No. 1,603 | 8th Cir. | Sep 4, 1902
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The release of the ties to the defendant by the government by its authorized agent, Abbott, in writing, August 3, 1898, and the defendant’s written agreement of the same date that he would pay for such of the ties as the government was entitled to be paid for, when the number of such ties and the amounts to be paid for them should be ascertained as therein provided for, constituted, together, a valid contract, and then transferred to and vested in the defendant all the title and property right which the government then had in the ties. U. S. v. Teller, 45 C.C.A. 416" court="8th Cir." date_filed="1901-01-28" href="https://app.midpage.ai/document/united-states-v-teller-8743164?utm_source=webapp" opinion_id="8743164">45 C. C. A. 416, 106 Fed. 447. While this contract on the part of the defendant was wholly executory, and to be performed in the then future, on the part of the government, it was wholly executed and performed on the delivery of the written release, so far as vesting in the defendant the government’s title to the ties was concerned. About that matter the government did not stipulate that it would do or refrain from doing anything further. There was not, therefore, and could not be, any breach of the contract in respect to this matter, as to which the contract had been fully and irrevocably performed. The subsequent action of replevin may have been wrongful and baseless, but it was no breach of the contract, and was in fact defeated by that contract, and the property rights which it had vested in the defendant. As the defendant in that action, because of his title derived through that contract, recovered judgment against the government for the value of the ties replevied, there was no failure of consideration, to excuse nonperformance of the contract on his part.
Some of the rulings respecting which error is assigned may be disposed of very briefly. The record discloses nothing improper in the rulings of the court in fixing the time for the trial of the cause, and denying the defendant’s application for a continuance, and no prejudice to the defendant appears to have resulted from either.
The testimony of Mullison, who acted as defendant’s superintendent, respecting reports of foremen as to the number of ties cut at different places, was harmless, in view of the admissions in the case, and testimony of other witnesses, including the defendant.
It seems needless to say that no proof of a custom to cut and. remove timber from public lands will shield a trespasser, and that
Other assignments of error are based on the court’s charge to the jury to the effect that the defendant was liable for the value of the ties cut from the Mullison placer tract. The court charged the jury that:
“Mr. Mullison had no right to sell the timber not necessarily taken down in the ordinary working of the placer claim as a placer mine, and the defendant had no right to purchase it from him until a patent issued to him for the land.”
And in other portions of the charge, to all of which exceptions were duly taken, the court gave the jury the same directions, in substance. Upon these exceptions to these parts of the court’s charge arises the only serious question in this case.
In Teller v. U. S., 51 C.C.A. 230" court="8th Cir." date_filed="1901-12-30" href="https://app.midpage.ai/document/teller-v-united-states-8746409?utm_source=webapp" opinion_id="8746409">51 C. C. A. 230, 113 Fed. 273, it was held, and very clearly demonstrated, that'this defendant was properly convicted of a misdemeanor, under Rev. St. 1878, § 2461, for cutting and removing these very ties from this Mullison placer tract, between January 5, 1898, when Mullison filed in the local land office his application for a patent for that tract on payment of $2.50 per acre therefor, and June 22, 1898, when he actually made full payment for the land, and obtained the receiver’s certificate receipt entitling him to a patent therefor. During this interim when the ties were cut and removed, Mullison was in lawful possession of the placer tract, with an option contract with the government, permitting him to purchase the tract with the timber and whatever else was parcel of the tract on January 5, 1898, upon payment of the designated purchase price