Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

that, while Holmes represented that he had acquired the full legal title to the land, the conveyances and proceedings had were not sufficient to transfer the title to Holmes; and he therefore prayed for a rescission of the contract, and for damages to the amount of the purchase money. In their reply the plaintiff's below alleged that at the time of the conveyance Ingraham had full knowledge of all the facts in regard to the title to the property; that a complete abstract, showing the condition of the title, was delivered to Ingraham, who caused the same to be examined by his attorney, who approved the title. It was further alleged that the only defect in the conveyances to Holmes was the failure to obtain the formal approval of the secretary of the interior to a conveyance of 40 acres, and that, when it was learned that an objection was made to the deed for the want of such approval, the plaintiffs below applied to Ingraham, to whom the deed had been delivered, for the same, in order that they might obtain the formal approval of the secretary, and in that way cure the defect, but that Ingraham refused to deliver the deed to the plaintiff's below for that purpose, and that, solely by reason of such refusal, the plaintiffs were prevented from procuring the approval and curing the defect. A trial of the issues resulted in favor of the plaintiffs below, and a judgment was rendered against Ingraham for the amount of the debt and for a foreclosure of the mortgage.

It appears that the land in question is a part of that allotted to Capt. Parks, a Shawnee Indian, under the treaty with the Shawnees of May 10, 1854. Article 9 of the treaty provided for "issuing to such of the Shawnees as may make separate selections patents for the same, with such guards and restrictions as may seem advisable for their protection therein." 10 Stat. 1057. In an act approved March 3, 1859, congress enacted a provision authorizing the issuance of patents to Indians entitled to separate selections of land, and to their heirs, upon such conditions and limitations, and under such guards and restrictions, as may be prescribed by the secretary of the interior. 11 Stat. 431. In the patents issued there was a stipulation that the land conveyed "shall never be sold or conveyed by the grantee or his heirs without the consent of the secretary of the interior for the time being." Although Capt. Parks was a member of the Shawnee tribe of Indians, he was not a full blood, and is spoken of by the witnesses as being "more of a white man than an Indian." He had two children, Sally and Mary. Mary married a white man named Donaldson, and she died leaving two children, Catharine and Rebecca. In 1859 Capt. Parks died, leaving as his heirs his daughter Sally, who had intermarried with one Rogers, and his two granddaughters, Catharine Donaldson and Rebecca Donaldson. Catharine mar

ried John Swartzell, a white man, and Rebecca married a white man named Vogel, and upon his death she afterwards married one Joseph Fitzpatrick. After the death of Capt. Parks, and in 1865, a partition suit was instituted in the district court of Wyandotte county, and one-half of the Parks land was set apart to Sally, and the other half to Catharine and Rebecca. The judgment determining their rights and partitioning the property was affirmed in this court. Swartzell v. Rogers, 3 Kan. 375. After the partition was made, Sally Rogers sold and conveyed the portion set apart to her to Catharine and Rebecca, who paid her full value for the same, and the deed of conveyance was approved by the secretary of the interior. In 1868, by mutual agreement between Catharine and Rebecca, a partition of the land which they held in common was made; and after Rebecca had died a partition proceeding was had between Catharine Swartzell and the heirs of Rebecca, in the district court of Wyandotte county, in which the division theretofore made by mutual agreement was confirmed. Subsequently, and in 1879, a division was made by the Shawnee council, and a deed was made conveying the share set apart to Catharine; and the deed, which recited the partition and was based thereon, was approved by the secretary of the interior. In January, 1879, Catharine Swartzell conveyed about 60 of the 100 acres in question to William Holmes, and this deed was presented to and approved by the secretary of the interior. On November 29, 1881, Catharine Swartzell executed a conveyance to William Holmes, conveying to him 40 of the 100 acres in question, but this deed was not presented to nor approved by the secretary of the interior.

Ingraham claims that the lack of such approval is a fatal defect in the title, and he also insists that the partition proceedings, and other steps taken to transfer the title to the land in question to Catharine Swartzell, were insufficient. Ingraham, as we have seen, acquired the land in 1887; but he made no objection to the kind of title which he received until 1890, when there was a great shrinkage in the value of the land, nor until steps had been taken to enforce the collection from him of the balance of the purchase money. He has had undisputed possession of the land since the purchase, and there has been no assertion of a hostile title to it. No claim has been made by any of the heirs of Capt. Parks, nor by any of their grantees, and the only one to question the sufficiency of the title is Ingraham himself. When he purchased the land an abstract of the title was furnished to him, and the purchase was not completed until his attorneys had examined the abstract and title papers, and reported that Holmes had a good title. The facts bearing upon the condition of the title were as well known to him as to Holmes, and, if the failure to obtain the ap

