eredlto the iJilteresfedrparty:as his,av,idence,dftitle.·, )'llhe was issued in 1823,ttnd certified ,copy 'made ,byPila.r, ,del Laso, second alclildeJ()f Paso ,del Norte, in 1852. and delivered, to, the plaintiff,' who. at Iawdfthe ,original grautee JoserLerma. The, title ex. would seem to, be ratbera-second: or subsequent copy of the origirial, 'buts determmation of this question; and to be given a seOOnd copy,becOmes unimportant in view of thlUl,greed statement of faCtsf' See; Escriehe, Title Verbo-Instrumento, 891.'11II.;, Houstoo v. Blythe, 60 Tex. 513,514; vo Preston, 65 Tex. 457-459; Btate':v..'Ca'l'dinas, 47'Tex. 290, 291;, Pa8chal v. 7,Tex. 360-363; Herndonv. Casiano, Id.332, 333; Wor&,v. Tex. 268, 270. ,31111n view of'the concession made by defendant's counsel and the miBsidns of ,defendant;lllsembodied in the first, Sedbnd,. third, and fifth . findings 'of: (act, tHe grant to Jose Lerma" for the pUI1poee of this suit, and as'betlteen the partiesthereto,will be assumed to, ba,a ,valid,grant, as originally, extended and oonfirmedby the Mexican authorities. As to presumptions which may be indulged touching the regularity and ity of the acts of officials under a former, reference is made to the following authorities: Gonutle8v. Ross, 120 U. S. 619, 622, 7 Sup. Ct. Rep. 705; Johns v. Schutz t 47 Tu.,582; Clark v. Hills, 67 Tex. 144, 145 t 2'S. ,W. Rep. 3.56; Jones v. MuiBbach, 26 Tex. 237; Jones v. G(Lrza, 11 Tex. 206....209; Jenk:i.nsv. Chambers, 9 Tex. 235; Hancock v. McKin"my;: ,7 Tex. 442, 443; Holliman v. Peebles, 1 Te:lt.698..,.702; Uhl v. Musquez, Tex.' Unrep.Cas. 655, 656 ·. 4. The registratiollin the land-office of the Spanish document styled "te8timonw" did 'not constitute the paper an archive of said office. Paschal 355..,.360;!Hel""(l.don v. Casiano,ld. 333, 334; Rev. St. Tex. arts" 57-59; Hatchettv. Ganner, 30 .Tex. 110,; Dikes v. Miller, 11 101, The constitution of 1876 (article, 13, § 4) prohibits the deposit .of plaintiff's claim of title in the land-office, and it further provides that'cluims of that class shall not be "reCorded in this state, or delineaMdon .the map8'j or. :usedas evidence in any of the courts of this sw,te, an'd the same are stale claims; but this shall notatfectsuch rights 'or presiimptions as arise from actlilalpossessioil." Under this provision "Of the: cdnstitu.,tion thedepoait of the paper in· the ·land-office conferred no additionalmights upon the plaintiff. It neither enhanced ishedthe \lalueofhis ! The act of depositing it there was·simply a nullity, lUI well las its registration, in the records of: EI Paso county; and a certified copy,of such title Bodeposited in'theland-office, or registered in"the recoidsof admissible in 'evidenoe. See foregoing authorities. 5. Plaintiff is not in actual possession of the land embraced in the grant:, .siQce 1861;; ,and it is a matter of his actual p,()§ls,ession"lluchas the.law Cbute:Qlplales, did not :1849 or 181)0. The fact .thatplaintiff orhiaan. hadcattle over th l.grant, 50 leagues in extQnt, afford, DO he. owned or. it. Ar(/U'r
. .171.
