, 'INRE KEEGAN.
129
limited to cases where the feels claimed? The hinguage seems to me to indicate the contrary. It says, "shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his or her proper title." "To the extent"-in other words, I take it, the implication, the fait-construction of thatrlanguage, is that whoever is in possession of lands claiming a title, full or not,-a title' supported by some written document or under Some legal color and claim' of title,-'who pays the taxes assessed upon that property, is, to the ex" tent of that claim, protected. For instance, if one claims to have the leasehold ,interest of a tract of land for a period of ninety-nine years, making no claim to the fee,and possessing that land for five years; should pay the taxes assessed upon it, this statute protects that title to the extent of that claim; that is, to the extent of his claim of a leasehold 'interest for ninety-nine years. And so, where a railroad company occupies land under a claim of title to the right of way fora term of years or in perpetuity, and pays the taxes upon that right of way for five successive years, this statute, working beneficently, affirms that that title is protected, not to the fee, because the fee is not claimed, bu't,to' the use which is claimed, and under color of right to which the possession was taken. ' No authorities have been cited that are directly in point,-counsel concede they have been able ttofind none,-and it comes simply a construction of this statute; arid while there are difficulties on, both sides, it iain harmony witbwhat I tblnk is the beneficent spirit of all statutes of limitation, to protect a party who in good faith enters upon and imL proves land, and for a series of years pays all the charges thereon which' thl:lstate imposes, to say that it applicable to a case like this. My conclusion, therefore, is that the defendant is protected by the payment of taxes; and 'judgment will be statute of limitations and entered in its favor.
the
In re (Oirouit
KEEGAN.
oourt, J).
Oolorado. May 14, 1887.)
1.
A.TTORNEY-DISBARMENT-FALSE AFFIDAVIT.
I.
Where an affidavit containing false statements is subscribed to by an attorneyat law in a matter of a pre-emption claim tiled in a land-office, in which affidavit, however, no formal oath is administered, but which false statements are known br. the attornel to be false, such attorney, while he may not be chargeable WIth perjury, IS nevertheless guilty of such unprofessional con· duct that his name will be stricken from the' roll of the court. The claim of such atiorney that he did not know the requirements of the land law, or that an oath was necessary, and that he did not read the paper, and signed it innocently, at the request of the land-officer, will not prevail to establish a mistake, if the surrounding circumstances show that he must have understood the matter. and was interested in getting it through.
SAME-KNOWLEDGE OF THE LAW-EVIDENCE.
Proceedings for Disbarment. v.81F.no.8-9
130 W'Ulard tion.
FEDERA.L REPORTER.
T.D. W.
M. Benedict, and J., A. Bentley, committee for prosecu' Yon!ey, for respondent.
BREWER, J. In 2,061, whichisn proceeding in which It committee of the bn!,' have filed charges and specifications against John C. Keegan, an attotr)ey of this bar,alleging such misconduct as they claim compels the court to strike his name from the rolls and to disbar him, there are four charges: Fir8t, that he. was guilty of perjury in swearing to a final proof; 8econd,that he was guilty of perjury as a witness on the trial of Patrick J. Sheridan, in ,the district court for. this district; third, ,that he was guilty: of mil3Conduct in respect to the filing of that pre-emption proof, and in respect to the transactions attending that proofj fourth" that it is improper in any person who claims to practice as an torneYllt law to advise or draw papers for any person on any matter which,a lawyer is suppolled tOibe cQnversant with,without informing of what thei lJ1w is, and without read,ing ,the papers before he allows to be signed and filed,and thnt respondent was guilty of such impropriety. , ,', ' " The facts aie these: In the forepart of March he went with Mr. Sheridan to the land-office at Del Norte, and filed declaratory statements for 14r. Sheridan nnd others. On the third dny of November the final proofs in the Shelidan case 'were lUnde. He was a ,witness for Mr. Sheridan, and the paper is in evidence in which appears his statement, with the jurat of the land-offiCer. That statement is untrue in this: that the witness states himself to be iii resident of Henry, Rio Grande county, when in fact he was ,a resident of Denver. It is untrue in some other particulars; as, ,for