362 Iq,l;lst;be;
,FED;ERAL 'REPORTER,
vol.
to keep lJP enterprise, tre.re to the mill, and.lnbisbe suspended or stopP!i4 tb.e enterprise, which largec,apital was embarked, must fail. ,not confined to 11 peaceful entry and claim, The but with'llCtual force, with firellrn1:B., and the destruction c0ll:lpmillant, were calculated' ,to excite alarm among of the the colored p.eqple engage,dby complainant; to terrorize them, to the last degree; to demoralize and, Q,iaperse them; and to deter others from taking their places. This would result in destruction to the whole enterprise.' No damages which,could be recovered in any action of trespass ,The injunction must be continued until the couldcotXlpensate for further order of the court. Erhardt v. Boaro, 113 U. S. 536,5 Sup. Ct. Rep. 56Q; .Irwinv. Didon,9 How. 9. But this will not do exact justice defendants should have an opportunity of between ,these parties. . rightslljS,t!;ley have. Let an issue be made up on the the law: ,ofthis cO\1'rt, and tried before a jury therein. Let issue be .)'pether Robert R James and David W. Brailseither them,. have all:Y title.to the lands claimed by the complainant, qr anY pa,-:t or.paristhereof, and the nature and extent of that title. The tinding, of 1pe Jury to be reported to this court, with the the possession is in the complainant, charge ofthejudge to therp. and as the said pefenda'tHtset.up adverse title, let them be the actors in said issue. See Muldrow, v. Jone8, Rice, Law, 64.
of one,who1e.
In
IRWIN
et al.
fl. WEST
et ale
(OircuAt OOUrt, N. D. IUinoia. January 4, 1899.) L FORBOLOSURlI-EvII;IENCll;""8PllSTITUTION: oJ!: .sECURITIES.
In a suit to fpreclosea tru\Jt deed it appeaz:ed that the defendant had afterwards given theoomplainant $Bother note, with' other security, for the same debt. Defendant that, this other security was taken in. place of. the trust dee4. but defendant contradicted himself, and the clerk sllowed that he WBS undet'defendant's influence. The receipt taken by defendant to show what the seC/ond not',e was security for did not atate that it wall to take the plaCll of the trust deed.. Held, that the preponderaI)ceof the evidence did not show that the secolldnote, with its security, was,taken in substitution of the trust deed.
S. SAME-PLJ:DGE. Where the only proof that a notE!lse<\ured by trullt deed was pledged to segure a liability in no way connected with the origin of the trust deed is the testimony of the per.son.towhom such liability was. incurred, and he is contradicted by the maker of the note, the end,ence fails to show th,at the note was so pledied.
lard, W. G.'
InEquity.,'·..· ..Burry, for . Weigley, Bulkley &: Gray, .0. JI. &my, Flower, Smith &: Musgrave, O. H. Learning, JMden &;- Farson,Oa7fl.pbell &;- Ouster, Juda:h&: WilA. T. Ewing.,. G. ]frank White, Wilbar &;- Clarke, John S.
Cooper,
Gqrdiner, for defendants.
mWIN "'. WEST.
