.446

chief, may each select, on or near the lake shore, four sections of land, under the direction of the president, the boundaries of which shall be defined hereafter; and being desirous to provide for some of his connections who have rendered his people important services, it is agreed that the chief, Buffalo, may select one section of land, at such place in the ceded territory as he may see fit, which shall be reserved for that purpose, and conveyed by the United States to such person or persons as he may direct;' and whereas, it appears from a return, dated the twenty-seventh day of September, one thousand eight hundred and fifty-eight, from the office of Indian affairs to the general land-office, that there has been selected and approved for Shaw-bwaw-skung, or Benjamin G. Armstrong,' as one of the connections' of said chief, Buffalo, the west half of the south-west quarter, and lot number five, both of section twenty-seven, and lot number three of section thirty-four, containing together one hundred and eighty-two acres and sixty-two hundredths of an acre, all in township fifty north, of range fourteen west of the fourth principal meridian, in the state of Minnesota.

*"Now, know ye that the United States of America, in consideration of the premises, and in conformity with the clause of the said treaty as above recited: Have given and granted, and by these presents do give and grant, unto the said Shaw-bwaw-skung, or Benjamin G. Armstrong,' and to his heirs, the tract of land above described: To have and to hold the said tract, with the appurtenances, unto the said 'Shaw-bwaw-skung, or Benjamin G. Armstrong,' and to his heirs and assigns, forever.

"In testimony whereof, I, James Buchanan, president of the United States, have caused these letters to be inade patent, and the seal of the general landoffice to be hereunto affixed.

"Given under my hand at the city of Washington, this twenty-third day of October, in the year of our Lord one thousand eight hundred and fifty-eight, and of the independence of the United States the eighty-third.

"By the president:

[Seal.]

"JAMES BUCHANAN.

"M. GRANGER,

"Recorder of the General Land-office. "Recorded vol. 2, pages 376, 377."

"By T. J. ALBRIGHT, Sec'y.

Benj. A. Willis, for plaintiff in error. Gordon E. Cole, for defendant in

error.

Mr. Justice MATTHEWS, after making the foregoing statement, delivered the opinion of the court:

The plaintiff in error has assigned errors in several particulars, in the finding of facts, but as there is no bill of exceptions setting forth the evidence, no error of law can be assigned in respect to any finding of fact, and we are necessarily restricted to the question whether, upon the facts as found, there was error in giving judgment for the defendant. An argument is also addressed to us by counsel for the plaintiff in error, in support of the proposition, that, if the deed under which he claims title were not effectual to convey the patented land by reason of a mistaken description, equity*would relieve the plaintiff by reforming the deed. But, plainly, no such question can arise on this record. The proceeding is not in equity to reform the deed, but is at law to recover possession by virtue of an alleged legal title under it. We are dealing with the legal title alone in this action; any equities supposed to control it are not the subject of present consideration, and must be excluded altogether from the discussion.

The case of the plaintiff in error rests upon the proposition, maintained in argument by his counsel, that the deed of Armstrong and wife to him, of September 11, 1856, is capable at law of being construed, and must be con

strued, as a valid and effectual conveyance, not of the particular tract of land described by metes and bounds, but of any and whatever section or tract Armstrong was then equitably entitled to, under the treaty, by virtue of the appointment of Chief Buffalo, to be thereafter specifically designated, and the legal title conveyed by the patent to be issued therefor, which, when issued, would inure to the benefit of the plaintiff in error as the previous and first grantee of Armstrong, and clothe him with the legal title to the land therein described. And in this view it is contended that the case falls within the rule of the decisions in the cases of Landes v. Brant, 10 How. 348; Doe v. Wilson, 23 How. 457; Crews v. Burcham, 1 Black, 352.

In Doe v. Wilson, as explained and confirmed in Crews v. Burcham, it was held "that the reservation created an equitable interest to the land to be selected under the treaty; that it was the subject of sale and conveyance; that Pet-chi-co was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee." And in the last-named case (Crews v. Burcham) the court say: "We think it quite clear, if this patent had issued to Berion in his life-time, the title would have inured to his grantee. The deed to Armstrong recites the reservation to the grantee of the half section under the treaty, and that it was to be located by the president after the lands were surveyed, and then, for a valuable consideration, the grantee conveys all his right and title to the same, with a full covenant of warranty. The land is sufficiently identified to which Berion had the equitable title, which was the subject of the grant, to give operation and effect to this covenant in the issuing of the patent within the meaning of the act of congress; that is, the act of May 20, 1836, (5 St. 31.) The act declares the land shall inure to and become vested in the assignee the same as if the patent had issued to the deceased in his life-time."

