UNITED STATl!:S tl. DALLES MILITARY ROAD CO.
629
UNITED STATES t7. DALLE!l MILITARY ROAD
Co. tt aI.
(CWcu.U OO'lllrt of A.ppeaZ., Ninth Oircuit. July 18, 1892.)
L
£Q1fITY-PLEAS-REPLICATIONS-SUIT TO FORFEIT LAND GRANTS.
Act Congo Feb. 25, 1867, granted certain lands to the state of Oregon to aid In tbe construction of a military road, and authorized the sale of the lands on the certificate of the governor of the state that the road was completed. The state granted the lands to a road company, and thereafter the governor issued the required cer· tificate, and the lands were sold. Subsequently, in pursuance of Act Cong. March 2, 18lS9, (25 St. at Large, 850,) a suit was brought to deolare the forfeiture of the lands on the ground that the road was never built as required by the act of congress, and that the governor's certificate was procured by fraud. Defendants flied two pleas, supported by answer: (1) That the issuance of the certificate was without any fraud on the part of the road company; and (2) that defendants were bona fide purchasers without notice of the alleged fraud. The circuit court heli!' these pleas sufficient in law, and dismissed the bill. On appeal to the supreme court, this llecree was reversed, the court, holding that the government was entitled to , file repliQt\tions to the pleas, and saying that" congress intended a full and ·legal investigation of the facts. and did not intend that the important interests.1nvolved should be determined upon the untested allegations of the defendants." Subsequently: replications were to the pleaa. HeZd, that the {lase WSlII thereafter to be triM on the issues raised by the pleas, and, if defendants were found to be bona fide purchasers,the bill 'should be dismissed, irrespective of the questionlll of the building of the road, or of fraud in obtaining the governor's Evidence that the governor's certificate of the completion of the road was procured by fraud was inadmissible, when such fraud was not shown to have been com· mitted br. the road compa\lY or its grantees, or anyone acting in its or their behalf, or that eIther had any knowledge thereof. ' '
.. SAME-EVIDENCE-BoNA FIDE PURCHASERS.
... LAND GRANTS-FORFEITURE-EvIDENCE.
The act of congress having determined that the lands might be sold on the governor's certificate of the completion of the road, and the subsequent act Of 1874 (18 St. at Large, 80) having authorized the issuance of patents upon the same evidence, bona fide purchasers from the ,road company had a right to rely 011 such certificate, and, in the absence of any fraud or notice of fraud, evidence that the road was never in fact constructed as required bv the act was immaterial. The lIoct of 1867 provides that such lands may be sold in quantities not exceeding 80 sebtions, "when the governol" of said state shall certify to the secretary of the interior that 10 continuous miles of said road are completed; and so on, from time to time, until said road shall be completed." HeZd, that the fact that the governor's certitlcate was not given until the whole road was completed did not aftect. its validity.
,'- S,urE-.;MILITARY ROAD-CERTIFICATE OJ' COMPLETION.
,6, SAME.
The cel'titlcate of the governor that he had "made a careful examination of' the said road since its completion, and that the same is built in all respects as required by the above-recited acts," was a sufficient certitlcate that the road had been "construoted and completed. "
,6, SAME-BONA FIDE PuRCHASERS-NOTICB.
The 'fact tbat the governor's certitlcate of the completion of tne road was dated only about eight months, after the date of the state act granting the lands, to the road company was not sufficient to put a purchaser from.the road compallyon inquiry, since there was nothing tosho"IV that the work may not have been commencedbefore the date of such grant.
-T.
SAME-DEED-BONA FIDE PURCHASER8.
In a suit by the United States to forfeit certain lands granted in aid of a mllitary road, defendants claimed to be bona ftd,e purchasers under a deed which declared that the road company "does hereby alien, release, grant, blU'gain, sell, and convey" to tl1l1 grantee, "nis heirs and assigns, the undivided oJ;lehalf of all the right, title, and interest" of the grantor "in and to all the lands lying and being in the state of Oregon, "granted or intended to be granted to the lltate of Oregon by the act of oongress approved JUly 2,1864, * * * and granted by;the state of Oregon," to the grantor by Act Or. Oct. 24, 1864, "and the undivided one half of the ,right, title, snd interest" of the grantor "to said grant of land under the several actll aforesaid, whether listed and approved or otherwise, also tbe undivided one halt of all future right, title, and interest, olaim, propert.T, and demand," whiohthe (l'rantor "mS7
680';
FEDERAL REPORTER,
vol. 51.
