1 Fla. 245 | Fla. | 1847
Lead Opinion
This is a suit on an agreement by Taylor to pay Baker $300, “ provided he complies with an agreement made with me for his portion of land, which he is to receive from Government as an actual settler.”
The defence was, a failure of consideration, established, it is alleged, by a deed, the provisions of which are claimed to be in violation of an act of 'Congress. This deed (being the agreement referred to in the note sued on,) is first asserted to be in violation of the act of Congress, approved 4th August, 1842, “providing for the armed occupation and settlement of the unsettled part of the peninsula of East Florida”; but it was not in existence at the date of the deed, and can scarcely be construed to operate on a contract made prior to its passage.
The terms of the deed very clearly refer to an act in force at its date, and as the law granting pre-emption rights, approved 4th September, 1841, is the only one, to which we have been referred, as then in existence, its provisions must be regarded as having been in contemplation of the parties. The tenth section of that law provides, that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void;” and the question is presented, Whether the deed above alluded to, is in violation of this provision ? The law declares, “ assignments of rights secured to be void.” Now, such a right was only to be secured by a corn-
The fair construction of the act would seem to be, that the assignment of the certificate of the Receiver, made after payment of the purchase money and proof of pre-emption, would be void: this would be the assignment of a right secured under, or by virtue of the act, and such the law invalidates.
But this is not the case under consideration. Here, there was no right secured; no money paid to the Government; and no proof of pre-emption. The subject was a bounty, not a right — a thing in ex-. pectancy, which the party agrees not to prosecute, but relinquishes and abandons, leaving it to his vendee to obtain it, if he chooses, for himself. An assignment of a pre-emption certificate, or a right secured under the pre-emption law, is usually very concise and simple, as, indeed, are generally most acts of assignment. Thus, “ for value received, I assign and transfer the within to A. B.” “ The words required in assignments are, grant, assign, and set over.”— 1 Jacob’s Law. Die. 140. 1 Inst. 301.
The deed, under consideration, has not the words “ assign, nor grant, nor set over”: its terms are, “remised, released, and quit claimed, that parcel of land due me, under an act giving a bounty, which bounty I relinquish and convey,” &c. The terms of the deed are appropriate to the transfer of a claim and improvement on the public lands, held under expectancy of a pre-emption, a relinquishment of the right, and a transfer of the possession and occupancy.
This view is confirmed by the 13th section, which provides, “that before any person claiming the benefit of this act, shall be allowed
This view is also confirmed by the fact, that there is no evidence in the record showing that there was any application for a right of pre-emption by either of the parties, or that Taylor expected or relied, in any way, upon obtaining a pre-emption through the cultivation and improvement of Baber. Whilst coming to this conclusion, wé are free to declare, that if there had been proof of anything approaching to turpitude in the transaction, it would have produced a different result.
By the law of the Territorial Legislature, as early as 1822, the sale of improvements on the public lands was allowed and rendered valid, nor was there ever a disapproval by Congress, of this action of the Territorial Government. Duval Comp. 45.
Whilst we admit that there is a difference of opinion in some of the States of the Union, as to the validity of such sales, we desire to express our hearty concurrence in the sentiments expressed by the Supreme Court of Missouri, in the case of Clark vs. Shultz. The objection there, was, that the contract was not in writing, — an objection not prevailing here, — and the Court say, “ We feel the more inclined to .follow the New York decisions, and to leave the settlers free to dispose of their improvements, as of their horses and cattle.
“A man may renounce his possession, and such abandonment in favor of another, is a sufficient consideration to support the contract growing out of such renunciation or abandonment.” 9 Missouri, 866.
We are of opinion, then, that the relinquishment by Baker, of the expected bounty of the Government, the abandonment and surrender of his improvements, and the possession taken by Taylor, of themselves formed a good and valid consideration for the agreement, and were not prohibited by the act of Congress alluded to.
Another ground assumed, is, that plaintiff did not prove that he had fully complied with the agreement. This must allude to the provision, that “Baker shall serve out the time required of settlers bylaw, which entitles them to either donation or pre-emption”: but this provision would seem to be superseded by another engagement attached to the deed, and which is incorporated in the agreement sued on, that Baker was to work for the term of one year, and Taylor was to pay him f 300 for his year’s services and his share of the land, which is considered full payment for the whole.”
The first provision, left the time of service indefinite; the latter, made it certain, and was more favorable to Taylor, as by the preemption law, only a few weeks service was required to entitle a party to'its benefits. But, supposing the first provision in force, we are not prepared to say that there is no evidence to prove a performance; on the contrary, we see little room to doubt the sufficiency of the proof in this respect.
Again, it is maintained, that there was a plea to the second and third counts, which was demurred to; and, as the demurrer was not disposed of, these counts, referring alone to the land, must be regard
The view we have taken of this case, is so strongly fortified by the other testimony in the record, as. to leave us entirely satisfied with the justice and equity of the verdict and the decision of the Court.
The services of Baker for the year, are estimated by one witness at $300, and by one of the defendant’s witnesses at $200 and his clothes, and $300 is the entire1 consideration for the improvement and services, both.
