars to-day for one hundred and fifty dollars 28 years ago. 1 cannot believe that equity demands or even tolerates this. The demurrer will be sustained.
NEW
YORK
&
BOSTON RAPID TRANSIT
Co. et al.
17. PARROTT fit
al.
(Circuit OOU'l't, D. Oonnecticut. October 23,1888.) A was entered into between the A. L. Ry. ,Co. and the T. Co., In pursuance of which the latter received the controlling interest in the former's ,stock. and paid certain stock. notes. anrl money in return therefor to the A. L. stockholders, andassumerl t!;le building of its road. The 'r. Co. failed to build the roadwithinthe prescribed time. but no tellderof the stock, money. or notcs was marle by the A. L. Co. At an ndjourncd Rnnual meeting, which had been kept alive by successive adjouruments, and at which no business was, anticiJ>llted and the T. Co. was not represente(i" n,ew directors werc, elected. and the company was, by stratagem on the part of the defendants and by 8,urprise. placed inthe hands of non·stockholders, who said that they would pRy tbe debts and build the road. 11e d, that the acts of the defendants "ere in fraud of the T., Co.,. and that an injunction should issue to prevent the ca.rrying out of the arrangement. , PREVEN'l'ED-RESC{SSION OF CONTRACT.
InEquity. On bill for injunction. , The New York & Rapid Transit Compllny'and William M. agaiilst Henry R. Parrott and I!'. W. Parrott. 2d. Hyde,' GroS8 tk Hyde, and L. E. Chittenden, for plaintiffs. S. E. Baldwin, for defendants. I
'This is a motion for a preliminary injunction to restrain tD'edefendahtS from the performance of acts alleged to be fraudulent and prejudicial to the rights of the plaintiffs as owners M a majority of the votdugstock,ufthe New York & ConneCticut Air-Line Railway Company. The said company is a Connecticut corporation, and was incorporated for purpose. of builuing a railway from New Haven to the boundary line between, the.states of New York and Conn,bcticut., The time for the completion of said react will expire on October 22, IH89. This date was estaulished bya resolution of the Connecticut legif:slature, at its January
SHIPMAN, ,J.