at6nytime hereafter acquire to any lands by virtue of any further compliance with the j)Cts ofqonSress, together with the hereditaments and appurtenances; * .. .. to have and- to hold the lands hereby granted unto" the grantee, "his heirs and assigns, forever," Held, that this deed shows an intent to grant the ·lands themselves, and nOt: merely any interest which the' grantor may have therein, and hence that it is not a mere quitclaim, such as deprives the grantee of the right to, rely vpontl!e plea of lin innocent purchase for value. U. S, v, O"Hfornia d; QreaQn L<citd Co" 49 Fed, Rep, 496, followed,
Appeal from the Circuit Ct/urto! the United States for the District of Oregon. Affirmed. F. P. Mays, p. S. Atty.· and A. H. Tanner, for appellant. James K. Kelly and A. L. Jilrazer, for appellees. Before GILBERT, Circuit Judge, and HAWLEY and MORROW, District Judges. HAWLEY, Distdct Judge. This is a bill in equity instituted by the United States, in pursuance of the act of congress of March 2,1889, (25 U. S. St. 850,) to procure a decree of forfeiture of all lands granted by congress to the Eltate of Oregon to aid in the construction of a military wagon road from Dalles city, on the Columbia river, toFt. Boise, on the Snake dYer, (14 U. S. St. p, 409,) on the ground that the terms and conditions of the grant have not been' complied with, and that the certificate the' governor of Oregon, upon which patents were issued fraud. The act grantfor a portion of'said lands, was procured ing saiu lands, among other thirigfl, provided: said road shall ba consl ructed with such wid th, gradation. and as til permit of its regular use as a waglln I'oad. lind in such other special mannt'I' as, tile state of Orpgun ma)' prescribt'." Section 3. "That lands hereby to said, stllte slJall be disposed ,of only in the folloWirig that is to sa,v:When the of said state sllall eel'· tilr to the of the inlerior,tlmt ten of sj\id road are completed. then a quantit)' of the land hel'eby gran tell, not to exceed thirty sectiOllS. may be sold, andsu on, from Umeto tillie, until said road shall be cornpll'ted; lind, if said road is not completed witllin fi ve years, no further sales and the lands reUlainil1g shall to the United States. " Section 5.
of
The legislntnre of the state of Orpgon, on October 20, 1868, passed an granting the to .,the Dalles Military Road Com pany, for the same purpose, and upon the (Jonditions and limitations prescribed in the ,act of congress. St.Oi'. 1868, On June 23, 1869, the governor of Oregon gave the following cer· tificate: ,,' .' "I, George L.Woods,governor of the state of, Oregon, do hereby certify or map'tlf,thepll.Hes duly tiled in my DalleS; ail ',I shows, ihcvnnect,ion withthe as saidpu"lic al'e.cvmpJt'Led j , the.location of the line 'otl'oute as actually theil' road is constructed, ,,'itll the Qf congress' lJF3jWj, lS67. lllltltlt'd' All,lIoPt gmnting lall4s, to tile sla,le of Ol'egon"lo aid III the'constl'lIctioDofa mili,l;mJ)l':'iVagon road;from:Dalles city, all" the Columbia river.' and with tbe act of tbe legitilativtI river, to ,Ft. Boise, on the
UNITED STATES'll. DALLES' m:Ir..IT:ARYROAD CO.
631
assembly olthe state of Oregon approved OctOQl}r 20,1868, .entitled 'An act donating certain lands t() Dalles Military Road Company.' J further certify that I have.rn.ade aeareful exalllination of Sl10id road since its completion, and that the same is built in all respects as requited'by the said above-recited acts. and that saiel road is accepted. ... ... ..... ,, GEO. L.WoOI>s." On May 31. 1876, the Dalles Military, Road Company sold and conveyed the lands granted by said acts of congress and the state of Oregon to Edward Martin for the sum of $125,000. The deed conveying, this land was a bargain and sale' deed. By divers deeds of like character. by and through various other parties, the lands were thereafter conveyed to the defendant the Eastern Oregon Land Company. In October, 1889, the circuit court, in considerinK the exceptions of defendants to certain portions of the bill, properly held (1) that the acts of congress and of the state of Oregon constituted the entire statutory contract with the Dalles Military Road Company, and that the statute of Oregon approved October 14, 1862, relative to the construction afroads by private corporations, having been passed without any reference to this Rpecific grant, did not in any manner affect the question as to whether or oot the road had been constructed jn the manuer and within the time prescribed by the act of:cQtlgress; (2) that there not being anything in ejther 9f the acts granting this land requiring the road company, or any person.c1aiming under it, to maintain the road after .it had been completed and accepted by the government in accordance with the provisions of said acts, without any fraud, or notice of any fraud, to vitiate the acceptance, the rights of the Dalles Militllry Road Com