Upon the whole case, we are of opinion, that the judgment be affirmed with costs.
Dissenting Opinion
dissenting:
With due deference to the opinion pronounced in this case, I feel constrained to differ with the majority of the Court as to its conclusions of law, and also as to what constitutes the subject matter and consideration of the agreement, upon which the suit was instituted. It would appear by the evidence in the cause, that on the thirtieth day of May, 1842, Baker executed to Taylor, in substance, the following instrument:
Know all men, that I, John Baker, for and in consideration of the sum of three hundred dollars, to me in hand paid by C. Taylor, have remised, released, and quit claimed, and by these presents do remise, release, and quit claim to said Taylor, his heirs, &c., all that certain lot or parcel of land, to me due by the United States’ Government, under an act giving and granting to actual settlers within the country claimed and possessed by the Indians, a bounty of one hundred and sixty acres of land, which said bounty of one hundred and sixty acres of land, for the consideration .above mentioned, and'by these presents
(Signed,) JOHN BAKER.
“ It is further understood, and by these presents agreed, that I, John Baker shall and will work for the said C. Taylor, for the term of one year, and the said Taylor is to pay me three hundred dollars for his year’s services and his share of .the land aforesaid, which sum is considered as full payment for the whole.”
Simultaneously with this instrument, the following agreement was entered into by Taylor:
“I promise to pay to John Baker, on or before the first day of January, 1843, the sum of three hundred dollars, provided he complies with an agreement made with me for his portion of land which he is to receive from Government as an actual settler, as also for his year’s services. May 30, 1842. “ C. TAYLOR.”
The first of these instruments is inartificially drawn, and somewhat vague in its terms; and where this is the case, it is always difficult to arrive at the true meaning of parties. In construing agreements, for the purpose of ascertaining their intention, we may look at concomitant matters and circumstances, if, by a view of the instrument, they may seem to have had a relation to, or connexion with the subject matter of the contract. Upon an inspection of the paper alluded to, I incline to the opinion, that it was an agreement for land that Baker might have become entitled to, under what is ordinarily termed the armed occupation bill; and I have come to this conclusion, not only owing to the intention fairly to be inferred, as I think, from the face of the instrument, but also that, at the time this agreement was entered into, the bill referred to was before Congress. Its passage was the subject of notoriety and discussion, a theme of general concern to the people of the (then) Territory, and one of peculiar interest to
Besides, Baker agrees “ to serve out the time required of settlers by-hw, which entitles him to either donation or pre-emption, as the case may be.” No time is required by the pre-emption law to enable settlers to make their entries, and I think that the words “ .donation or pre-emption, as the case may be,” convey the idea that there was something contingent or alternative, that there was an uncertainty as to the form or manner in which the bounty of the Government was to be bestowed. If the language of the agreement was intended to apply to the pre-emption act, would it not have been explicit and definite, and alluded to it in clear and precise terms ? The passages I have particularly adverted to, in conjunction with the whole tenor of the transaction^ impress me with the conviction, that the contract was made with a view to the passage of the armed occupation bill.
The views I have thus expressed, I confess I have taken with some difiidence, owing to the difficulty I have before alluded to, in ascer
If I am correct in the view I have taken of the subject, the contract between Baker and Taylor, even if legal at the time, became illegal by virtue of the “ act to provide for the armed occupation and settlement of the unsettled part of the peninsula of East Florida,” for by the fourth section of that act, it is declared, “ That all sales, gifts, devises, agreements, &c. to sell transfers or liens, whatsoever, pri. vate or judicial, of the lands or any portion thereof acquired by this act, made at any time before patents shall have issued for the same, shall be utterly void and without effect, to every intent and purpose, whether in law or equity.” Even if the contract had not been illegal at the time, as I have before remarked, and became so after-wards by act of law, still it cannot be enforced. 10 East. 530. 3 M. and S. 267.
If, on the other hand, I am wrong in the view I have taken of the contract, and it does relate to the pre-emption law, still, I think, the action should not have been sustained, if being void for want of a good and legal consideration. A portion of it being founded on an illegal consideration, and the contract being an entirety, the whole of it becomes illegal.
There was clearly not the least shadow of title to the land conveyed, or agreed to be conveyed to Taylor, and the bare and naked improvements made by Baker, were all which were pretended to be conveyed. There are authorities which certainly go the length to say, that the sale of improvements on public lands, is a good consideration for a promise; but I agree with the opposite decisions, thinking they are founded on the true notions of law and public policy.
In Merrill vs. Le Grand, 1 Howard Mis. R. 150, it was decided, that a promissory note given in consideration of the purchase of an improvement upon vacant government land, is for an illegal consideration, and cannot be recovered.
Persons settled upon the lands of the United States, without a right of pre-emption, are made trespassers, and an agreement to transfer their possession would be an agreement for the continuance of a trespass, and would be illegal and void.
