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record, - was properly denied. Such a case does not come within the rule that a court, after the expiration of the term, may, by an order, nunc pro tunc, amend the record by inserting what had been omitted by the act of the clerk or of the court. Hickman v. Fort
Scott, 415. 7. In a suit in equity for the foreclosure of a railroad mortgage this court
holds, on appeal by the purchaser at the foreclosure sale from a decree declaring the claim of an intervenor to be a lien upon the property, that the record is too meagre for it to determine whether there was any
error in the decree. Kneeland v. Luce, 437. 8. A stipulation in this case that “testimony heretofore taken and filed in this cause
may be used in any future litigation touching " the subject of the controversey in this suit is held not to import into the suit testimony from other records in this court; it not appearing by this record that such testimony was used by the appellant in the hearing below, or that the appellees were parties to the stipulation. Ib. See EvideNCE, 4;
Motion for REHEARING;
PRINCIPAL AND AGENT.
PRINCIPAL AND SURETY. While adhering to the rule that any material change in a contract made road, where that road intersects the Neosho River; Second, a railroad from the city of Atchison, Kansas, via Topeka, to the western line of that State, in the direction of Fort Union and Santa Fe, New Mexico, with a branch where the latter road crosses the Neosho, down said Neosho Valley to the point where the road, first named, enters the Neosho Valley. The act provided that in the case of defi. ciencies in place limits, it should be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections, or parts of sections, desig. nated by odd numbers, as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the rights of preëmption or homestead settlements have attached.” The act also provided that the “ sections and parts of sections of land which, by such grant, shall remain to the United States, within ten miles on each side of said road and branches " (that is, the erennumbered sections within the place or granted limits,] “shall not be sold for less than double the minimum price of the public lands when sold; nor shall any of said lands become subject to sale at private entry until the same shall have been first offered at public sale to the highest bidder, at or above the increased minimum price, as aforesaid : Provided, That actual and bona fide settlers, under the provisions of the preemption and homestead laws of the United States, may, after due proof of settlement, improvement, cultivation and occupation, as now provided by law, purchase the same at the increased minimum price aforesaid : And provided, also, That settlers on any of said reserved sections, under the provisions of the homestead law, who improve, occupy and cultivate the same for a period of five years and comply with the several conditions and requirements of said act, shall be entitled to patents for an amount not exceeding eighty acres each, anything in this act to the contrary notwithstanding." By a subsequent act, July 16, 1866, for the benefit of the Union Pacific Railroad Company, Southern Branch, there was granted to the State for the ase of that company, “every alternate section of land or parts thereof designated by odd numbers to the extent of five alternate sections per mile on each side of said road, and not exceeding in all ten sections per mile; but in case it shall appear that the United States have, when the line of said road is definitely located, sold any section or any part thereof, granted as aforesaid, or that the right of preëmption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States has sold, reserved or otherwise appropriated, or to which the right of homestead settlement or preëmption has attached as aforesaid, which lands, thus indicated by the direction of the Secretary of the Interior, shall be reserved and held for the State of Kansas for the use of said company by the said Secretary for the purpose of the construction and operation of said railroad, as provided by this act.” This last act provided also “ That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be, and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted subject to the approval of the President of the United States : And provided further, That said lands hereby granted shall not be selected beyond twenty miles from the line of said road.” The routes of the Leavenworth, Lawrence and Fort Gibson Railroad Company, which got the benefit of the first road named in the act of 1863, and the Union Pacific Railroad Company, Southern Branch, now the Missouri, Kansas and Texas Railroad Company, which succeeded also to the rights of the Atchison Company in respect to the road down the Neosho Valley, crossed each other in the valley, so that some of the even-numbered sections within the original place limits of the first-named road were within the indemnity limits of the latter road, and some eren-numbered sections were wit the common indemnity limits of both roads : Held, (1) That the even-numbered sections within the place limits of the Leavenworth, Lawrence and Fort Gibson Railroad were reserved to the United States by the act of 1863, and therefore were excepted from the grant in the act of 1866 and could not be patented to the Missouri, Kansas and Texas Railway Company to supply deficiencies in its place limits; (2) The even-numbered sections that were within the common indemnity limits of both roads could be used to supply deficiencies in the place limits of the Missouri, Kansas and Texas Railway Company, saving the rights acquired under the preëmption and homestead laws before the selection of such lands for purposes of 'indemnity. United States v. Mis
by the principal without the assent of the surety, discharges the latter, the court is of opinion that the charges set up in this case as a reason for the discharge of the property of the surety were not material and did not operate to discharge it. Cross v. Allen, 528.
Local Law, 2.