G. Although the registration of plaintiff's title in the land-office is a. nullity, and n'otwithstanding his want of aetual possession of the land, the execution of the title-papers is admitted and they are therefore admissible in evidence without further proof, unless their exclusion should be demanded by article 13, § 4, of the constitution.: Thegrant,peing 'admitted to bea valid grant, is within the protection oithe treaty of Guadalupe Hidalgo and the constitution of the United States; arid,]t not competent for the state to nullify it, as a stale claim, without judIcial inquiry, or to prohibit its use as evidence. Treaty' of Hidalgo, ark8,and second clause oqhe protocol. St. D. to Public Treaties," 496,502; Const. U. S. I,§ 10j Canst. 14th amend. § Ij Railway 00. v. Locke, 12 S. W. Rep. 80, Sup. Ct. Tex., Austin Term, 1889. See, also,Brownsville v. Cavazos, 100 U. S. 142, 145; Davis v. Gray, 16 Wall. 232j Osborn v. Nwholso'll, 13 Wall. 656, 662; Gonzales v. ROBS, 120 U. S. 629, 7 Sup. Ct. Rep. 70p; Wa1kerv._ 16 )Vall.317, 318j Va'{lC6 v. Vance; '2 Sup. Ct. nep. 854jEd1l'ards v. Kearzey, 96 U. S. et Beg.; 'Wol,ff'Y. New Orleans, 103 U. S. 367,368; (}ri;gsby v. Peak, 57 'Fex. 147; -Cooley, Cbnst. top p. 446, andpp. 453, 454. Thoe title-papers are therefore admissible in evidence. 7. The defendant has not obtained a patent from the state to the land which he seeks to appropriate under the pre-emption laws. :"The iBW t?6 illsuance a ,patent ,as the towards ing the state's tItle. 'Rev. St. art; 3930. ,The defendant has,. t.herefore, a Illere'equitable title, originating in 1887; which cannot availhhn in a suit at lll.was against the.Jegal title asserted by the'plaintiff; In aHhe supreme court: "In actions ofejectrnent in the-Uriited States courts the strict legal title prevails. If there are equities whieh would show the right to be in another, these can only be considered on tbeeql1ity side of the federal courts." Fosterv. Mora, 98 U. S.- 428; Singleton v·. Touchard, 1 Black, 344, 345; Hickey's Lf!88ee v. Stewart,S How: 7159; 760jatetr'v. Mezes, 24 lIow.2V4 et seq.,' Steel v. Smelting 0'0.,106 tT.'S. 452, 1 Sup. S89. . ". ' , 8. Judgment will be rendere,d'infavor of the plaintiff for the reco\l"ery ofthe 160 acres of land sued for' and described in his petition, and; all costs of suit. The conclusions here announced are expressly limited tothe facts of this case as agreed upon by the parties.
art.
or rex.
360
I'EDERALBEPORTER,
v<>l. 40.
In re
HERDIC. October 98, 18811.)
(Df.8trf.ct Oourt, W. D. pennsybvan'ta.
B.llUBt:rPTCy-SALlIl-RESOISSION OF ORDER OF CONll'IRMATION-P,RACTYClIl.
Af;ter a bl'nkrupt h.ad obtained his dis<;harge, under an ord,er of court made upon tllepetition of his assignees, a cJ.ai l1l of the bankrupt's el;\tate against one R. was 8,Old, atpnblic auction, which sale ,was ilOnfirmed by the court, and the proceeds dis. tributed, among the' credi0rs. More than four years thereafter, the bankrupt baving in the mean time died, a who had participated in the distribution presented a petition setting forth that the purchaser of said claim bought the same ,In trust for:the bankrupt, and that the transaction was a concealed fraud upon the creditors, and praying thattbe administrator of the bankrupt be required to show cause why said purchase shOUld nQt be declared fraudlllent, and the sale set aside. Held, thP;1i thS bankrupt court, afteJ;' thelapse of time, upon a mere rule upon the administratQr to show cause, could u'ot proceed in a summary way to rescind the order of confirmation and set aside the sale, but the petitioner's remedy was by a plenary spit.