within the proper time. But until such purchase was completed by payment of the purchase price, the land continued to be part of the public lands of the United States, and only segregated from other public lands to the extent that Mullison’s option right to acquire the title would, while it existed, prevent entry or' valid claim from being initiated by any other person, but did not vest in Mullison any dominion over the land in excess of what he had by his location and working of the tract as a mining claim. He was, before making payment for the land, amenable for any waste or spoliation of the timber, and could grant no valid license to the defendant to cut the timber. Defendant was therefore guilty of criminal misdemeanor, and his guilty act was complete when he cut and removed the ties; and no change in the title to the land or the timber or ties by any act subsequent to the cutting and removal of the ties, when all title, legal and equitable, was in the government, could condone or wipe out the guilt of the completed misdemeanor, although a
“It may be conceded that the payment for the land conferred upon Mullison an equitable title to the same, which entitled him to a patent, and that he was not required to wait for the actual issue of a patent, converting the equitable right into a legal title, before exercising all the incidents of ownership. We think this is the law as established by the authorities. Witherspoon v. Duncan, 4 Wall. 210" court="SCOTUS" date_filed="1867-01-18" href="https://app.midpage.ai/document/witherspoon-v-duncan-87768?utm_source=webapp" opinion_id="87768">4 Wall. 210, 18 L. Ed. 839; Stark v. Starrs, 6 Wall. 402" court="SCOTUS" date_filed="1868-04-18" href="https://app.midpage.ai/document/stark-v-starrs-87931?utm_source=webapp" opinion_id="87931">6 Wall. 402, 417, 18 L. Ed. 925; Deffeback v. Hawke, 115 U.S. 392" court="SCOTUS" date_filed="1885-11-16" href="https://app.midpage.ai/document/deffeback-v-hawke-91459?utm_source=webapp" opinion_id="91459">115 U. S. 392, 405, 6 Sup. Ct. 95, 29 L. Ed. 423" court="SCOTUS" date_filed="1885-11-16" href="https://app.midpage.ai/document/deffeback-v-hawke-91459?utm_source=webapp" opinion_id="91459">29 L. Ed. 423; Cornelius v. Kessel, 128 U.S. 456" court="SCOTUS" date_filed="1888-11-26" href="https://app.midpage.ai/document/cornelius-v-kessel-92350?utm_source=webapp" opinion_id="92350">128 U. S. 456, 460, 9 Sup. Ct. 122, 32 L. Ed. 482" court="SCOTUS" date_filed="1888-11-26" href="https://app.midpage.ai/document/cornelius-v-kessel-92350?utm_source=webapp" opinion_id="92350">32 L. Ed. 482; Railroad Co. v. Whitney, 132 U.S. 357" court="SCOTUS" date_filed="1889-12-09" href="https://app.midpage.ai/document/hastings--dakota-railroad-v-whitney-92610?utm_source=webapp" opinion_id="92610">132 U. S. 357, 361, 10 Sup. Ct. 112, 33 L. Ed. 363" court="SCOTUS" date_filed="1889-12-09" href="https://app.midpage.ai/document/hastings--dakota-railroad-v-whitney-92610?utm_source=webapp" opinion_id="92610">33 L. Ed. 363; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S. 428" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/benson-mining--smelting-co-v-alta-mining--smelting-co-93393?utm_source=webapp" opinion_id="93393">145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/benson-mining--smelting-co-v-alta-mining--smelting-co-93393?utm_source=webapp" opinion_id="93393">36 L. Ed. 762; Bardon v. Railroad Co., 145 U.S. 535" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/bardon-v-northern-pacific-railroad-93405?utm_source=webapp" opinion_id="93405">145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/bardon-v-northern-pacific-railroad-93405?utm_source=webapp" opinion_id="93405">36 L. Ed. 806; Bogan v. Mortgage Co., 11 C.C.A. 128" court="8th Cir." date_filed="1894-09-10" href="https://app.midpage.ai/document/bogan-v-edinburgh-american-land-mortg-co-8850589?utm_source=webapp" opinion_id="8850589">11 C. C. A. 128, 63 Fed. 192. And the contention of the government in this case to the contrary is not well founded. The foregoing cases are, however, no authority for the proposition that lands ,cease to be public lands, or that a claimant secures an equitable right to a patent, until all the acts are performed and all the money is paid by the claimant, which are made by the law prerequisite to securing the legal title.”