pany, and those claiming under it, vested irrevocably upon such acceptance against the United States. U. S.v. Dalles Military Road Co., 40 Rep. 114. . The defendants Henarie; Martin, and the Eastern Oregon Land Company,by leave of the court. filed two pleas to the bill, supported'byan auswer: (1) That the issuance of the certificate .of the completion of the road by the governor was without any false. or fraudulent representation on the part of the Dalles Military Road Company, or anyone in its interest or behalf; (2) that the defendants purchased the lands in question in good faith, for a valuable consideration, without notice of any fraud. These pleas were set down for argument as to their sufficiency. The court held that both pleas were sufficient in law, and dismissed the bill, without giving the United States, as complainaut,any opportunity to reply. U. S. v. Dalles Military Road Co., 41 Fed. Rep. 493. An appeal was thereupc)ll taken to the supreme court of the United States, and the court, after giving a detailed statement of the facts and discussing certain features Qf the case, said that" the decree must be reversed in so far as it, dismisses the bill. and the case be remanded to the circuit court, with adiJ!ection to allow the plaintiff to reply to, and join issue on, the pleas." U. S. v. Dalles Military Road Co., 140U. S. 599,11 Sup. Ct. Rep. 988. " When the case came back a decree was regularly entered as directed by the supreme court, and, in due time, replications to said pleaa wl'lre
:FEDERAL BEPORTER,
1'hereafter, by leave of the cotirt', both pleas were amended by p'ut·morespecifically the facts1.lpon which said were based. ,'tl:lenrnt,alleges, among other that the governor of Oregon, "without APy,wlse or fraudulent representations having at any time been made to him by the officers, stockholders,. or agents of the Dalles Military Road'{)6mpany, or any other person,or persons in its or their interest, and without anyone or more of them hqving falsely or fraudulently induced:bim to certify that the road of said company was constructed in ll.ccordancewith law, on the,23d day of June, 1869, issued in favor of said totllpany" the certificate heretoforeqtioted in fulL It further alleges the sale of the road :toiEdward Martin for a valuable consideration, and froxn Edward Marthiandothers toihe Eastern Oregon Land Company. The second plel1sets out the issuance of the certificate by the governor; the withdraWilHrom sale· olthe lands by the commissioner of the generaHand office on ,the 18tl:1 of September, 1869; the act of congresSapproved June 18, '1874, "authorizing the issuance of patents for lands granted to the state o{Oregon in certain (:ases," (18 St. U. S. p. 80;) alleges:' '·. :
.
Ii resident of f)an Francisco. in th,e state of confideric'fin the truth of the eertificateof the governor of the state of Oregon "'lII' * that the said road had been duly constructed accc:>rdirtg oto the reqUirements of the said act of congress; ... ... ... and also placing confidence in the order of .ure commissioner oftbe general land office, .... -Withdrawing the lands from sale in favor at the Dalles Milibelieving that the said act of congress approved effe.ct by issuance to Dalles n:oadCompany fOl· all at said lands.-did, on the alst day of May, 1876.pul'chase in good faith, for a valuable consideration. * . * * all the lands embraced in the grant to said company, except such portions thereof as had'beenpreviously sold by it; that previous to the time of paying the sum of $125.000 purchase money, and receiving said dl3ed, the said Ed ward Martin had .no notice of any failure on the Dalles Military Road Company to and completl1 tbe.said road. in accordance with the requirements ofsaid act of congress appro.ved February 25. 1867. and he had no reason to believe that ,the same was not constructed in accordance With the said act of congress. 'but. on the contratf. he was hiformed and believed that said road had been constructed with lhicb width, gradation. and bridl{es as to permit of its regUlar use.as a wagon road; that thereupon the said Edward Martin blland. WI's. the bona fide purchaser. for.a valuable consideration, of all Slloid then owned by the Dalles Military Road which were then conveyed to: by said corporation." . The plei:rthen alleges the lIa:Ie of certain interests in said lands, and the 'various mesneeonveyances.made at different times without notice of any frand, and that the Eastern Oregon Land Company now holds the title to all the said lands granted by the act of congress, except such as have heretofore been sold to other When the case, upon these pleas, was called before the examiner, the United States introduced a witness, by whom they offered to prove that the road had not been construoted or. completed as required by law. The defepdants objected to. this character of testimony I upon the ground
UNITED STATES fl. DALLES MILITARY ROAD CO.
