878
I,
DVlmA.I. 'REPQBTER,
voL 50.
,.,' ,,'t.,
"IUbJl tml'chRs8TS,!l.1) th/.! whetl:\er ortbirll ,bad paid" t,he, :,P,U e mOD, Q,a"slf.,orst\pured its payment. there w,QuId, we tlle lien wooI(J be transferred to the proceeds. cpncei va. be, Ilo ,dOll bt 1'herewould,then be for the thing sold, upon which the lien would attach, relieving tile land in the Ilands of the purchasl'rs. But it could not 'have' bf'en the iutllntion ,of the court to make a constructive paylhent,'oll apufchase by the 'mortgagees; through a cancellation of the ru,ortgagedebt,l'qulvalent to an actual payment, so as to I'l'liev!l the propl'r,ty the Such a !it'n would be illusory merely, haVing no substantIal The purchasers cannot claim to have the premises purchased discharged from the lien. " the power to enforce the' lien. A portion of the line oith e railroad sold is within, its territorial juriscliction, and proceedings to those conduCted: in the United States circuit court in and lor WeJ;ltVirgillia were,conduetedbere. In Swann v. Clark, 110 U. S. Sup. Ct. the lien of receiver's certificates was enforced ill aq suit. , ' . . . has not beeq guilty of The rece1':er's certificates call, loana, and the petitIOner had the right to assume thHthe receiver, the c,ourt's olHcer, would noti(y it when the loan was the OlOl1ey paid. ' .. The decree will be in favor of the petitionl.'r for a hen, pnor to th,e ItoJl)plainant's mortgage anll to any claims against the Kanawha ,COUlVUUy, 1'01' th.'eamount of t4e certUicatlls, with intllflll:lt and costs.
DU;UTl'! "'tni
STORAGE
&
FonWABDING
Co. et al. ".
PRENTICE.
(Cof1'Cutt Court, D. MInnesota, TMrd DBBD-DESCRIPTION-FLoAT, '
m",tsWlt. June 20, 1892.)
,A described the IQ.nd IlORveyed as beginning at a certain rock and running thence one mile east, one mllenortb, one mile west, and one mile south, to place of beginning; and also stated that it was tbe land set of! to a certain indian under a treatYW;i\p :the governwent. 'rbe Indian had freVioQ.sly selected bls land as "a tractol!llm\!e square, tblil exact boundaries 0 which may he defined when the 'Aftel',tlie deed Was given, the Indian'sland'waslocated and patented. !lo atl.; ito J'Qur distinct' but adjacent no part of wbich lay within.tbe b,oundaries name,d in the deed. Held, that the deed was not a float, but attached to tbe described tRuds, and in the absence of mistake could not be conlltrUed to pasat.lt,le to anV of the patented lands.
In Equity, Bill toeatablish title ,to lands. Decree for complainantEl· . Statelllent:by N EI,soN,Diiltrict JUdge: This llction, was begun in April, by the D\lluth Storage & ForCompany altd the Duluth Stl,'eet Railway Company on their :own hllhalf, and also on behalf or /l.U similarly situated with reference to thesubjeot of; !the acti<m who might thHrealter cOme in and be join,tID as varties thereto. The lands, or which, those are a part, were vstented in severalty, and in .four distinct but adjacent
'OULUTH STORAGE &: FORWARDING CO. t/, PRENTICE.