363
'BWDGETT, District Judge. This isa bill ineqtiityto foreclose a trust deed,given by the defendants West and wife, June 26, 1889, and recorded July 19, 1889, to W. T. Rankin, to secure the note of West to the complainanti'! for $64,000. The proof shows that the note secured by this trust deed was in fact given to indemnify the complainants Irwin and Rand in tuat amount against certain liabilities they had incurred as sureties for West; and the master has found and reported as a part of the case that complainants have paid the sum of $33,000 principal, as sureties for West, which this note and trust deed were intended to indemnify them against, and; if the trust deed is still in force, it stands as security to complainants for that amount with interest and costs. The master, however, finds and reports that, by an agreement made between com plainants and West, subsequent to the giving ofthe note and trust deed in question, and on the 22d day of July, 1889, West gave complainants an assignment of his equity in 5,001 shares of the capital stock of the 0hicago Times Company, to secure his note for $64,000, in substitution for and in place of the note described in this bill and trust deed, and that complainants, by reason of such substitution of security, have no right to the foreclosure of this Rankin trust deed. Complainants have filed exceptions to the findings of the master in this regard. It also appears from the master's report that the property covered by the trust deed was, at the time of the giving of the said tfust deed, subject to two prior mortgages for purchase money, both of which are now held by the defendant George F. Bogue. on which there is found to be due the sum of $23,966.83, and no exceptions are filed by allY one to this finding. The master also reports and finds that on the 2\::1th day of April, 1889, West und wife gave to one Frederick P. Reed alrust deed, to secure the notes of West for the sum of $30,000, which trust deed was not filed for record until the 24th day of June, 1889, and that this last-mentioned trust deed stanrls as security for the sum of $13,758.54, due from J. J. West to the First National Bank of Chicago, and $14,595.60, due from J. J. West to Frank S. Weigley, for money paid by him to the Commercial National Bank of Chicago, as surety upon notes of West, and that this last trust deed is a lien on the property in question immediately after the Bogue mortgages. Defendants Winfield S. Shepard and J. J. West and the complainants in the original bill have excepted to the finding oithe master in regard to the amount as to which the Reed trust deed stands as security to Weigley. The case therefore stands: (1) On exceptions of complainants Irwin and Rand to the finding of the master that the note of June 26th, for $64,000, and the trust deed to Rankin to secure the same, were to be canceled and given up, by reason of the substitution therefor of the note for $64,000 of July 22. 1889, secured by pledge of the 5,001 shares of Chicago Times Company stock. (2) On exceptions of West and Shepard and· Irwin and Rand to the findings of the master that the Reed· trust deed stands as· security to Weigley for the $13,000 note and aocrued interest, paid by Weigley to the Commercial National Bank, as surety for West.
FEDERAL REPORTER,
vol. 50.
As to the master's finding that apre'ponderance of proa! shows that the note and. trust deed for $64,000 set out in the bill was satisfied by the note for thesll,me amount, secured by the Chicago Times Company stock as GoUateral, I feel, !lfter a careful readilig of the proof, compelled to differ in my conclusions from those of the master. The burden of proof to show the substitution of this latter security for the note and trust deed s.et out in the complainants' bill is upon the defendant West, who sets up this defense. NQ release or agreement in writing is produced, and it is not pretended that any was ever given to West, or any other person, evidencing such an agreement to substitute securities. West and Graham testify to a parol agreement that the last paper should be in substitution for the former note and trust deed, and upon the testimony of these two witnesses in regard to this substitution the master finds there is a preponderance of proof in fa vor of this line of defense. West has so· far contradicted, himself in the various answers and positions he has taken in regard to this, transaction as to fully justify the court in disregarding his testimony, and holding it for naught as bearing upon the question at issue. Graham was West's clerk. His testimony justifies the conclusion that he. was largely under the influence of West, and was a willing witness in his behalf; and his testimony, when you read the examination and cross-examination, bears quite satisfactory evidence of his having bee.n 8chooled in regard to what he should testify to. One of the most pregriant.items of evidence upon this branch of the case is the fact that, while West was careful to take from Irwin a receipt showing exactly what this note secured by Times stock WaS to sland as security for, 1)e should have wholly failed to put into the same document a clause to the effeet that it was to take the place of the security given on the 26th of June. This receipt, fully and carefully as it is prepared and executed, must be held to represent the entire contract made between the parties at the time this collateral note was given, and excludes, of itself, the idea that it was. to effect any other matter than what is set out in the receipt. The proof shows that Irwin and Rand learned about the 7th of July that the $30,000 Reed trust deed had been given by West before he gave his trust deed to Rankin for them, and they wrote at once to West, reproaching him for his duplicity in aS8luing them that the Bogue incumbrance Wl,lS the only incumbrance on the premises prior to the one he had given for them. -In answer to this letter West wrote a long one to Irwin, explaining the emergency in which he was placed, and attempted to explain to him how the giving ofthe Reed trust deed was no breach oHaith towards Irwin and Rand; and he further explained that he had giveJl, to H. C. Huiskamp a note for $64.000, payable to Irwin and Rand, and secured the same by a pledge of his equity in this same block o!5,001 shares of Times stock, with directions to Huiskamp to deliver the note. to the complainants, and in this letter he does not say a word about in substitution for or to taIre the place of the Rankin trust deed';; On thec()ntraty, speaks about its being proper that he should have a receipt stating what thetru8t deed is given lor; evidently, I think,
IRWIN V. WEST.