As stated, the application of Mullison to enter the land, and receive a patent therefor on payment of $2.50 per acre, when accepted at the land office, January 5, 1898, constituted a contract on the part of the government to sell him the land as it then was,—standing timber included,—and convey him the same by patent on the payment by him of that price within the proper time. To his previous possessory right as mining claimant was then added his right as purchaser. This gave him no right, before full payment, to commit Waste or lessen the value of the land while it still belonged to the government, by denuding it of its timber. But when he made full payment, June 22, 1898, and obtained the receiver’s certificate voucher for such payment, he became the equitable and potential owner of the land, and of everything that was parcel of it on January 5, 1898, when the contract of purchase was .made. His title, when completed by payment, took effect, under the equitable doctrine of relation, from the date of his contract of purchase; and he could have maintained an action of trover for any timber removed from the land by a stranger between the time of the making of the contract and obtaining the title. Heath v. Ross, 12 Johns. 140" court="N.Y. Sup. Ct." date_filed="1815-01-15" href="https://app.midpage.ai/document/heath-v-ross-5473492?utm_source=webapp" opinion_id="5473492">12 Johns. 140. “Where there are divers acts concurrent to make a conveyance, estate, or other thing, the original act shall be preferred; and to this the other act shall
In U. S. v. Ball (C. C.) 31 F. 667" court="U.S. Cir. Ct." date_filed="1887-08-05" href="https://app.midpage.ai/document/united-states-v-ball-8126094?utm_source=webapp" opinion_id="8126094">31 Fed. 667, one Green entered a tract under the homestead act in November, 1880, and paid the fees. He made final proof in January, 1886, and received his final certificate, entitling him to a patent. In the meantime, while he was holding the land under the act, and before making final proof, he had cut from the land and sold to defendants, who had knowledge of the facts, 239,680 feet of logs; and the government brought suit to recover the value of the logs. Held, that it could not maintain the action, because when a vendee has fully completed his contract of purchase, and becomes entitled to a deed of the land, he is no longer liable for any waste which he has previously committed thereon. The court added:
“But it has been suggested that the defendants having received this timber from the settler and converted it to their own use while the contract of purchase was only partly performed, and the land belonged to the United States, they are liable therefor. Under the circumstances, they certainly took the chances of Green’s complying with the law and obtaining the certificate. But if the performance of his contract and the issue of the final certificate relieves Green from liability for cutting and removing this timber when and as he did, it ought to prevent the United States from maintaining an action against his vendees for converting it to their use. Before the timber was cut, the United States had disposed of the land to Green, and afterwards acknowledged the performance of the conditions of sale. The plaintiff has had pay for the timber once, and has no right to claim it again from these defendants. If A. takes B.’s horse and sells him to C., but after-wards pays B. for it, the latter cannot then maintain an action against 0. to recover the horse or its increase. The effect of the whole transaction between Green and the United States is to establish the title of the former to the land, and the timber thereon, from the date of the entry in the land office, and all those who claim under him for either the land or timber are entitled to stand in his shoes.”
In U. S. v. Freyberg (C. C.) 32 F. 195" court="None" date_filed="1886-12-15" href="https://app.midpage.ai/document/united-states-v-freyberg-8310973?utm_source=webapp" opinion_id="8310973">32 Fed. 195, one Klingenberg in November, 1883, entered the land as a homestead, and lived on the same thereafter. By his consent, and for a price paid to him, the defendants in 1884 and 1885 cut and removed from the land 210,668 feet of pine timber. The cutting was not to improve the land, but for sale of the timber. The action was commenced by the United States to recover the value of the timber. Afterwards, on January 15, 1886, Klingenberg commuted his homestead entry, and paid for the land at 1.25 per acre, and obtained the receiver’s receipt therefor. The proofs were forwarded to the department, but the patent had not yet issued. Upon these facts the court held that the United States could not recover. The court said:
“The consummation of the purchase, and the payment of the purchase money in full, must be held to relate back to the original entry, and con*583 sequently to protect the occupant and purchaser from liability for acts done on the land while he was holding under his homestead entry. And the protection resulting to him, of course, inures to the benefit of his vendees. No other conclusion seems consonant with justice. As suggested on the argument, the case is quite analogous in principle to that of a purchase of land by one person from another under contract. In violation of the contract, the purchaser, being in possession, commits waste. But when the purchase money is due he pays it in full, and becomes entitled to a deed. Could the vendor in such case, after receiving and retaining the purchase money, recover for the waste committed while the contract was yet unperformed? Or could he, after parting with his entire interest in the land by accepting payment, yet maintain a suit previously begun, and recover damages therein for such waste? If not, it is difficult to see how the government is entitled to recover in the case at bar.”
Defendant’s purchase of the timber from Mullison, and payment for it to enable Mullison to perform his contract with the government and obtain title to the land, was lawful and unobjectionable, had he allowed the timber to stand until Mullison had so obtained the title. He violated the law by cutting the timber before Mullison got title, and while the land was still public land, and he has been punished for that violation. His title to the ties cut on this Mullison placer tract is in no way based upon his unlawful trespass, but rests entirely on the sale and transfer by the United States to Mullison of the land- and the timber which was on it January 5, 1898, which sale and transfer was consummated by payment after the ties were cut, whereby the government can no longer assert title to that timber, nor question any disposition made of it by Mullison at any time. It follows that the defendant, and not the government, was the owner of those ties when this action was begun, and at all times since June 22, 1898, when Mullison became the owner of that placer tract. The court therefore erred in its instruction to the jury that the plaintiff was entitled to recover for those ties, and for this error the judgment is reversed, and a new trial granted.