In Bankruptcy. " , . .Sur petition of the Metropolitan National Bank, and rule on James P. HerdiQ, ,administrator of Peter deceased, to show cause why the purchase .l:>y Frank L. Herdic .of a claim against John G. Reading should not be set aside. Wm. for rule. Wm; 8. Stenger, contra. ACliESO.N, J. The a;nswer.ofJ.ames P. Herdic, administrator of the estate of PeterlIerdic, deceased, to the rule to show cause, etc., raises a question whichwas:not discussed much, if at all, at the hearing, the arguments ,of counsel being directed to other questions of law, and t,Q"the merits of the controversy, but in the course of my investigation the question of juri.sdiction has assumed a controlling importance. The facts upon which it arises are these: J>eter Herdic, the bankrupt,waegranted a discharge on February .18,1880. On July 28,1883, upon the of his assigneeslin bankruptcy, an order wasmade for the sale at public auction of the claim,of the bankrupt's estate against John G. After dqepublic notice such ABIEl took place, and Frank L. ;Herdic became the ,purChaser, for the price of $3,000. By an or<blfof! (lOurt made September 12, 1883,the sale WIlS confirmed; and soon thereafter the purchase money was distributed among the creditors of the bankrupt, the Metropolitan National Bank, the present petitioner, receiving its pro rata share. Thus the matter rested until May I, 1888, Peter Herdic having died in the mean time. On the date last mentioned said bank presented its petition, setting forth that the said purchase by Frank L. Herdic was made in trust for Peter Herdic, and that, for reasons set out, it was a concealed fraud upon the bankrupt's creditors, and praying that James P. Herdic, administrator of Peter Herdic, deceased, be required to show cause why the said purchase should not be declared fraudulent, and the sale set aside; and, accordingly, on July 20, 1888, a rule to show cause was granted upon the administrator. Can the court, sitting in bankruptcy, at this late day, upon a mere
THE NICANOR.
361
rule on the administrator, proceed in a summary way to rescind its order of confirmation of September 12, 1883, and set aside said sale? This According to the question r am constrained to answer in the general rule, the lapse of time here, (If itself, would debar summary relief, and require a resort to a plenary lluit. Br(YTl8(YTl v. Schulten, 104 U. S. 410; Phillips v. Negley, 117 U. S. 665,6 Sup. Ct. Rep. 901. Even where a decree in equity is obtained by fraud, the appropriate remedy, after the expiration ofthe term, is by a bill ofreview. Terry v. Bank, 92 U. S.454. Jf it be conceded that a bankrupt court has power to alter or amend its records until the proceeding is formally endect, still, it by no means follows that, for matters dehor8 the record, the court may Summarily vacate a sale regular on its face, years after final confirmation and the distributioDof the proceeds. Again, Peter Herdic was free to purchase at the assignee's sale, (Traer v. Clew8, 115 U. S. 528, 6 Sup. Qt. Rep. 155;) .and he took title that an entire stranger would have taken. That title has become vested in JamesP. Herdic, the administrator of the estate of Peter Herdic. The administrator is ,nota party to the proceedings in bankruptcy, and, therefore;histiile . cannot be adjudicated by the bankrupt court upon a rule to show.cause. Smith v. Ma8on,14 Wall. 419; Mar8hall v. Knox, 16 Wall. 551. -ILhis title is impeachable for the cause alleged , the remedy is by a plenary suit. Id. This is not a question of cohvenient practice. The interestsheIie involved are very large,--of such value as to bring the controversy within the appellate jurisdiction of the supreme court. But, under thisprQceeding, the administrator, in the event of a result adverse to him, would be deprived of his right of appeal to that tribunal. Stickney v. Wilt, 23 Wall. 150; Nimidk v. Coleman, 95 U. S.266. It is worthy of remark that in each of the two cases (Clark v. Clark,17 How. 315, and Phelps v. McDonald, 99 U. S. 298) here cited to sustain the impeachment of the 'sale to Frank L. Herdic the complainant proceeded by an originalbiU in equity; and this, in my judgment, is the proper mode of procedure in the present case. Rule to show cause discharged, without prejudice to the petitioner's right to proceed by a plenary suit.
THE BRITISH & FOREIGN MARINE INS. YORK MUT. INs. Co. 'V. SAME. MARINE INs. Co. t1. SAME. . (Df8trict
NICANOR.
Co., Limited, t1. THE NICANOJ\. PHIPPS et ale t1. SUlE.
NEw
Oourt, 8. D. New Yot1c. Ootober 24, 188G.) PAYMENTS.
1. I.'
Payments voluntarily made cannot be recovered back upon grounds which would have constituted a defense, and were known to the plainti1r at the time of .payment. BWPPING-AVERAllcE BOND-VOLUNTARY PAYMBNTS.
The bark N·· having stranded 'on the Jersey coast, was got off by a wrecking company, whose salvage was Axed by a board of underwriters at $lI5,OOO.· The
,
.