633
that, the burden of proof to establish the truth of the pleas being on the defendants, they should first be allowed to introduce their testimony, and upon the further ground that testimony as to the construction or nonconstruction of the road was not pertinent to the issues raised by the pleas and replication. The objection, having been certified to thecourt, was sustained. After the testimony for the defendants was completed, the United States again offered to prove that the road had never been constructed, and that the certificate of the governor, certifying to its completion, was procured by fraud and false representations. Defendants thereupon objected to any testimony being given as to the nonconstruction of the road, on the ground that it was immaterial, and not pertinent to any issues raised by the pleas, and objected to any testimony offered as to fraud and false representations being used to procure the governor's certificate, for these. reasons, unless it was first shown, or was intended to be shown, that the fraud or false representations were made or used by the defendant the Dalles Military Road Company, its officers, stockholders, or agents, or by some one for it or in its behalf. These objections were likewise sustained by the court. The Dalles Military Road Company and James K. Kelly, its president, and C. N. Thornbury, its secretary, on October 25, 1889, filed their separate answer to each and every paragraph of the bill, and therein alleged tbat the road was constructed, in all respects, as required by law, without any fraud, and gave at great length the particular manner and time of its construction and completion. They affirmatively allege, among many other things, that in March, 1869, the Dalles MilitaryRoad Company "had a continuous road from Dalles city, on the Columbia river, to Ft. Boise, on the Sna.ke river, over which teams of eight or ten horses or mules or five yoke of oxen could and did pass over the entire length of said road, * * * hauling as much as five tons of freight at a load; that it was constructed with such width, gradation, and bridges as to permit of its regular use as a wagon road;" that the governor of Oregon at the time of the execution of his certificate well knew from an examination made by him, "and by good and sufficient proof from reliable persoDs examined by him, that the said road was constructed inaH .respects as required by the act of and was fairly accepted by him; that the road was so constructed as to permit the transportation of property, troops, and mails of the United States over the same, and * * * was so used when said road was accepted by the governor." No replication was ever filed to this answer, and on November 27,1891, the court, upon motion of defendants' counsel,dismissed the bill as to said defendants, under the provisions of equity rules 61 and 66. for failure of complainant to file a replication. Thereafter complainant moved the court to set aside said order of dismissal, on the ground, among others, that the reply filed to the pleas of the other defendants was a sufficient replication to said answer, and, if not, that leave be granted to file a replication nunc pro tunc, which motion was denied. On December 7, 1891, the pleas of the defendants the Eastern Oregon Land Company, Henarie, and Martin came up for hearing, and the court held that the
634)
the evidtmce,itnddismissed the bill as to said defendants:.. >From,the orders of the: court dismissing the bill, complainant:appesll:rto this,court; ;);-HI il:' ,Th,ia icmie,'dn'lR'e!irly aU Of itsesE\etttial features presents;preoisely' the 'were! deoidedl, bythia oourtiin S.v,.! Oalij'ornia& Orego\t;t Lmd"<l:J. ,A9<Red. 'Rep; 4<96;; and :upon theatithorify'of that case the.circuit court'snquld be affirmed. .But j,nRsmuch as the clltimed to: be of vital imp()l'tance to many perMDi in"Qregon' who; .have settled: in that portion qf:the state where , i are'JQlJated,'l1lnd at whose instance theautbority of eongx!eSl fW8llobtained' :to institute :th[s, -suit, as well as 'Of .great interest to "the'Jparties00' the 'snit,' we,have1qeeriIed, it proper to more fully state the factll;,and;to:agaiu1leview, riJoi'a:in'd:etail,some ,of' the various legal been so ably and thOl:,oughlyr: discussed by the respectiveco\ulsel inbQtlll cases'.lJ lIDmere is really. but one question involved' dn1thiscase; the evidence? 'It is, how.e\'er,'oontendedthat'theactliof,congress authorizing,this suit to be of all the facts prebrought required a full and sented'b)r,tHe'/bill, and that the de<;ision of the supreme court in this case right, when 'it 'reversed the decision of the circuit ,:",> court. It iSU1ue that·theact of,,congress,autharizedthe suitta be "To 'deterililile:'ltbequesti'OIiS' oftne :teltsonable and proper completion 'of vt'ith tbe the granting acts, eitber in whole said or in parktM.legl\letfect of tbe severlU'certificates of the governors of the state of Oregop pf, the. completion Of. said. roads, and tile., right of resumption of such by the al)d to obtain judgments, Which to lender, 'declarjng forfeited to the United il:t.h48, -Ijo' . ·';'.. . 'not ootisttuCted in accordance StatesalJ with reqlJiteinMfsiot' the grBntingacts(atld setting aside patl:lrits which have issued tor 8l1y'81.1chlanda,f saving and'prresel'vingthe rights of all bona fide p.UI'(:hflsers of'sahl 'or;of" any :portion of S:aid grants, for.8 valu,alJle ifi4N'"u.ch be," 25 St. 'IT. & p. 851. ·.
'sucli'
The object bfthisact to have a in the courts upon all the legal issues'tha.t might be presented by the pleadings. As was said by thesup1'erile ,Court:' ..... ..... .... '.. .... . .. '''It is tbe act that suits to be tried rpanniifand lJy tMsame principleS and rules of juris. prudence as othei"' s'llits;'iD' eqlllty, congress intended Ii full ahd If'gal in· vestigationoftbll'factsland did not intend that the important intt'resta involved s1:l01.1ldb.t deterIQhl-ed .upon the untested alleglltioIlS of the defend" u. ·· U. S. 11 Sup. Ct. Rep.
;0;
The :pleasshould'· be The United States wasentitledi:W ,tilea'tepli£'Jltionthereto; was entitled to have aU the facts hsviing ,a;ny legitimate'bearing UPOlt the truthodalsity of the j>1eas determined [by thecourtSjand the court erred in dismissing ·;the bill wiihout:allbwirlg.the United States to have such a hearing. The deci;' sion of thesnpreme court is unquestionably correct,and it has been.
UNITED STATES tI·. DALLES "MILITARY :ROAD CO.