instance, the ammmt of improvements actually made. The receiver testifies that that was signed and sworn to by Mr. Keegan. Mr. Keegan positively denies this. The register testifies that his impression is that he was present and saw the oath administered. Mr. Sheridan testifies that he was present, and that no oath was administered. Mr. Feely, who was the other witness, testifies that, when he signed, there was no oath administered. On the trial of Mr. Sheridan, Mr. Keegan swore substantially in this respect as he does now. The jury on tlial acquitted the defendant. I assume that, as this is a quaBi criminal proceeding, this court may, in view of such testimony, conclude, as 'the jury did, that the charge of perjury is not proved, in that the formalities of hand and the administering of the oath did not take place. It leaves before me the ()ther:question, whether, in what unquestionably did take place, thec6nductbf Mr. Keegan was professional or not. he )l.Otping, substantially, about the requirements of the; land laws j. tha.t· he did not know that an oath was requiredj'thathe did and that thus ignorantly and innocent;1Y, at the the land-officer, he signed it. Well, whatever we may think of the carefulness or prudence of a man who should thus sign papers, if it were true, as he says, you could hardly 'I; ·
IN Rl!1
:tal
say that thatoonauct iti\Tolved such moral turpitude as ,. to his removal. But is it true that he was innocent and ignorant? -It is not a pleasant thing to say,hut my conviction is beyond a doubt that his Claim iswith6ut the slightest foundation. Of course, in determining the extent of one's knowledge and intent, you are to look at the surrounding circumstances. I may n6tice some, and yet I shall not attempt to notice the many that impressed themselves upon my mind as the testimony was received .. He says that he was ignorant of the land laws; that he went in the first instance with Mr. Sheridan simply as a friend; and yet it appears from his own lips, as well as from abundance of testimony, that immediately after, if not at that time, he was ployed as the solicitor for a projected colony, to conduct for them proceedings before the land-office' at Del Norte, and that he did act in 'that capacity. It seems passing strange that any lawyer could proceed upon a transaction of that kind, involving many matters and a variety of proceedingsbefore the department, and never examine the laws applicable thereto. He 'says that he never examined them carefully until after Mr. Sheridan was arrested, and then he wrote to Secretary Teller and got a copy of the land laws. The testimony of Mr. Brastowand Mr; Cleghorn, the receiver and register, is that, at the very first time ht" came there, they gave him, and he took away, several of those circula1'8> containing the land laws. He says he believes those Were received, but; they were lost, and Mr. Sheridan found them long after the final proof was made. It appears, however, that he was there during this time, attending contests hefore those officers. It appears that he represented himself to many persons as familiar with the land laws. He says that he ascertained the necessity of an oath on the very day and the very hour that this oath was apparently taken. In his testimony given at Pueblo he, says that, before he left the office, he picked up one of these blank statements, and noticed that an oath was required, and spoke to Mr. Sheridan about what a curious fellow the officer was that had neglected it. It seems strange that this information should come to him so soon after the time when this oath was apparently taken. Morethan that, at the time that he first went down. he filed a declaratory statement in behalf of John Keegan, another in behalf of Thomas Keegan, and many others; indeed, during the month of March he filed some 150 to 200 declaratory statements, nearly all of which were canceled thereafter on the alleged ground of fraud. He testified before the court at Pueblo that John Keegan, in whose behalf this declaratory statement was filed, was not himself; that he was a gentleman living in Denver, a young man, no relative of his, a well-known citizen, who worked at the smelter here for a while, and then, becoming salivated, did outside work; that he unfortunately died between March, when the declaratory statement was filed, and November, when the final proofs were made; and that Thomas Keegan was his brother, and had left the city. He says that Mr. Sheridan may have met this Mr. Keegan at his own office. Mr. Keegan's partner testifies that he never knew such a lUan as John Keegan otherthan the respondent. I took pains to look in the-directory of 1883 and 1884
132
FEDERALREPQRTER.