PUBLIC LAND. 1. Congress, March 3, 1863, granted to Kansas every alternate section of
land, designated by odd numbers for ten sections in width on each side, in aid of the construction of the following roads and each branch thereof: First, a railroad and telegraph from the city of Leavenworth, Kansas, by the way of Lawrence and the Ohio City crossing of the Osage River, to the Southern line of the State in the direction of Galveston Bay, in Texas, with a branch from Lawrence by the valley of the Wakarusa River to the point on the Atchison, Topeka and Santa Fé Rail
souri, Kansas 8. Texas Railway, 358. 2. The principle reaffirmed that title to indemnity lands does not vest in a
railroad company, for the benefit of which they are contingently granted, but remains in the United States until they are actually selected and set apart under the direction of the Secretary of the
Interior specifically for indemnity purposes. 16. 3. Where a patent has been fraudulently obtained, and such fraudulent
patent, if allowed to stand, would work prejudice to the interests or rights of the United States, or would prevent the Government from fulfilling an obligation incurred by it, either to the public or to an individual, which personal litigation could not remedy, there would be an occasion which would make it the duty of the Government to institute judicial proceedings to vacate such patent. These principles equally apply where patents have been issued by mistake, and they are especially applicable where a multiplicity of suits, each one depending upon the same facts and the same questions of law, can be avoided, and where a comprehensive decree, covering all contested
rights, would accomplish the substantial ends of justice. 15. 4. Kansas City, Lawrence gc. Railroad v. The Attorney General, 118 L. S.
682, distinguished, and held to decide only the right of the Missouri, Kansas and Texas Company to idemnity from the odd-numbered sections within the overlapping indemnity limits of that company and the Leavenworth, Lawrence and Fort Gibson Company. Ib.
In a suit in equity brought against a railroad company, by a judgment
creditor, for the sale of its road, because of insolvency, the road being covered by numerous mortgages, a receiver was appointed, on whose petition an order was made directing him to issue receiver's certificates to various parties, who claimed to be sub-contractors for building the road, and were about to sell certain shares of the stock of a company whose road formed part of the line of road and were held in pledge for the debts. The order directed that the certificates should be a first lien on a certain part of the road and should so state on their face. They were so issued. The trustee in the mortgages was a party defendant to the suit, when the receiver was appointed, and, by its counsel, consented to the issue of the certificates. The trustee also filed a foreclosure bill, in which a decree of foreclosure and sale was made, providing for the payment of “court and receiver's indebtedness," prior to the payment of the bondholders, and gave leave to the purchaser at the sale to appeal from any order directing the payment of claims as prior to the mortgage bonds. The road was sold, and the purchaser, under the order of the court, received the shares of stock referred to. The claims of the holders of the certificates were reported favorably by a master, and, on exceptions to the report, by the purchaser, for himself and other bondholders, the court allowed all the certificates as prior liens, and directed the purchaser to pay their amount into court: Held, (1) The issue of the certificates was proper; (2) Good faith required that the promise of the court should be redeemed; (3) The purchaser and the bondholders were estopped from setting up any claim against the priority of the certificates. Kneeland v. Luce (2), 491.
See CONTRACT, 8;
EQUITY, 6, 7;
RECEIVER. 1. Whether a person holding the office of receiver can be held responsible
for the acts of his predecessor in the same office is not a Federal ques
tion, but a question of general law. McNulta v. Lochridge, 327. 2. A receiver of a railroad, appointed by a Federal court, is not entitled
under the act of March 3, 1887, c. 373, § 3, 24 Stat. 552, 554, to immunity from suit for acts done by his predecessor, without previous
permission given by that court. Ib. 3. An adverse judgment of a state court, upon the claim of a receiver
appointed by a Federal court, of immunity from suit without leave of the appointing court first obtained, is subject to review in this
court. 1b. 4. Actions will lie by and against a receiver for causes of action accruing under his predecessor in office. 15.
See Equity, 6;
Numerous judgments at law were rendered in the state court in favor of
the same party, against the same defendant; in each case, the judgment was for less than five hundred dollars, but the aggregate of all the judgments was over three thousand dollars. After the close of the term, the defendant against whom the judgments were rendered, filed a petition in the same court for the annulment of the judgments upon the ground that, without negligence, laches or other fault upon the part of the petitioner, they had been fraudulently obtained. Subsequently the petitioner filed a proper petition and bond for the removal of the case into the Circuit Court of the United States. The application was refused and the state court proceeded to final judgment.
Held, (1) Upon the filing of a proper petition and bond for the removal of a
cause pending in a state court, such cause, if removable under the act of Congress, is, in law, removed so as be docketed in the Circuit Court of the United States, notwithstanding the state court may refuse to recognize the right of removal;