635
strictly followed by the circuit court in this case. The merits of the pleas have been investigated.. The decision of the supreme court recogdzed the sufficiency and validity of This is manifest from the language of the opinion: "We are of opinion tbat. the circuit court erred in not permitting the plaintiffs to reply to the pleas, and in dismissing the bill absillutely. ·It is pro,vided by. rule 33 of the rules of eqUity that the plaintiff !Vay set down a plea to be argued, or may take issue. upon it. This, does not mean that the plaintiff is to make thereby sucb a conclusive election that,.!f be sets down the plea to be argued, and it is sustained on the argument. cannot afterwllrds take issue on it. By ruJe 34. on the overruling of apia. on hearing. the defendant bas a right to answer tbe bill. The object of baving a plea set down for bearing is to induce the presentation to the court, ·as a question of law. of the matters set . up in the plea, so that. allsum. ing .thf'se matters to be true inpointotfa<;t. the whole controversy may. perhaps, 'be determined asa question of law. ... ... ... Variousmattel'5 ·of fact are alleged in the pleas. which the plaintiffs bave a right to controvert. Buch as that there were no fraudulent reprf'8entatiolls made to the gOY. -ernor; tbat he made the certificate without any fraud on his part; that -Mar. tin was a bona fide purchaser for a valuable consideration. without notice; that Renarie was likewise; ,and that the subsequent grantees were such bona fide purchasers." 140 U.S. 616. 617, 11 Sup. Ct. Rep. 91)8. The cases were sent back to be tried upon the issues raised by the pleas. If the plea of being bona fide purchasers was found good, then the bill should be dismissed. If, under the facts, it was' found to be untrue, then the parties would still have the opportunity to try the case upon the other allegations of the bill and answer, and have it determined whether or not the road was in fact built- as required by law. This is in accordance with the plain provisions of the act of congresS, .and. of the language used by the supreme court with relerence thereto. Are the pleas sustained by the evidence? Before reviewing the evidence, several preliminary questions, discussed by counsel, will he disposed of. Is the certificate of the governor defective? Does it comply with the provisions of the act of congress? Did the court err in excluding, the evidence offered by the United States to show that the certificate was obtained by fraud? Are the subsequent purchasers charged with any notice by any of the conditions in the various acts of congress or of the -state of Oregon? Are the deeds conveying the land to the subsequent .purchasers of such a character as to allow them to rely upon their· plea .of being bO'lUJ.jide purchasers for value? The act of congress does not prescribe any particular form in which the governor's certificaw shall be issued: "When the governor of· the state shall certify ... ... ... that any ten continuous miles of the said road are completed. then another quantity ()f land hereby granted. not exceeding thirty sectjons. may be sold, and so on, from time to time, until the said road is completed." The fact that the governor's certificate was not given upon the com· pletion of each section of 10 miles does not affect its validity. The oorporation defendant might have required the governor to examine and
,I'EDERAL REPORTER,
certify :to'tbe completion of each 10 miles of the road as it progressed, to enable it to get certain lands, from the sale of which they might obtain sufficient means to ,build other' sections of the road, but it certainly lost no rights by waiting until the road was fully completed for the entire distance. It would be manifestly unjust to hold that the parties completing the road with their OWn means could not be entitled of the grant,because the act stated that the lands should of aspro\iided in tbe/lct upon the completion of each 1,Q ::mUWI';fl.Pd that tbegrarited lands II shall be applied to of said, road, and to no other purpose, and shall be disposed,of only as the work progresses." If an owner of a town lot should m:a.ke ftoeontractwith a contractor to construct a building upon said lot. and to make payments every 30 days as the work progressed. to bema.de upon the certificate of a supervising archi'a certain I1mount of had been used or labor performed, and that the amount of the payments should only be used for the ,purllose of paying for the materials and for the labori and that after such contract was entered into the contractor bought and paid for all the materiiJJs, and paid for the labor, and made no demand for payment until the building was' fully completed according to the contract. would the courts entertain a defense of the owner of the lot that nothing was due, because the payments were only to be made as provided for in the contract, ana the certificate, of tbe architect only set forth the fact that the buildjrlg had been as required by the contract? Certainly not. A bare statement ofthe facts is a sufficient answer to the argumentor counsel. It is absolutely devoid of merit. It is claimed that the language of the certificate of the governor, that he has" madp, a careful eXllmin!i.tionof the said road since its completion, and that the same is built in all respects as required by the above-recited acts, and that said road is! Qccept,ed," is not in compliance of'the act of congress of June 18, 1874, in that it does not certify that the road has been" constructed and completed:" rfhe certificate of the governor in this respect is not defective. It would bea play upon words; a reliance upon form instead of substance as to the meaning of words, to hold that the use of the word " built," as used in the certificate, is not equivalent to the word" constructed," as used in the' act of congress, and, in this connection, it is difficult to see how it· can with· any degree of consistency be claimed that the certificate of the governor does not show that the road had Leen cOlnuleted. How could he have certified that he examined the road "since its completion," and that the same was builtin all respects asrequired b)' law, unless itwas constructed and completed as required by tlie act bfcongress? The certificate substantiallY conforms to all the requirements of the acts of congress. Another alleged suspicious circumstance is mentioned and relied upon by counseL The statute of Oregon granting this land was approved October 20, 1868, and the certificate of the governor was made July 23,1869. This short period of time is said to be such a striking thing that SOBS
UNITED STATES v.DALLES MILITARY ROAD CO.