These sales, or transfers, are clearly against the policy of the statute, which seems to have had for its object the protection of bona fide settlers from the grasp or imposition of capitalists or speculators.— Among the requisites as prescribed by the pre-emption law of 1841, is that the party,«before claiming the benefit of the áct-by entering the land, shall swear that he has not entered upon and improved the land to sell the same on speculation, hut in good faith to appropriate it to his own exclusive use or benefit. Any attempt to contravene the policy of a public statute, should not meet with the aid of law to give it success, or enforce a contract which may be the result of such intended contravention;' The statute of 1841, declares, “that all assignments and transfers of the right hereby secured,” (that is,, after the' requisites of law have been complied with) prior to the issuing of the patent, shall be null and void.” If these transfers, even after the right is secured, are void, I should suppose also, that transfers and assignments without the right secured, would be equally so. All these pre-emption rights are mere bounties to settlers, to encourage the settlement of the public domain. They would seem to be privileges confined to the person, and incapable of assignment, so as to form a legal consideration for their sale or transfer.
The various States may certainly legislate as to the remediies in their own tribunals, and regulate the disposal of the property'of their own citizens; but Congress, by the Constitution, has the sole power of disposal of the public lands, and of making all needful rules and regulations thereto. See 13 Pet. U. S. R. 498.
I cannot perceive, therefore, how a State enactment can regulate the sale of portions of the public domain, or legislate in regard to rights growing out of it. And, in point of morals, I can see no differ
I deem it my duty, upon this occasion, further to remark, that I cannot assent to the proposition so broadly laid down, that “ the Court would lose its appropriate office of an appellate tribunal by deciding, originally, questions never raised in the Court below, and which, if presented, would perhaps have been correctly decided there.” The case is before us upon the errors apparent upon the record; but I do not propose to discuss this question in reference to its bearing upon the case at bar, but to manifest my dissent to it as a general proposition, which, as it is laid down, may reach all future cases, and preclude this Court from looking into any error not presented in the Court below, although that error might shew that the cause of action had entirely failed. Such an error, if presented in the Court below, if is to be presumed would have been corrected there; but ifj because in the hurry of a trial at nisi prius, it has escaped the attention of both the Counsel and the Court, are we precluded from deciding it here 1 In the case of Powell vs. Waters, 8 Cowen, 701, Spencer, Senator, said, that, “ If the foundation of the action had manifestly failed, we cannot, without shocking all common sense of justice, allow a recovery to stand.” And it is worthy of our serious consideration, how far we can constitutionally disregard a manifest and palpable error on face of the record which is presented to us, whether that defect has been pointed out in the Court below, or insisted upon in this Court, or not. As was remarked by the Judge, who gave the opinion of the Court, in 14 John. R. 501 — 517: “ The object of Counsel is to aid the Court in its investigations, and it would be strange if the Court were bound to shut their eyes upon every point not suggested by them — it would make the rights of parties depend more upon the vigilance and ability of Counsel, than on the law of the land.” Judges must decide according to the law; and if it is not presented to them by Counsel, or their attention is not called to the true points of a case, still, if they themselves discover those points, or ascertain the law, they are bound by their obligations to pronounce it. In the case of Baird & Co. vs. Mattox, 1 Call, 257, the Court said: “ If the defendant is sued as heir, or devisee, and pleads that he has no assets by descent, on which plaintiff takes issue, and verdict be found for the defendant, a repleader will be awarded (by the Appellate Court,
There can be no doubt (said Mr. Justice Woodbury, in delivering the opinion of the Court in the case of Garland vs. Davis, 4 Howard S. C. R. 143,) that exceptions to the opinions given by Courts below, must be all taken at the time the opinions are pronounced. But it is equally clear, that when the whole record is before the Court above, any exception appearing upon it can be taken by Counsel, which could have been taken in the Court below, and the case of Roach vs. Hulings, 16 Peters, 319, is cited, which sustains the first proposition.
So, it is the duty of the Court to give judgment on the whole record, and not merely on the points started by Counsel. Slacum vs. Pomeroy, 6 Cranch, 221. 16 Peters, 319, Garland vs. Davis, 4 Howard S. C. R. 143. In the case of the United States vs. Burn-ham, 1 Mason C. C. Reports, 62, the Court alone took notice of the defect, which was the sole ground of its opinion; and Judge Story, who pronounced the opinion of the Court, said, “ The Court must pronounce upon the whole record”: and in the case of Patterson vs. The United States, 2 Wheat. 221, Justice Washington says: “ The Court considers it unnecessary to decide the questions argued at the bar,-as the verdict is so defective, that no judgment can be rendered upon it,” and upon that account the proceedings below were reversed. Harrison et al vs. Nixon, 9 Peters, 483 — 535, is also in point, and see Stephens on this doctrine.
in the case of Slacum vs. Pomeroy, 6 Cranch, 222, before cited, Chief Justice Marshall said : “It is not too late to allege as error in this Court, a fault in the declaration, which ought to have prevented the rendition of the judgment in the Court below.”'
I have thought proper to be thus prolix, lest I might, by my silence on the subject now, be precluded in a future case from noticing a vital error in the record, merely because it was not presented in the Court below, and which, from the views I entertain of my constitutional duty, I should not feel at liberty to disregard.