In these cases, it will be observed, the land conveyed before the issue of the patent was the same described in and conveyed by the patent, and no question arose, as there does here, as to the identity of the description in the two conveyances. In Doe v. Wilson the court charged the jury, and correctly, as it was held, that "the description of the land in the deeds from Pet-chi-co to Coquillard and Colerick, from Colerick to Coquillard, and from Coquillard to Wilson, are sufficient to identify the land thereby intended to be conveyed, as the same two sections of land which are in controversy in this suit, and which are described in the patents which have been read in evidence." 23 How. 462. In the present case, however, the land described in the deed from Armstrong and wife to the plaintiff, of September 11, 1856, is not the same land, in whole or in part, as that described in the patent from the United States to Armstrong. This want of identity, so far as the description by metes and bounds is concerned, is admitted; but it is insisted that this part of the description may and ought to be rejected from the deed of September 11, 1856, as a matter of construction, on the principle of the maxim, "Falsa demonstratio non nocet," and that enough would still be left to identify the land conveyed by the deed to the plaintiff with that described in the patent to Armstrong. This, however, is not correct. If the alleged erroneous description were stricken from the deed, what would remain would be as follows: "One undivided half of all the following described piece or parcel of land, situate in the county of St. Louis and territory of Minnesota; * * * being the land set off to the Indian chief Buffalo,' at the Indian treaty of September 30, A. D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government docu ments," etc.

This description, thus remaining, refers to land already at the date of the deed set off to the Indian chief, Buffalo, and described in an existing document in the archives of the government, and cannot possibly, therefore, em

brace the tract subsequently selected and designated and described in the patent of October 23, 1858. And the references which must be relied on to furnish any description whatever for the land conveyed by the deed, when applied, result simply in restoring to the deed the particular description by boundaries which for imputed error had for purposes of interpretation been

struck out.

The case is not one to which the maxim invoked for the construction of the deed can be applied. That rule of interpretation, which rejects erroneous particulars of description, where what is left sufficiently identifies the subject of the grant, is adopted in aid of the intention of the grantor, as gathered from the instrument itself, read in the light of the circumstances in which it was written. But here it is expressly found as a fact by the court, in reference to the land originally selected by Buffalo, and described in the deed from Armstrong to the plaintiff, "that the land Buffalo had in view and intended in such designation is not included, nor any part thereof, in the patents subsequently issued by the United States to the relatives of said Buffalo named above," and "that a large portion of the land embraced within the courses and distances of said deed is covered by water, and that portion which is not covered by water in said description is land which Chief Buffalo had in view and intended to embrace in his selection as aforesaid, but does not embrace the land involved in this suit." So that the description of the land in the deed which it is sought to reject, because it is inconsistent with that of the patent, is an accurate and not an erroneous description of the land intended by the parties to be embraced and conveyed by the deed from Armstrong to the plaintiff.

It follows that there is no error in the judgment of the circuit court, and it is accordingly affirmed.

(113 U. S. 452)

CHASE v. CURTIS and another.

(March 2, 1885.)

1. CORPORATION-LIABILITY OF TRUSTEE UNDER LAWS OF NEW YORK.

The twelfth section of the New York legislative act of February 17, 1848, controlling "the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," is penal in its character, and must be construed most favorably for those sought to be charged under it, and with strictness against their alleged liability. Under such a rule of construction the language of the act is limited by its own terms to a liability, on the part of the trustees, to debts of the corporation arising ex contractu.

2. SAME-EVIDENCE-EFFECT OF NEW YORK ACT-JUDGMENT AGAINST CORPORATION AS EVIDENCE AGAINST TRUSTEE.

The effect of the New York legislative act of February 17, 1848, is not to make a judgment against a corporation evidence or a ground of liability against the trustees. Such liability is founded upon the obligation of the corporation on which the judgment itself rests.

3. SAME-JUDGMENT IN ACTION OF TORT-CONTRACT.

A liability for a tort created by statute, although reduced to judgment by a recovery for the damages suffered, does not thereby become a debt by contract.

In Error to the Circuit Court of the United States for the Southern District of New York.

*The complaint in this action, after alleging that the plaintiff, who is plaintiff in error, was a citizen of Pennsylvania, and the defendants citizens of New York, proceeds as follows:

"Second. That at the times hereinafter mentioned the defendants were trustees of the Union Petroleum Company of New York.

"Third. That the said company is, and at the times hereinafter mentioned was, a corporation organized pursuant to an act of the legislature of the state of New York, entitled 'An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,' passed on the seventeenth day of February, 1848, and the amendments thereto, its principal place of business being in the city of New York.

"Fourth. That the said plaintiffs brought their plea of trespass on the case against the said Union Petroleum Company of New York in the court of common pleas for the county of Venango, in the state of Pennsylvania, in which the said Union Petroleum Company duly appeared, and that the said action was thereafter, and on or about the ninth day of September, 1873, on the petition of the said Union Petroleum Company, verified by the affidavit of Abijah Curtis, one of the defendants above named, removed to the United States circuit court for the Western district of Pennsylvania. And that on the thirtieth day of July, 1874, and before the time for filing the annual report hereinafter mentioned, the above-named plaintiffs duly recovered a judgment in the said action against the said Union Petroleum Company of New York in the circuit court of the United States in and for the Western district of Pennsylvania, by the judgment and consideration of said court having jurisdiction therein, and of the said Union Petroleum Company of New York, for forty thousand five hundred dollars*($40,500.00) damages, and three hundred and twenty-eight dollars and ninety-seven cents ($328.97) costs, which judgment was duly given, and still remains in full force and effect, not satisfied or annulled, and no part thereof has been paid.