837
it could .not have "escaped the attention ofthe purchasers if, as they claim, they relied upon it when they made the purchase." Our attention has not been called to any provision in any of the acts prohibiting any work being done by anybody upon the roud until after the grant is made to some person or corporation by the state of Oregon. The certificate of the governor Goes not state that the road was built in eight months,"-the time intervening after the lands were granted by the state before the certificate was given. For aught that appears in the acts of congress, the act of Oregon, or the certificate of the governor, the road might have been fully coustructed and completed before the last-mentioned ,act was passed, and, if this were true, it would not affect the validity of the grants, or of the certificate of the governor. Whatever the facts may be, it is enough to say that the purchasers were not put upon .anynotice to ascertain at what particular time, or within what particular time, the road was built. The governor's certificate being valid and sufficient upon its face, did the court err in excluding the evidence offered to show that it was obtained by misrepresentation and fraud? No objection was made to any evidence which the United States might offer to show that any fraud was committed by the Dalles Military Road Company , its officers, stockholders, or agents, or by any person in its or their behalf. No offer was made to make any such proof. It was not proposed by the United States to in any manner connect the Dalles Military Road Company, or any of the other defendants, with any fraud or misrepresentation, or to show that it, or they, or either of them, had any knowledge or notice of any fraud in this respect. What was the use of taking up the time of the court, or its officers, in taking testimony that was, wholly aud manifestly irrelevant to any issue in the case? The, defendants could not be held responsible for any fraud or misrepresentation committed by others, if any was committed by anybody, unless it was proposed to show that they had knowledge thereof, or wore in some manner legally bound thereby. The objection to the evidence as ,offered was properly sustained. The court did pot err in excluding the testimony offered by the United States to sh.;nv that the road had never been built as required by the act of congress. The answer to the argument of counsel is found in the act of congre!;lS granting the lands. This act declared what should be considered conclusive evidence as to the building and completion of the road. The purchasers had the right to rely upon such evidence, and to act UpOD it, if there was no fraud, or no notice of any fraud, upon their part, What further facts were legally necessary for them to inquire into? The act itself declared, designated, and determined the kind, character, and nature of the proof that would be suffident to establish the fact of the construction and completion of the road. In 1874, five years after the certificate of the governor was given, congress passed an act which, after reciting the facts that certain lands had been theretofore granted by congress to the !)tate of Oregon to aId in the constrllction of certain military roads in said state, and that there no law for the issuing offormal patents for said lands, provided:
6:8b' of of . of been and completed, 'form' t6 as fast 'as the sallie shalW said gratHs. be' selecledand 'cei"f,lfied. un less the state of sl'laUby'public,act'have>trallsferred its interests ,in said lanosto ,any corporillLiQn·,or corporations., inwbicb case ttie:patlents shall issue from the general lan4l ()fJice tq such corpor!\;tipn or corporatfp,ns. :::.t. U. p·. 80.
.,crfl'bJ}tjp. 1i;tnds W:W:'!3 tehlJ ()fOreg()n,8l'1Jn salQ 8ctsprovlde<l.to
m
All thatwasl'equiredbythis act was the fnet thatthe of Oregon had issued a certificate that the' road had Been' constructed and eompletedas in'said acts provided. The wisdot:riofBueh a provision is not the subject of discussion.: Congress created ,the witness, and deelated' that his testimony, itlth't'!'shs'pe of a certificate'i 'would be sufficient evidence that the road had been: built. When this proof was presented all thetestimony1which reasonable, prudent,andcareful businessmen, acting in good faith, without any knowledge or notice of any fraud, were required to 'e:ltarriine. Congress authorized patents to issue upon such proofs, and tbeafficers of the government of the United pri9r to'the sale oHhe laMS tothe defendants in the pleas, had issued patents upon such probfi1ftb 'a portion of the lands specified in the grants. In the light of all' these facts, the purchasers certainly had the right to rely upon ·the gaodfttithof the government of the United States, and to act upon thecetti:6eltte, and repose confidence in the truth of the ,facts' therein stated, and were not required to go behind such proofs, alid personally inspect and examine the road to see whether or not said certificate was· false before purchasing the lauds. There is no evidence in this case tending, in the slightest to show that the purchasershad:designedlyabstained from making any inquiry as to the constructi0J;l and completion of the road, for the purpose of' avoiding any 'knowledge. The authorities cited by appellants, touchingthe responsibility of parties under such circumstances. have no ap' , plication whatever to the facts of this case. It is argued here, as it was in p. S. v. azlifornia·&;O Oregon Land 0>., ,mpra, that the deed from the i)alleeMilitary Road Company to Martin was a quitclaim deed, and for 'that reason the defendants were put upon inquiry as to the title, and lire not entitled to maintain their pleas of being bona fide purchasers for value·. ' The facts. do not support the argument of counsel. The deed,' as we have already said, was a bargain and sale deed, reciting that: ''''the company, in consideration of the sum of $125.000. toit in hand paid, has granted, bargained. and sold. released and conwyed. and by these presents 'it does bargain. 'sell. release. and convey, unto the said party of the second part. his heirs aUdassigns, all the lands lying and being in the state to saJd state by act of congress of Oregon, granted approved FebJ'uary 25.4, D. 1867,..... ... ... ;lhe right to a patent or for said lands grante?,to of the first part by act of congress approved June 18, 1874, which said lands Were granted ... by the state of Oregon to the said 'Dalles. Military Road Company, .. which saitlseV'eral acts ,are hereby made part hereof, and all the right. title, andinterestll.cquired, 00 to be acquiI'ed. ,by the party of the first part, under
UNITED 8'l'A.TE,$ f1.