proval of the secretary of the interior to one of the Holmes deeds is a defect, he had full knowledge of the same. Holmes appears to have acted openly and in good faith in the transaction; and that the complete title was in his grantor, Catharine Swartzell, is well established. The attack made upon the partition proceedings cannot be sustained. The state courts were open to the Indians for the division of their property, and their right to resort to these tribunals for adjustment of their rights has been frequently recognized. Blue-Jacket v. Johnson Co., 3 Kan. 294; Swartzell v. Rogers, 3 Kan. 375; Wiley v. Keokuk, 6 Kan. 94; Felix v. Patrick, 36 Fed. 457; Id., 145 U. S. 332, 12 Sup. Ct. 862. The partition proceedings were also recognized by the federal authorities, and deeds based upon the division of property so made were approved by the secretary of the interior. Catharine Swartzell in this way received, by approved deeds, the share of Sally Rogers, which was one-half of the Parks land, and also the share of her sister, Rebecca, which was one-fourth of the land. The remaining one-fourth interest she inherited from her grandfather. The deeds to Catharine Swartzell contained no restrictions, and, being absolute in form, the approved deed conveyed to her an absolute title. As to the interest purchased from her coheirs, she is to be regarded the same as any other purchaser; and the approved conveyance divested the title of the United States, and placed the interest named outside of the restrictions upon the sale of Indian lands.

He

Some of the steps preliminary to the transfers do not conform strictly with the rules which had been promulgated by the secretary of the interior, but, as that officer has actually approved the conveyances, the departure from the prescribed rules becomes unimportant. The treaty leaves the matter of restrictions upon alienation of these lands with congress, and congress, in turn, has left it wholly with the secretary of the interior. Neither the treaty nor the act of congress expressly provides any conditions or limitations, restrictions or guards, and hence the matter of consent and approval rested in the discretion and power of the secretary. could modify his own rules, or dispense with them entirely, as the circumstances of the case seemed to warrant; and when he acts and approves the transfer is complete, and the conveyance valid. It follows, therefore. that the three-fourths interest of Capt. Parks and his heirs had been completely transferred to Catharine Swartzell, and as to the 60acre tract, the deed of which to Holmes was approved by the secretary, there can be no objection to the title. The Holmes deed to the 40-acre tract was not approved, and as to the three-fourths interest in the same which she had purchased from her coheirs, and which had been approved by the secretary, no approval was necessary. The In

dian title, to the extent of the three-fourths interest, had been extinguished by the approved conveyance.

It is earnestly insisted on the part of the defendants in error that no approval was necessary as to the one-fourth interest in the 40 acres conveyed by the unapproved deed. It is contended that the treaty provisions with reference to restrictions only extend to the particular Shawnee who makes selection, and can have no application to the heirs of the allottee, and that any extension of the protection beyond the allottee, or the placing of any limitations upon a transfer by heirs of the allottee, are inconsistent with the treaty, and therefore invalid. It is further contended that it can have no application in the present case, because Catharine Swartzell, from whom Holmes purchased. was not a member of the Shawnee tribe of Indians, and that long before the transfer of the land she had abandoned all tribal relations with them. She was not the allottee, nor the child or direct heir of the allottee. Her grandfather was only a half-breed Indian. Her father was a white man, and she married a white man, and lived apart from the Indians, and never afterwards rejoined them. It appears that the greater part of the tribe moved from Kansas and located in the Indian Territory about 1872. In pursuance of the treaty of July 19, 1866, an agreement was entered into between the Shawnees and the Cherokee Nation by which the Shawnees, upon certain terms and conditions, were incorporated into the Cherokee Tribe, and forever after are to remain a part of the Cherokee Nation, on equal terms, in every respect, and with all the privileges and immunities of native citizens of the Cherokee Nation. By that agreement it was provided that the Shawnees were to abandon their tribal organization, and the agent of the Cherokees was to act for the Shawnees. It is claimed, however, that for some purposes the United States authorities recognize the existence of a tribal organization, and. therefore, that it cannot be said that the tribal organization has been completely dissolved. Brown v. Steele, 22 Kan. 672; U. S. v. Black-Feather, 15 Sup. Ct. 63. These questions do not require a determination at this time, because, even if an approval of the last deed is necessary, Ingraham is not entitled to the equitable relief which he seeks. He did not bring an action on the covenants of his deed when he discovered the absence of an approval, but remained silent until the action to recover the purchase money was brought. The sale was executed, and he has accepted and enjoyed possession under the conveyance which was made to him. There was no misrepresentation or fraud on the part of his grantor, and, if there is any defect in the title, his possession has never been disturbed, and no one has laid claim to any interest in the land. If there is any want of title, it is a mere breach