"Fifth. That the said Union Petroleum Company of New York did not within twenty (20) days from the first day of January, 1875, make and publish a report as required by law in such case made and provided, signed by its president and a majority of its trustees, and verified by the oaths of the president or secretary thereof, and did not file the same in the office of the clerk of the county where the business of the company was carried on, to-wit, the county of New York; nor have they made, published, signed, verified, or filed any such report whatsoever as by law required, but have wholly failed so to do. "Wherefore, the plaintiffs demand judgment against the above-named defendants in the sum of $40,828.97, with interest on $40,500.00 from the thirtieth day of July, 1874, and on $328.97 from the third day of October, 1874, besides the costs and disbursements of this action."

To this complaint the defendants severally demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment rendered in favor of the defendants, dismissing the complaint, to reverse which this writ of error is prosecuted.

The statute on which the action is founded is as follows, (Laws N. Y. 1875, c. 510, passed June 7, 1875:)

"Section 1. The twelfth section of the Act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,' passed February 17, 1848, as said section was amended by chapter 657 of the Laws of 1871, is hereby further amended, so that section 12 shall read as follows:

"Sec. 12. Every such company shall, within twenty days from the first day of January, if a year from the time of the filing of the certificate of incorporation shall then have expired, and if so long a time shall not have expired, then within twenty days from the first day of January in each year after the expiration of a year from the time of filing such certificate, make a report, which shall be published in some newspaper published in the town, city, or village; or, if there be no newspaper published in said town, city, or village, then in some newspaper published nearest the place where the business of the company is carried on,-which shall state the amount of capital, and of the

457

*458

proportion actually paid in, and the amount of its existing debts; which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company, and filed in the office of the clerk of the county where the business of the company shall be carried on; and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made. But whenever, under this section, a judgment shall be recovered against a trustee severally, all the trustees of the company shall contribute a ratable share of the amount paid by such trustee on such judgment, and such trustee shall have a right of action against his co-trustees, jointly or severally, to recover from them their proportion of the amount so paid on such judgment: provided, that nothing in this act contained shall affect any action now pending.

99

H. J. Scudder and G. A. Black, for plaintiff in error. G. P. Lowrey, for defendants in error.

* MATTHEWS, J. It is the well-settled rule of decision, established by the court of appeals of New York in numerous cases, that this section of the statute, to enforce which the present action was brought, is penal in its character, and must be construed with strictness as against those sought to be subjected to its liabilities. Merchants' Bank v. Bliss, 35 N. Y. 412; Wiles v. Suydam, 64 N. Y. 173; Easterly v. Barber, 65 N. Y. 252; Knox v. Baldwin, 80 N. Y. 610; Veeder v. Baker, 83 N. Y. 156; Pier v. George, 86 N. Y. .613; Stokes v. Stickney, 96 N. Y. 323. In the case last cited the action authorized by it was held to be ex delicto, and that it did not survive as against the personal representative of a trustee sought to be charged. In Bruce v. Platt, 80 N. Y. 379, it was said: "It is settled, by repeated decisions applicable to this case, that the statute in question (Laws 1848, c. 40, § 12) is penal, and not to be extended by construction; that in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but that every fact necessary to establish their liability must be affirmatively proved;" citing Garrison v. Howe, 17 N. Y. 458; Miller v. White, 50 N. Y. 137; Whitney Arms Co. v. Barlow, 63 N. Y. 62. The rule of construction in reference to this and similar statutory provisions has been heretofore adopted and applied by this court. Steam-engine Co. v. Hubbard, 101 U. S. 188; Flash v. Conn, 109 U. S. 371; S. C. 3 SUP. CT. REP. 263.

In the case last mentioned this court, following the court of appeals of New York in the case of Wiles v. Suydam, 64 N. Y. 173, showed the distinction between the liability of stockholders for the debts of the corporation, under a section of the same act, making them severally individually liable for the debts and contracts of the company to an amount equal to the amount of stock held by them, respectively, until the whole amount of the capital stock fixed and limited by the company has been paid in, and the liability imposed upon the trustees by the section now under discussion. It was held that the former was a liability ex contractu, enforceable beyond the jurisdiction of the state, and that the statute should be construed liberally in furtherance of the remedy; that the latter was for the enforcement of a penalty, and subject to all the rules applicable to actions upon statutes of that description. The distinction is illustrated and enforced in Hastings v. Drew, 76 N. Y. 9, and Stephens v. Fox, 83 N. Y. 313.

The precise question involved here was decided by the court of appeals of New York in the case of Miller v. White, 50 N. Y. 137. In that case the complaint set forth the recovery of a judgment against the company, but not the original cause of action against it, on which the judgment was founded. The defendant moved for a dismissal on this ground, which was refused, and judgment was rendered in favor of the plaintiff on the production in evidence