Dissenting Opinion
(dissenting). The majority of the court entertain the view, it seems, that the judgment below must be reversed because the trial judge, in one paragraph of his general charge, remarked that “Mr. Mullison had no right to sell the timber not necessarily taken down in the ordinary working of his placer claim as a placer mine, and the defendant had no right to purchase it from him, until a patent issued to him for the land.” I am not able to concur in this view of the case, for the following reasons:
In the first place, no sufficient exception was taken to the above excerpt from the charge to bring the question involved before us for review, if we adhere to the rule, which has frequently been announced by this court, that exceptions to a charge, to be of any avail upon appeal, must be specific, and point out with certainty the particular part thereof which is supposed to be faulty, and that a general exception to a long paragraph of the charge, a part of which is unobjectionable, will not suffice. Price v. Pankhurst, 3 C.C.A. 551" court="8th Cir." date_filed="1892-11-14" href="https://app.midpage.ai/document/price-v-pankhurst-8845534?utm_source=webapp" opinion_id="8845534">3 C. C. A. 551, 53 Fed. 312; Philip Schneider Brewing Co. v. American Ice Mach. Co., 23 C.C.A. 89" court="8th Cir." date_filed="1896-10-12" href="https://app.midpage.ai/document/philip-schneider-brewing-co-v-american-ice-mach-co-8856892?utm_source=webapp" opinion_id="8856892">23 C. C. A. 89, 98, 77 Fed. 138; Railway Co. v. Johnson, 4 C.C.A. 447" court="8th Cir." date_filed="1893-01-27" href="https://app.midpage.ai/document/gulf-c--s-f-ry-co-v-johnson-8846099?utm_source=webapp" opinion_id="8846099">4 C. C. A. 447, 54 Fed. 474; Railway Co. v. Spencer, 18
In the second place, I very much doubt whether the plaintiff in error pleaded as a defense, with respect to the ties cut on the Mullison claim, that he was not obligated to pay for them, because after the trespass was committed the government accepted payment for the land on which it had been committed, and thereby estopped itself from demanding payment for the ties. It is certain that no such defense was pleaded in a clear and concise form, as it should have been if the accused intended to rely upon it as a defense. The government, as I construe its complaint, sued upon the agreement signed by Teller, when the ties were released by the government, to the effect that, if released, he would pay for them according to the rule of valuation theretofore prescribed by the commissioner of the general land office, and that the government should have the right to determine, as respects all of the ties, including those cut and removed from the Mullison claim, whether a trespass had been committed "in cutting them, and whether Teller should be compelled to pay for them. On the orner hand, the defenses pleaded by the plaintiff in error appear to have been—First, that he had been released from his obligation to pay for any of the ties, as he had agreed to do, by the action of the government in replevying them after they were released; and, second, that, if he was not released by such wrongful conduct on the part of the government, he was at least entitled to set off against the value of the ties cut on the Mullison claim the sum of $1,800 which he had advanced to Mullison subsequent to the trespass to pay for that claim. A set-off to the amount last stated was distinctly pleaded in the amended answer. As I view the case, therefore, the defense now insisted upon, that the government cannot recover the value of the ties cut on the Mullison claim because it accepted payment for the land at the rate of $2.50 per acre some months after the timber thereon was unlawfully cut and removed, was not made in the answer, or at least it was not made in such a clear and concise form as to enable the plaintiff in error to avail himself of that defense. For this reason the paragraph of the charge which is criticised and' held to constitute a reversible error did no harm, and in my opinion the judgment below ought not to be reversed on account thereof.
By what has thus far been said, I would not be understood as conceding that the charge of the lower court would have been erroneous even if the question to which it relates had been properly raised by the pleadings, and even if an exception had been preserved in due form. In the case of Teller v. U. S., 51 C.C.A. 230" court="8th Cir." date_filed="1901-12-30" href="https://app.midpage.ai/document/teller-v-united-states-8746409?utm_source=webapp" opinion_id="8746409">51 C. C. A. 230, 113 Fed. 273,
For these reasons, somewhat hastily expressed, I think that the judgment below ought to be affirmed, instead of reversed.