879
the 23, 1858, toone; Benjamin Armthree other relatives of Indian chief 13ul;falo. Armstrong, having. to the interest of the .other patentees, conveyed an U,O-: half of the entire tract to Cash & Kelly, October 22, 1859, and the other undivided half to John M. Gilman, August 31, 1864. These grantees, and those claiming under them, in 1870, caused the entire tract tp.be platted into town lots, about 2,600 in number, which now lie in the center of the city of Duluth. The 577 complainants herein, who are about two thirds of all. the present qwnersQfthe lots so platted, have, as to their respective lots, succeeded to the interest thus acquired by Cash & Kelly and Gilman, and unite in this action to quiet title against the defendant, who claims, adversely to the Gilman title, an undivided half of the entire tract, by virtue of a deed from Armstrong, made prior to the issuance of the patent, the origin of which adverse title was as follows: The patents to Buffalo's relatives were issued in pursuance of the following clanse in the treaty with the Chippewa In.. dians ·of Lake Superior, signed September 30, 1854: "And. being desirous to prOVide for some of his connections, who have rendered his people important services, it is agreed that the chipf Buffalo may sEllect one section of land at such place in the ceded territory as be may see fit, which shall be reserved for that purpose and conveyed by the United States to such or persons as. be may direct." ,,·. On the dar 'of ,the treatyl Chief Buffalo appears to have made, under the foregoing clause, the following written selection, which, in Feb.ru:' ary, 1856, was filed in the office of Indian affairs:. . . "1 hereby select a tract of land one mile square, the exact boundary of which may be defined when the survpys are made, lying on the west shore of St. Louis Bll,y, Minnesota territory. immediately alJoveand adjoining Minnesota Point; and! direct that the patents be issued for the same, acc"rding to the above-recited prOVisions, to Shaw-bwaw-skung or Belljamin G. Armstrong, my adopted 80n, to Mathew. May-dway-gwon, my nephew, to,Toseph l.fay-dway-gwon and Anton May-dwa.y-gwon. his SOll8, one quartel:section to . :.; . Septembe'l 17, 1855, the May-dway-gwons united in an assigt).ment .to Armstrong ofaH their interest under the treaty. September11, 1856, Armstrong executed to Prentice the deed upon which he bases his claim of title·. It is a quitclaim deed of an "undivided one half of all the folJowit).g describec:J piece or parcel of IImd situate in the county of St. Louis and territory of Minnesota, and known and described as tp wit: ;J3eginning at a large stone or rock at the head of St. Louis River Bay nearly adjoining Minnesota Point; commencing at said rock and running east .one mile, north one mile, west one mile, south one mile, to the place of beginning,-andbeing the land set off to the Indian chief Buffalo . at the Indian treaty of Septem1:ler 30, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and iii! now recordec:Jwith the government documents.·" Concurrently with the execution of this deed, Prentice and Armstrongjoined in a reciting that the latter had that daydet'ded to the former "a certain piece of land," describing it in the deed, and agreeing that for the
880
FEDERALR:EPOR'tER,
vol. 50.
to furnish Armstrong such money and provisions as might be necessary togo on and erect ll.' hduse on said land and live thereon, and toassiilthirn at Washingtotlinperfecting his title, Armstrong at the same tiineagreeing to moveatol1ce upon and occupy the land. The government survey of the township in which the lands in controversy lie was not made until the year 1857. The large rock referred to in the Prentice deed was a prominent,naturallandmark, and is well identified by the evidenbe. It is admitted that no part of the lands finally patented under-the t1'eatyand here·,'incontl'oversy lie within the square mile of land running: east andh6rth of said rock. . .Wm; 'W. 'Bil18on, (Geo.B;: Youn!t, of counsel,) for complainants. '. -Kitchel, Cohen & Shaw; JohnF. Dawn, and Elihu Root, (Samuel B. Clarke, of counsel;) for defendant·.. "
"