THE MeANOR.
885
tbe same as on the present trial; and no additional evidence of negligence now appears. It was from two to four weeks after tbe award that the libelants' payments were made. During this interval tbere was ample opportunity for them to determine whether to seek to hold the ship liable for negligence or not. After this opportunity, they voluntarily transmitted their checks to the ship's agents in payment and settlement, pro tanto, of the claim for salvage contribution, even without any formal demand. The rule cited has. of course, no application to independent demands that may be counter-claimed or offset or recouped against each other; such as a claim for freight by the ship, on the one side, and a counter-claim for damage to the cargo by the ship's negligence, on the other. In sucq cases, each party has his option as to the time and mode of litigating his demand. Here there were no such independent demands or causes of action at the time the payments were made. The libelants urge that their causes of action are essentially for damages on account of the negligence of the ship in stranding, which imposed upon the cargo owners an obligation to pay their contributory shares of the salvage. But there was no physical damage to the cargo. The only damage to the cargo owners was a possible liability to pay a salvage contribution. As respects the right to, recover in this action, that liability is to be judged, not according to what might have happened as a consequence of the stranding, but according to the circumstances as they actually existed at the time when the paywelltswere made, viz., frQm September 25th to October 5th. If, at that time, the cargo owners were under no legal liability to pay any salvage CODtribution, as I find the fact to be if the stranding arose through negligence, then there was no legal damage, and the payments would be yoluntary, in the legal sense, and cannot be recovered There is no question that the wrecking company, in the /l.bsence ,of any other agreement, might have held the vessel and cargo,either in .their own possession,orunder arrest by suit in rem" until the ship and cargo owners had either paid or secured their respective shares; and, on such payments the amounts paid could doubtless have ,back from the ship,if the stranding was caused by her negligepce.But the circumstances here are quite different. Before the salvage ·service was begun, the master, on September 2d, agreed with the wrecking company that the latter should "assist the vessel nowin distress, and leave the amount of compensation to the New York Board of Underwriters, binding himself and owners to abide by said award." Thewrecking company relied upon this agreement. Nopersonin its behalf accompaaied the vessel beyond qjlarantine; no possession of vessel ,or cargo was was instituted; and, two days after arrival, maintained; no the master performed his agreement by paying the salvors in full, through the ship's agents, who, upon his order and request,advanced the money for such contherefor. Thereupon the ship had;a lien upon the tributory shares as, .under .the facts oftbe case,. the cargo o:wners might he bound if aqytllillg; if the spip had' reqqired payment 01
40.
fdeliirl:iry 'of the cargo, the owners Could have recov;;' eredbllclt' thesu.ms paid in orderto obtain· their goods, up<>nproof that stranding was by negligence. But there was no such detention ·of It' Was d.elivel'ed. u·pon the exectition of the usual. average bond.. Any possibl.e lien upon the gOods was thereby discharged; and thereafter the only existing claim against the cargo owners was a money deniand;fi6cordingtt> the terms ofthe'l)ond, for such sums, when· adjusted by CurrieandWhitney,as "might be shown to beacharge upon the ca'rgo.'''' If, as the libelants allege; the stranding was caused by negligence; then no "charge upon the cargo" existed in favor of the ship, at of her· owners,. representatives', or agents, for any contribution towards the sal\Tage award that she or they had paid. Such negligence would have been a petrect defense to any action which the master, owners, or ship's agents mIght have brought, either against the goods in rem, before delivery, oragll.inst the owners in personam upon the average bond. Goutl. Gen. A.,. 