of the covenants of seisin, and, as he has never been disturbed in his occupancy or seisin, the breach is but technical, and only nominal damages could be recovered. In Hacker v. Blake, 17 Ind. 97, it was said that "the entire want of title was a breach of the covenants of seisin, but for such breach, while the purchaser retains possession, he can only recover nominal damages, and for such damages a judgment will not be reversed." See, also, Black v. Thompson (Ind. Sup.) 36 N. E. 644, and cases cited. An action has not been brought on the covenants, but Ingraham is resisting payment of the purchase money, and asking for a rescission of the contract. When the plaintiffs below learned of Ingraham's objection to the title, they dismissed the action first brought, and applied to him for the unapproved deed, for the purpose of presenting it to the secretary of the interior for his approval. He had possession of that deed, and understood the purpose for which the application was made, but he refused to give them an opportunity to obtain the approval and cure the defect. Failing to obtain the original, the plaintiffs below sought to obtain the approval of a copy of the deed, but the officers of the interior department declined to act upon a copy while the original was in existence. The plaintiffs below had a right to perfect the title to the land at any time before the question of rescission was determined. Ingraham was asking equitable relief, and yet, instead of doing equity, he sought, by his refusal, to prevent the cure of the defect and the completion of the title. If he had allowed the deed to have been approved, it would have related back to the execution of the deed, and validated it from that time. Pickering v. Lomax, 145 U. S. 310, 12 Sup. Ct. 860. The judgment of the district court will be affirmed. All the justices concurring.

(56 Kan. 577)

HOVEY V. BOARD OF COM'RS OF WY ANDOTTE COUNTY.

(Supreme Court of Kansas. March 7, 1896.) CONSTITUTIONAL LAW PUBLIC IMPROVEMENTS COUNTY COMMISSIONERS.

1. The decision in the case of Commissioners v. Abbott, 34 Pac. 416, 52 Kan. 148, holding chapter 214 of the Laws of 1887, entitled "An act providing for the improvement of county roads." unconstitutional and inoperative, followed.

2. The board of county commissioners, and road commissioners appointed by them under chapter 214 of the Laws of 1887, which is a void statute, are without power to bind the county by express contract to pay for paving a countv road; nor can they, by any attempted acceptance of work performed under such void contract, impose any liability on the county to pay, as upon a quantum meruit, the value of the work done or improvement made on the road, (Syllabus by the Court.)

Error from district court, Wyandotte county; Henry L. Alden, Judge, V.44P.no.1-2

This action was brought in the district court of Wyandotte county by A. B. Hovey, receiver of the Northrup Banking Company, against the board of county commissioners of Wyandotte county, to recover $31,480 and interest, claimed to be due the banking company or certain written instruments purporting to be obligations of the county, issued by certain road commissioners, in payment for paving Quindaro Boulevard. The petition al| leges in minute detail that all of the various steps contemplated by chapter 214 of the Laws of 1887 (entitled "An act providing for the improvement of county roads") were taken; that a contract for such improvement was let to R. E. Ela and Michael Cahill, who paved the road in accordance with their contract; that the Northrup Banking Company furnished the contractors with all the money expended by them in making such improvement; that it was agreed between the contractors, the bank, and the road commissioners that the certificates to be issued in payment for such improvement should be issued directly to the banking company; and that this was accordingly done, after the completion and acceptance of the work. It is alleged that the improvement of the road is of permanent value to the county, exceeding the contract price, and that the county now enjoys the full use and benefit thereof. The entire cost is stated to have been $53,147; and it is alleged that a portion of the cost has been collected from the owners of the adjacent property, and that all of the payments that have been made heretofore were from the moneys so collected. The petition shows that the road commissioners met and assessed two-thirds of the cost of the improvements against the adjacent property in accordance with the statute, and that all of such special assessments were collected, unless by reason of the neglect of the board of commissioners; that there is now in the treasury of the county a large sum of money, the exact amount of which is unknown to the plaintiff, collected on such special assessments for the payment of said certificates; and that the county treasurer refuses to pay the same to the plaintiff. A general demurrer to the petition was interposed in behalf of the county, and sustained by the court, and this is the ruling now to be reviewed by this court. Affirmed.

Buchan, Freeman & Porter, for plaintiff in error. S. C. Miller and Hutchings & Keplinger, for defendant in error.