and. there are no such as John Keegan and Thomas Keegan; no other ;I{eegan than the respondent. Mr. Bloomfield testifies that whe)). Mr. Keegan was there he frequently spoke of this land upon which this declaratory statement was filed as his own. He told him what he was going to do with it, how he was going. to improve it, etc.jand when Bloomfield suggested to him thatthere was no such occupation, he being a resident of Denver, as wouldentit;l.e him to make final proof. he told him that there,hadbeen a recent decision of the land department that pasturing cattle, with perhaps some fencing, was suffiGientto entitle one to prove up on the land. Obviolls1y that was a declaratory statement filed on his OWn behalf, and that there was some other John Keegan is untrue. .' He saYllthat after the first to Del Norte there was a scheme to organizellon Irish colony th,ere,:and that in Mayor .June he went to Chicago and attended a meeting for that purpose, at which 45 persons were present. HIl says that, after this 'Irish colony was projected, he prepared, many declaratory statemel)ts,and sent them to Chicago to be filled out. While he Joes not dil:1tinctly locate the time at which that Irish colony was projected,yet the,obvious import of his testimony is that it was not until after ;Mr. Sheridan, had gone back East for his family. The testimony of Mr. Keegl:j.n's partner, given under circumstances of much elDbarrassment, and given with great unwillingness, shows beyond doubt th,at,\larly in March, Mr,Keegan was busy in his office with making opt land-office papers, and that there were multitudes of them, and that he himself was approached by Mr. Keegan, and two blank statements.,-that is, unsigned-hltUded to hin'l, with the suggestion that he sign one 'and his ,son the other, and that they thus commence proceedings to obtain title; l;tnd when there was some suggestion made as to the difficulties whichmigM interfere with that scheme, as Mr. North:r:up was unwilling to leave this city, Mr. Keegan tendered his services as a notary to perfect all that Wa& necessary about making proofs. While there were n, exact nU:Q:lber I do not recall, perhaps eight or nine-who did go and legally take land, it seems to my mind beyond a doubt that there was a scheme tpgo there, and,. without regard to the requirements 0'£ the land ll!<wij of the United obtain title to a vast tract ,of land,. and that K:eegan was part and parcel of that scheme, intending to secure for his portion of that land. It does not stand to reason that one entering upon such a scheme as that would close. his eyes to the requ,irements of the law. It would be against human experience that he should say, "I won't look to see what the law requires.": ,On the contrary, his course would be the very reversej he would carefully study all the requirements of the statute, that he might see how he could get around them., Furth,er than this, singularly enough he .appea,rs at Del Norte on the first of. The records show th\\t he was there conducting a in which Mr. Sheridan was interested ,though not in respect to this particular tract of land. gularly enough, he meets Mr. Sheridan, with Mr. Walsh and Mr. Feely, Mr. Feely being the other witness; all go on to Del Norte, and are present
IN RE KEEGAN.