Judge, (after stating the facts.) This suit is brought to establish, as 'against the defendant, the titles derived from John M. Gilman, whose immediate grantors were· Benjamin Armstrong and wife, under a deed dated Aug?st 31,1864.: The defendant's claim must stand or fall underhisdeed ftom Armstrong and wife,dated September 11,1856. If the title 'bf G1IJ)jiUi is sustltiIted', the bomplairiants _ must succeed, as they all trace title through him.A.rrnstr0I;1g's title,conveyed by this deed, is clain}edto be derived undera with the Shippewa Indians in 1854 at La Pointe on Madali11e island.!n Lake Superior, and under'the selection of Chief BUffalo, adcordingtoth'Ei:provisions of the treaty and appointment by Buffalo, that the landsseleeted by him should be conveyed by the United Armstrong arid three other relatives. The interest unthe treatjr;bf the three relatives.was assigned September 17, 1855, to ArmstrQqg. The question which must determine the rights of the parties to this has been before this court in several ejectment suits brought by this defenda;nt ·against persons claiming under Gilman t (see 20 Fed; Rep. 819; 43 F&i."Rep. 270;) and in one instance a case was reviewed by the supreme court of the United States and the construction by this court of the d{1ed from Armstrong to Prentice affirmed. PrentJicev. 6'tearn8,1l3 U. S. 435,5 Sup. Ct. Rep. 547. It is true, additional testimony is taken in this suit by the parties under objections from each. The objections Doted by the defendant to the testimony of Messrs. Ray,'carey, McFarland, and others are overruled. I am inclined to think thIS evidence is relevant. The admission of traditionary evidence in casesol boundary isildmissible, and Chief Buffalo's selection under 'the treaty was a matter of 'pecUliar interest to the people in general who were about to make or had made settlemelit upon government. land irdhat>loeality, and so the declarations made by Chief Buffalo before his death, and those of Armstrong to the persons camping with him · at Endion, are admissible, the former as tending to show that the Buf13,10 selection lays east of the large rock mentioned, and the latter being to show that it did, and that Armstrong; fully relevarlt as also recognized this location, and that the deed from him to the defendant of September H, 1856,wasintended to convey an undivided one half NEJ,SON ,District
GRAYES'll. DAVENPORT.
881
of a described mile square lying east of the large rock, just as it states. The written contract between the parties contemporaneous with the deed is also admissible as throwing some light on the intention of the parties when the deed was executed. I am also inclined to the opinion that the documentary evidence from the land department at Washington showing the correspondence between officials of the Indian and land department are admissible; but, giving full weight to such testimony, it cannot overthrow the conclusion which the court must reach from a consideration orall the evidence in the suit. The argument of the defendant's counseHs based upon the theory urged in the ejectment suits that the interest conveyed by Armstrong to Prentice was in the nature of a float to attach to any land afterwards patented under the treaty, and not to a specific tract. This view of the case has never been adopted by this court, and it was held adversely to the defendant in the case before the supreme court of the United States. But it is urged that there was a mistake in the east and west lines as described in the Prentice deed, and that there should be a reversal of these lines by this court, which, if done, would include a large tract of the land claimed by the complainants. The witness Ellis, who drew the deed, testifies that he inserted the starting p,)int and the boundaries given him by Armstrong, and Armstrong himself testifies that he dictated the description by boundaries to Prentice,' and I can find no evidence showing that there was a mistake in the specific boundaries. On the contrary, if we are right in the expected to acquire under the conclusion from the evidence, treaty the square mile lying east and north of the large rock, and that is all the land he claimed. There are many minor points urged by the defendant's counsel, but, in the view taken by the court, none of them, if decided in favor of the defendant, would bar the relief claimed in the complaint. Decree ordered for the complainants.
GRAVES'll. DAVENPORT
et al.
(DiBtrl.ct Court, N. D. ILLinois. June 8, 1899.)
1.
WITNESSES-CREDIBILITy-ADVERSE PARTY AS WITNESS.
A complainant who has called defendants as his witnesses is bound by what they say, and cannot ask the court to disbelieve them, or to infer that they have testified falsely. A wife gave to her husband '1,100 inherited by ber, with which he bought a farm. He afterwards sold the farm, and with the proceeds bought another farm. When he wished to sell the second farm bis wife refused to join in the deed unless some provision made for her money, which he had had for 18 years, whereupon he gave her his note for $8,000. Held, that the note was given for a good considerst,ion.
2.
HUSBAND AND WIFE-PROMISSORY NOTE-CONSIDERATION.
8. PARENT AND CHILD-COMPENSATION FOR SERVICES.
Where a son works faithfully for his father on a farm for 10 years after his majority, his services area good consideration for the father's promise to pay him
.
V.50F.no.1l-56