365
alluding to the Rankin trust deed now in suit. The transaction between Irwin and West, by which the note and Times collateral was made on the 22d of July, is but a consummation of what West had said in his letter of the 7th of July he was willing to do in the way of security, to make the complainants good for the Reed mortgage having been placed ahead of theirs upon the record. Much weight is attached to the expression in Irwin's letter to West, after he had discovered that the Reed trust deed had been put on. record , to the effect that his lien upon West's real estate was worthless; but this expression cannot be tortured into .evidence that he released, or intended to release, whatever of value this trust· deed was to himself and Reed. Its value was undoubtedly greatly impaired by the fact which he had just learned that the Reed trust deed was a prior lien to the one now in suit; and this hasty expression, nsed in a letter written on the discovery of the Reed mortgage, is, to my mind, of no weight in support of the alleged argument of July 22d. I might spend much hlore time in amilyzing this testimony, but suffice it to say that I think all the proof in the caSll, when taken together, fails to sustain the theory now advanced by West,-that the note and trust deed in question were to be canceled by reason of the note and collateral pledged 'Oll the 22dof July. As to the exceptions taken by the several complainants and cross complainants in regard to the finding of the master that the Reed trust deed is to standas security to Weigley for the amount Weigley had paid as surety for West to the Commercial National Bank, I think it is sufficient to say that the only evidence we have of any pledge of the $30,000 to secure thIs isrrom Weigley himself. This is denied by West; and, as this security had nothing to do with the origin of the trust deed, it seems to me that it ought to take more conclusive and positive testimony to import this Commercial National Bank debt into the Reed trust deed. The exceptions of the complainant to the report of the master are therefore sustained, ahd also the exceptions of West and Shepard to that part {jf the master's report in whlch he gives Weigley the benefit of the$30,000 trust deed to secure him against liability to the Commercial National Bank. A decree may be prepared sustaining the exceptions as above, and directing a sale of the premises covered by the trust deed, and that {jut of the proceeds the incumbrances be paid in the order of priority found by the master.
866 , !,.
, ANCHOR
et al. v.
HOWE
(Oircuit OCYUllt, D. Idaho.
April '16, 1892.')
PtlllLtO LA.'N1>s-LAND-OFFICE REGULATIONS.
r/'lgu!ations,for the disposal of pnbliclands must be appropriate, reasonable, and witliin the limitations of the law for the enforcement of which tbey are provided,and when otherwise they are void.
(SyUabu8 blithe OOUrt.)
InEquity. Bill byH. E. Anchor and others against Benjamin S. Howe and others to determine an adverse claim to publio lands. Plea in abatement disallowed. HaganaQd Richard Z. JohnlKYn, for plaintiffs. W.B. Heyburn, for defendants. BEATTY r District Judge; It is alleged by the bill that this action is inetituted in of the provisions of section 2326, Rev. St.., and that "complainants made their protest and adverse claim under oath and indue form of law, and tiled ,the same in the United States land office," etc. The defendants plead, in abatement of the action, that no ad\'erse claim was filed or aliQwed in !!uch land office. It sufficiently appears that an adverse claim in due form was presented to the land office for filing, but was rejected because it did not appear therefrom that a survey of the disputed prelnises, and a map thereof, had been made bya deputy ,United Stntes surveyor. Said section 2326 requires that the ad· verse,claim filed ,"shall show the natllre, boundaries, and extent" thereof. This statute is ,it) all particulars complied with by the adverse claim presented to the land office, and no question is or cnnbe raised that the statute itself is not fully observf'd. But by the forty-ninth rule, issued by the,commissioner,of the ,general land office, approved by the secretary of the interior,theplat showing the boundaries of the conflicting premises' "must bel1lade from an actual survey by a del;uty United States surveyor." Must this rule be regarded fie a part of the law, and be closely follo-wed? is the only question for determination. The plat and certificate attached. comply with the rule, except that it does not appear tQ&tthe who made them and the survey was a United States surveyor. In support of the effect of this rule, the department decisions found in Sickles, Min. Dec. 263, 265, 277, are cited. In those cases it appears the adverse claims were very irregular, and wholly failed to corn· ply with said rule in not showing that any survey had been made, and in omitting the certificates required. Their conclusion is not based alone upon the fact that the surveyor was not a United States deputy, but, on the contrary, it is stated in one that "no surveyor," and in another that"no United States deputy or other surveyor," had performed the required acts. It may fairly be inferred from these cases that the performance of such acts by any surveyor would be sufficient. Weeks on Mineral Lands, 190, says they may be performed by a United States deputy or other surveyor. But aJmitting that such rule can btl complied with