15; Snow v; Perlci?UJ, 39 Fed. Rep. 334; TM Ontario, 37 Fed. Rep. 222, et i?ifra. The general intent of the bond is to stand as a substitute for the goods; not to commit the cargo owners to the paymerit of the 'sum adjusted, whether justly owing or not. The bond is not to be cdnst'rue'd as a submission toal'bitration before the adjusters; much less to preclude the cargo owners from any legal defenses against the payment o'fthesalvllge apportiomriellt, wholly or in part. It was perfectly'coinpetent for them to show that,by reason of the ship's neglineither owners nor her agents could recover anything on the The Niagara, 21 How. 9; :The Alpin, 23 Fed. Rep. 815, 819; ):IAmerique, 35 'Fed: Rep. 885, 837. As the facts constituting the al'leged d(;jfense were known before the payment, th(;jlibelants were bound to avail themselves of this defense at the time; and, having paid without any constraint, are barred from a subsequent recovery back. I cann6t Bustainthe contention that J .F.Whitney & Co. stand as independent assignees of the salvors' lien.' There was no such assignment. payinentwas made to discharge the saIlors' lien, not to preserve it. 'They did, indeed', act in the interest,and:forthe benefit of all parties; but .only in the same sense liS the master acted in the general interest. It 'was 'forthe interest of vessel and (largo alike that the claim of sal should without litigation, and without the detention and de'lays incident to the arrest of the ship and cargo. The vessel was a foreign one, beJonging inNova Scotia.J;F.· Whitney & Co. were het con'signees and agents. All the papers' in the case, the receipt taken on paying the wrecking company, and the bond taken from the cargo own'eis, as welhis the testimony, show that they acted expressly as "agents 'of the ship Rnd owners," undon the master's directiOn. Their acts were 'legally of their principals, the owners of the vessel. The insurersalso specially iOsil'led that·Whitney & Co. had no authority to pay 'iri'their behalf.. For their advancesilporlthe master's order to pay the .Whole salvage, they had a claimand'l'ight of action against the owners, . whether the cargo paid its share,' or' not;blit '·. toey had no lien on th.e ship, as against theirprincipals;: "The Estebcm, 31 Fed..Rep. 920; White
367 v. Arnerir.u8, 19 Fed. Rep. 32 Fed. Rep. The bond taken was properly enough taken in their mvnnames, as agents of the owners, because they had advanced the money as SU9h agents. Their taking such a bond from the cargo owners is wholly inconsistent that in advancing the money they acted at. all as the with agents (lftbe latter. They plainly agents of the ship: and owners only. The latter were the principals. They, and not Whitney & Co., alien on the cargo until its delivery. Had Whitney & Co. paid as agents of the eargo owners, neither the ship nor her owners could hav.e held anylien thereafter on the cargo, nor have refused immediate delivery, eVen without any bond; and any bond given must have been given W Whitney & Co. individually, and simply for their personal reimburse.ment. But the bond,on the contrary, is given to them as "owners or agents of the vessel." In any suit therefor, brought upon the bond', whether in the names. of .the agents or of the principltls, precisely the defenses, such as of the ship, could be interposed. No reasons are why the rule as to voluntary.payments should not be applied to maritime transactions as much as in other cases.. The reasons in favor of tbis rule as respects actions in r,ern are even stronger .than in ordinary cases; Jor implied liens are not favored, except in so ,far as they stand upon the grounds of commercial convenience or aity, which cannot be pleadeJ in favor of actions like these. To recognize an implied lien. fQr ,the repayment of moneys voluntarily paid would ,tend, to the ,prejudice and insecurity of subsequent bona fide purchasers .a.nd incumbrancers; since such a lien, if sustainedatall, would e4ist for ·8 rE;lasonabletime to enforce it. These risks ought not.to be increased ()r multiplied except upon strict In this very case,. the char.terer,after these payments, took the ship into possession, put her up as 8 general ship, and received, a large amount of cargo, before these demands. Were the vessel to be held, and her owners prove sponsible, the result would be a heavy loss inflicteQ. aD the chll,rtererfor ·the benetit'ofthose who had voluntarily paid a demand without :raising objections, which, upon their present. contentioll t constituted a known .' defenae, .The. claims now made COme too late. The libels must be dis:missed, with costs.
CROSBY' 11.
THE LILLIE.·
(DWrfctCourtiB. D. AUtbama. Mayll,I889.)
1.
MARlTIM1l LJENS-WAGES-DISCHARGE BY BALE OF VESSEL milDER EiECUTION;
A sale by the sheriff of a vessel under execution for debt against the owners does not divest paramount liens, such as the claim for wages of a seaman not guilty of laches. His standing by at a sheri1f's sale of the vessel without lfiving notice of his claim does not prevent a sailor from afterwards enforcing his hen in admiralty against the vessel.
i.
SAME-ESTOPPEL.
JReported by Peter J. Hamilton, Esq., of the Mobile bar.