ALLEN, J. (after stating the facts as above). This case was advanced on motion of the defendant, because it was asserted that the county officers desired a speedy determination of the questions involved in the case, and especially because it was said that there was a large amount of money collected from special assessments held in the county treasury, and that the county officers were in doubt as to their duty in disposing of the same, and as

to the rights of the various parties who might claim an interest therein. The only parties to this action are the receiver, as plaintiff, and the board of county commissioners, as defendant. Although very long and exhaustive briefs discussing the other questions in the case have been filed, no argument is found in them with reference to any fund claimed to be held by the county treasurer. We shall consider the case, so far as we deem it necessary, as it has been discussed by counsel in their briefs. They having ignored this fund, concerning the existence of which the averments of the petition are exceedingly vague and indefinite at best, we shall also disregard it.

The main contention of counsel for the plaintiff in error is that the decision in the case of Commissioners v. Abbott, 52 Kan. 148, 34 Pac. 416, in which chapter 214 of the Laws of 1887 was held unconstitutional and invalid, is wrong. It is very earnestly insisted that the plaintiff in this case has never had a hearing in this court on the question of the validity of the law; that very large interests are involved; and that the court should again carefully reconsider this question. Every decision of an important question of law must necessarily affect the interests of all persons whose rights must be determined by the same rule, and this without their having had a hearing in the first instance. For this as well as other reasons, it is of the utmost importance that every rule announced should be sound. It cannot be urged with any truthfulness that the question as to the validity of this road improvement law was hastily disposed of, without due consideration. It was repeatedly argued before the court in numerous cases, and the decision in the case cited was reached with an understanding of the disastrous consequences that must necessarily follow to individuals not parties to that litigation. After the case was decided in this court, the circuit court of the United States for the district of Kansas, in the case of First Nat. Bank of Lansdale v. Board of Com'rs of Wyandotte Co., 61 Fed. 436, arrived at the same conclusion, and also declared the law unconstitutional. On error to the circuit court of appeals, the judgment was affirmed, though on other grounds. 16 C. C. A. 56, 68 Fed. 878. The writer is entirely satisfied with the result reached in the Abbott Case, and the court is disinclined to overrule it after it has been followed by the federal court.

2. It is contended that, even though the act of 1887 be held unconstitutional, the plaintiff is entitled to recover the reasonable value of the improvement made not under the contract, but as upon quantum meruit for the benefit derived by the county from the expenditure of the bank. Many cases are cited in which a recovery has been allowed for the reasonable value of services rendered, or of property delivered where the contract was invalid for one reason or another. The general principle running through

the cases in which corporations, municipalities, and political subdivisions of the state have been held liable, even though the particular contract sought to be enforced was invalid, is that it has received a benefit for which it justly ought to pay; but in these cases the invalidity of the contract was because of a failure to observe some prescribed mode of procedure, or a want of authority in a particular officer, agent, or person to bind the corporation or municipality in the manner in which it was attempted to be done. In all these cases there was a capacity in the corporation or municipality to incur an obligation of the kind with which it was sought to be charged. But where there is an utter incapacity in the municipality to enter into any such contract or agreement as is set up, or to undertake any work of the character of that for which payment is asked, no recovery can ever be had, because it is entirely without the scope and functions of the municipality. The distinction between these two classes of cases is illustrated by those cited in the briefs, and heretofore decided by this court. School districts have been held liable for schoolhouses built, and for furniture for the same, where the action of the district officers was so irregular that the contracts entered into were insufficient to bind the district; but the district, having the power under the law to build schoolhouses and to furnish them, and having actually received and enjoyed the benefits of the property and labor of others, were held liable to pay the reasonable value of the benefits actually enjoyed. Sullivan v. School Dist., 39 Kan. 347, 18 Pac. 287; School Dist. v. Sullivan, 48 Kan. 624, 29 Pac. 1141; Furniture Co. v. School Dist. No. 60, 50 Kan. 727, 32 Pac. 368. A similar principle has been applied with reference to payment for street improvements by cities. Sleeper v. Bullen, 6 Kan. 300; Ryan v. City of Coldwater, 46 Kan. 242, 26 Pac. 675. But, where there is an utter want of power in the corporation to enter into any contract whatever for the work done, there can be no ratification of the void contract, and no liability can flow from it, or from any attempted ratification of it. This is well illustrated by the case of Salt Creek Tp. v. King Iron Bridge & Manufacturing Co., 51 Kan. 520, 33 Pac. 303, where it was sought to charge the township for the construction of a bridge over Salt creek. The contract was invalid, because of a want of power in the officers to make it; but it was sought to charge the township on an implied contract, because the bridge had actually been constructed in the township on a public road, where the township had the full benefit of it, and it was very earnestly insisted that the township was estopped from denying its liability for the reasonable value of the bridge; but this court held that the township officers were wholly without power to create a liability on the township of that kind, and that they could not do in