'MILIXARY ,ROAD CO.
639
thes;dd several acts hereinbetorefeferred, to. o,r eitherottpem j · * '" it the of,the of the first, to convey, an,d it does. hereby convey, to the party ot thesecond:'part, said lands; '" * * to have and to hold the lands herebygral)t,ed, and every part and parcel thereof,linto the said party of the seoondpart, his heirs and assigns, forever." ,,'
There isnothipg in the form or languageof this deed to imply, in the slightest degree".tl;tat ,t4ecOIweyance wall only of the speculative right, title, and iI\terestof the corporation. The. other deeds to the other defendants a,reof,thesame cbaracter. It is, in this connection, claimed that, because Martin 'first procured the shares of stock of the corporation was consideration was paid fOf the 'deEid, Rnd are hat bona flcie purchasers. The truth is,asshown by teiltimony.that' Martin, acting un<;ler t4e a<;lvice of c!Mlllsel, procured the legal title to the. stock of the corporation , as,well,as&. ,deed direct from the corporation, for the purpose of preventing'any question as to the validity ofthe the hmds. :'There is nothingin'the deed, nor in the manner in which it was obtained, nor in any facts to tlie which legally deprives, ,the "Ir either of. them, from, !issei-ting or, their under the plea of beIng bona fide purchasers for value. The testimony clearly sbowsthat full value was paid for the lands; that before the purchase was made an abstract of title was prepared by competent persons, and the 'opinions ofa:ble attorneys as to thevalldity of the title procured; precaution, as e:x;ercised by cautioua, careful, and prfldent men, waspbscryed, in order to ascertain whether the title was valid;thlXtneither Martin, nor either of the other purchasers, had any knowledge; notice, orsuggestidn, of any kind, character, O,r nature whatever, that the road had not been cQnstnwted or completedas required by the acts of congress, or of the act of the state of Oregon, qr that th,ere wasuny fraud in obtaining the governor's certificate that it was so constructed a,nd completed; that 110 noticewusgive11 or claim made to tht:lm, oreith'er of them, or to any person, to their knowledge, that. the United. Sta:tE1s" or any person or 9orporation except the Dalles Military Road Company and its grantees, had any claim or ownership to lands, or any part thereof. Every living witness who was in any way or manner. with the,sale or purchase of the propwas in a position to have known tile facts, was examined by the erty, defenda,nts. Noofier waslllade to contmdict their testimony. C. N. Thornb:ury" ",ho was secretary of the Dallelil Military Road CompanY at the tirnethe deed was ,made to Martill , and an 014 resident of The Dalles, testifieq that there had not been at the time of the sale any public talk Or claim of fraud in the matter of the governor's certificate of the construction of the road, to his knowledge., and that he would have been likllly ,to have heard of it jf there !lad heen any such talk; that he. had not at thllt time, or at .any time prior thereto, ever heard that anyone questioned the validity of the title of the Dalles Military Road Company, or that there was any suspicion of fraud in procuring the governor's certificate, or in any of the transactions of the company. The testimony
640 OfWilliatrll>'Grant;wbOwas secretary oftlle compaqyprlor to'l'hotnbury, andhadl,ived in the state of 30 years, arid atGrimt, Or., JpD:liles of the grant,. for 14, years, is to the effect. P. J. Martin, acted l:\Stlle agent of ,brother Edw,ard Martin, and Mr. Phelan in making the purchase, testified fully in regard to all the transactions wHh the corporation and' its stockholders. ' The following questions and answers illustrate the 'general characterof'his testimony: "Questiott. Mr. Martin, prior to the time and at the time of your purchase of these lands for your brother and Mr. Phelan, as you have narrated, had you heard any claitn or assertion that there was fraud in the construction of the Dalles military road, or in procul'ing the governor's certifi<late that the !,lame had been constructed, or in procuring ,the president of th!! United states to patent part of these lands, or the secretary of the interiortolistthe same, or had you any that woutdlead you to believe or suspect that there had been'fraud in any of these acts? Answer. None whatever. I never heard anything against the title, or anything different at the time, and I certainly must haVe heard,of: it if there W8S11nY such report abroad; I never heard anything going aqout, or anything against the title. ... ... ... Q. At the time you acquired tllis interest, did you have any knowledge o,r information that would lead YOu to believe there was fraud in the construction of ,this road, or in procuring the governor's certificate? A. Why, certainly not, or I would not have paidttiy coin for it. ... ... ... 'Now, you may state if; at any time this property was transferred to the Eastern Oregon Land Company, any of the incorporators of that company" or the. stockholders. therein, to your knOWledge, ha!l any inform.ation of any fraud in the construction of this road, or in the procuring of the fovernorls certificate of completion of the road, or in procuring tile listing 0 the lands by the secl'etary of the interior, or the issuing of patents on the part of the same by the president of the United States, or any f'raud whatevet connected w!ththe business. A. None whatever, that 1 ever heard of, near or remote. II