133
there. He says he did not go for the purpose of assisting in making this proof,-that he went to look after·some mining claim; and yet, by some singular conjunction, the parties met. At that time Mr. Sheridan, according to Mr. Keegan's statement, did not want to prove up; was surprised at the suggestion, therefore, that he made to him, intimating that he had undisturbed possession of the land, and that he would rather retain the money requisite for payment for a length of time. Yet Mr. testifies he was in' constant correspondence with Mr. Sheridan; that it was he himself who caused ·the advertisements to be made of the time for making final proof,-the same time being fixed for final proof for John Keegan and Mr. Sheridan. In the list of witnesses for Mr. Sheridan, John C. Keegan's name is given; in the list of witnesses for John Keegan, John C. Keegan's name is omitted. He says he furnished the list of witnesses, and yet that he did not know that he would be there. It would seem strange that, if he was carrying on proceedings for John Keegan and Mr. Sheridan, when he gave the list of witnesses for each, he should make a difference in the names. It is strange that, ifhe had caused this advertisement to be inserted, he should go at the time, and yet without a thought of being a witness; and it is also strange that Mr. Sheridan and the other witnesses should also happen to come at the same time. All these things -and they are but a portion of many which n1ight be mentioned-combine to satisfy me that this was not an innocent and ignorant mistake, and that, while it may be true that the receiver of the land-office did forget to formally administer the oath, it is also true that Mr. Keegan. knowing what was going on,-the very man who was engineering and carrying these things through,-was cognizant of the fact that hewas lending his name as a witness to that which was an untruth, and endeavoring by such means to obtain land from the government. It goes without saying that 'in our profession the highest obligation is to truth and honesty, and that he who would be a lawyer should by his own conduct, as well as by the advice which he gives to his clients, seek to promote truth and establish justice; and while it is a painful duty to perform, yet I conceive it to be a duty from which no judge can shrink, that whenever the conduct of any member of the bar is challenged, if it appears that that conduct is inconsistent with professional obligations, and is evidence of moral dishonesty, the court should, discharging its duty to the profession and the community, strike that man's name off from the roll of the courtj and that will be so ordered here.
'134 BODKIN,
FEDERAL:REPORTER.
Jr., .,.
WESTERN UNION TEL.
Co.
(cwlYUit cowrl, D. Kentucky.
February 14, 1887.)
NEGLIGENCE-PRO:KIMATE AND REMOTE CAUSE-TELEGRAPH COMPANIBS.
, Plaintiff's petition alleged the loss, by a flood. of certain barrel staves, owing to the negligenceof;the defendant in not a telegram, containing information of the arrival of a barge upon which saId staves were to have been shipped, until 80 hours after the receipt of said telegram, although he Within a hundred yards of defendant's office. Held, overruling demurrer to petition, that the plaintiff could recover damages for the loss of the use of the barge in its ordinary and usual uses, but that he could not recover for the loss of the staves which mig/tt have been saved by the use of the barge, as it did not appear that the negligence of the defendant was the natural and proximate cause of such loss.
At Law.
The opinion states the case.
.White &: Reeves and J. M. Bigger, for plaintiff. Henry Burnett, for defendant: BAlm, J. Plaintiff alleges that he made a contract with F. Norman, who did business in Mound City, Illinois, in which it was agreed he (Norman) would pay plaintiff $50 per thousand for all the staves he would get out and deliver to him at Mound City, Illinois. In this agreement, Norman was to furnish vessels suitable for the purpose of shipping the staves from where they were made to Mound City; that he made, under the agreement, about 40,000 staves, and had them on or near the banks of Mayfield creek, which empties into the Mississippi river at or about 10 or 12 miles below Mound City. Mayfield iaa small creek, which only furnishes water enough to float barges, and other like vessels, when it is high, and hence it must be used for that purpose when the water is high. He alleges that when he was ready with his staves on said creek, he notified Norman, and it was agreed between them that the staves would be shipped whenever the water was at a suitable stage, and that Norman was to send a barge to the mouth of Mayfield creek. and notify plaintiff. and plaintiff,was to take it from there up the creek to the staves, and there load the barge, and deliver the staves to him at Mound City. He says that when the water began to rise, and was rising rapidly, Norman sent a barge to the mouth of Mayfield creek, and secured it at or near the bridge of the Mobile Railroad Company, which is just above the mouth of Mayfield creek, and that said Norman wrote and delivered to the defimdant's 'agent at Mound City a telegram addressed to plaintiff, at Bardwell, which was as follows: "MOUND CITY, ILLS ·
Get them above as soon as possible. " F. NORMAN." He alleges that defendant undertook to deliver this telegram within a reasonable time; that in fact it was promptly transmitted to Bardwell, but defendant failed to deliver it for 30 hours after its receipt at Bardwell, although plaintiff lived within a hundred yards of defendant's
..D. Bodkin, Jr., Bardwell: Barge at Mobile bridge.