directly what they were without power to do directly. The principle of that case is identical with the one now under consideration. That was a road improvement made in the township, under a contract with the Township officers claiming authority to bind the township by such contract, but the proposition, having been submitted to a vote of the people, failed to carry by the requisite majority, and there was no law authorizing the construction of a bridge costing so much money, at the expense of the township, without it. The bridge company were therefore held wholly without remedy against the township. To the same effect is Pleasant View Tp. v. Shawgo, 54 Kan. 742, 39 Pac. 704. In this case it is sought to charge the county with the cost of paving a county road. This is an improvement that neither the county nor its officers, assuming to act in its behalf, have any power under the law to make. The county commissioners cannot bind it by any contract for paving a road, nor can contractors, even though acting in accordance with a supposed contract executed on behalf of the county by county commissioners, road commissioners, or any other persons, impose a liability on the county which the law does not authorize the imposition of by any means or through any instrumentality. Until there is a valid law providing for the paving of county roads at the expense of the county, a liability against it for such an improvement cannot be created in any manner. The distinction between these cases and that of a city improving its streets is broad and well defined. The city is charged with the duty of keeping its streets in order, and has general authority to improve them, but no such duty nor authority is imposed on the county or the commissioners or its representatives. "Where a contract is void at law for want of power to make it, a court or equity has no jurisdiction to enforce such a contract, or, in the absence of fraud, accident, or mistake, to so modify it as to make it legal, and then enforce it." Hedges v. Dixon Co., 150 U. S. 182, 14 Sup. Ct. 71. To hold the county liable to pay the reasonable value of the work done in improving the road would be, in effect, holding that the board of county commissioners has power, under the law, to cause county roads to be paved at the expense of the county. For, surely, if the commissioners can bind the county, by an invalid and unauthorized contract and an acceptance of the work done under it, to the payment of the reasonable value of the improvement, it can bind the county by contract to pay as much. Before any obligation to pay can be imposed on the county, there must be lawful authority to create the indebtedness. It is not claimed that any such authority is expressly conferred by any other act of the legislature than chapter 214 of the Laws of 1887: This act, being invalid, leaves the commissioners wholly without power to

bind the county. The judgment of the district court is affirmed.

MARTIN, C. J., concurring. JOHNSTON, J., dissenting.

(56 Kan. 591)

STATE v. RADFORD. (Supreme Court of Kansas. March 7, 1896.) MANSLAUGHTER-INFORMATION-CRIMINAL NEGLI

GENCE.

The averments of an information charging the defendant with culpable negligence in willfully and forcibly seizing a boy against his will and protest, and carrying him out into a river, where the water was deep, and dangerous to human life, whereby he was drowned, examined, and held to be sufficient to sustain a conviction of manslaughter in the fourth degree.

(Syllabus by the Court.)

Appeal from district court, Saline county; R. F. Thompson, Judge.

John Radford was convicted of manslaughter in the fourth degree, and appeals. Affirmed.

John Radford was prosecuted upon a charge of manslaughter in the fourth degree. In the information it was alleged that on July 20, 1895, in the county of Saline, and state of Kansas, "John Radford did then and there unlawfully, feloniously, willfully, and with culpable negligence and culpable carelessness, and without excuse and justification, forcibly seize and carry one Harvey Hudson, a boy about the age of eleven years, into the water of the Smoky Hill river, where the water was of great depth, and dangerous to human life, against the will and protests of said Harvey Hudson; and said Harvey Hudson, being so as aforesaid in said waters, then and there was drowned and died, whereby he, the said John Radford, did unlawfully, feloniously, willfully, and with culpable negligence and culpable carelessness, and without excuse and justification, then and there him, the said Harvey Hudson, drown and kill,-contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas." The sufficiency of the information was challenged by a motion to quash, which was overruled. A trial resulted in a conviction of the offense charged, after which motions for a new trial and in arrest of judgment were made and overruled. The punishment adjudged was confinement at hard labor in the penitentiary for a term of one year. The defendant appeals.

Mohler & Hiller, for appellant. F. B. Drawes, Atty. Gen., and C. W. Banks, for the State.

JOHNSTON, J. (after stating the facts). The sufficiency of the information is attacked upon the ground that it does not set forth the means by which the death of Harvey Hudson was caused, nor directly connect the defendant with his death. The charge

« ΠροηγούμενηΣυνέχεια »