Edward Martin is dead. James Phelan's testihlOny;and that of every other living witriesswho had anything to do with the transaction, is to the same effect. It therefore affirmatively appears that the defense of bm/i fide purchasers was established by 'and sufficient evidence, under the general rules of equity practice, and the saving clause iIi the actof'congress, authorizing the commencement and trial of this and other causes.' It is apparent that it would have been an idle, useless, and expensive waste of time and means to have gone into the inqniryaHo whether each and every mile of the 330 miles of road,or of any 'part of it, had ever been constructed or completed. That fact was wholly immaterial to the truth or falsity of the pleas. The qnestion as asked and the offers 8smade by· counsel for the United States were wholly irrelevant to a.ny issue raised by the pleas. The court did not err in sustaining the objections of defendants thereto. In view of these conclusions, it is immaterial whethetthe court erred in refusing to allolv the complainant to reply to the answer of the Dalles Military Road Company. or in dismissing is affirmed. the bill as to it. The Judgment of the circuit
WIBB ·· JEFFERIL
641
WISE (Cff'C'Il«t
et aI.
t1. JEFFERIS.
of Appeals, Ninth Oircuit. July 18, 1891.)
I. &.
Wa01'l'GJ'OL ATTACHMENT-REIllEDIllB-REPLBVIN.
One whole property has been wrongfully seized under a writ of attachment, to which he is a stranger, is not confined to an action on the official bond of the sheriff, but may.bring an action of replevin agalnst him individually. In an action against a sherit! to recover goods, or the value thereof, taken by him under a writ of attachment from the possession of a stranger to the writ, the faot that he has subsequently turned them over to a receiver, in accordance with an order of court made in a third suit, to which plaintit! was not a party, is immaterial, since his liability arose at the time of wrongful seizure, and was not a1feoted by the subsequent disposition of the goods.
B.um-DEFENSES.
&.
BlllE-PLEADINGS AND EVIDENCE.
In replev!n against a sherift for the wrongful attachment of goods held by plaintift's agent under a bill of sale given by the person whom the attaohment was directed, as seourity for debt, the sherit! cannot prove that the bill of sale was made for the purpose of defrauding other creditors, when the only fraud averred In the answer was that the agent used the bill of sale, after its exeoution, falsely and fraudulently, for the purpose of gaining a secret advantage over other oreditors of the seller.
SAME-DEFENSES.
I.
If the allegation of fraud by the agent were admitted to be true, the sherift could not' justify under the writ, however regular, without showing that he had first made a tender of the sum due from the common debtor, as required bJ' Comp. St. Mont. 5 1546.
SAME-PLEA.DING-AMENDMBNT-NEW CAUSE OF AOTIOlll.
In replevin in a federal oourt defendant pleaded in justification that he was a sherift, and took the goods under an attachment issued by a state court. At the close of vlaintifts' evidence, defendant moved the court to direota verdict for him. This was denied, and plaintifts thereupon obtained leave to amend their replication so as to allege that the suit in whloh the attaohment issued was determined, the judgment satisfied, and the property disposed of long prior to the commencement of the present suit; and proofs were thereafter given by both parties. Held, that the amendment did not set up a new cause of aotion, but was merely an additional replication to the new matter pleaded in the answer, and its allowance was within the court's discretion.
In Error to the Circuit Court of the United States for the District of Montana. At Law. Action by Maurice Wise and others against Charles M. Jefferis to recover certain goods, or the value thereof. Verdict and judgment for plaintiffs. Defendant brings error. Affirmed. Toole &; WaUace and W. S. Wood, for plaintiff in error. OuUen, Sanders &; Shelton, F. M. Dudley, and E. W. McGraw, for defendants in error. Before GILBERT, Circuit Judge, and DEADY and HAWLEY, District Judges. HAWLEY, District Judge. This suit was commenced in the United States circuit court of Montana, on the 22d day of October, 1890, for the recovery of the possession of certain goods and personal property, or for the value thereof in case a delivery could not be had. The cause ""as tried before a jury, and a verdict found in favor of the plaintiffs. It appears from the record that on the 18th of March, 1889, and prior thereto, J. E. Landsman, as the &uccessor of Landsman & Co., was con.v.51F.no.10-41