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equity to foreclose two mortgages of its whole railroad. The material facts appearing by the record are as follows:
On October 1. 1872, and on November 6, 1874, the corporation made to a trustee, to secure the payment of its bonds, two mortgages of all its railroad, right of way, franchise, road-bed, stations and station-houses, depot grounds, and other property, already or thereafter owned, possessed, or acquired through or by reason of the construction of its railroad. After breach of the conditions of those mortgages, the bondholders filed bills in equity for the appointment of a receiver and for the foreclosure of the mortgages, which were by order of court consolidated as one suit. Pending that suit, and after a receiver had been appointed and had taken possession, the appellant filed an intervening petition, alleging that on February 1, 1872, at the request of the corporation and for its benefit, she sold and conveyed to Thomas S. Dobbins, its president, a tract of land in Chicago, in consideration of a certain sum in money, and of 10 promissory notes made by Dobbins, payable in 10 successive years, and secured by a mortgage from him of the land, which was duly recorded on September 5, 1872; that the corporation entered upon the land and laid tracks upon it, and continued to use and occupy it until the appointment of the receiver, and the receiver since continued to use it for the benefit of the railroad, and neglected to pay the notes and interest, and praying that the amount thereof might be paid out of any funds in the hands of the receiver, or out of the proceeds of sale under any decree to be rendered in the cause. This petition was referred to a master, who reported that the amount due to the appellant was $59,910.10. The court declined to order the payment of the appellant's claim, and dismissed her petition without prejudice; and in the principal suit entered a decree for the foreclosure by sale of the whole railroad, including the road-bed, stations and station-houses, depot grounds, and other property, without prejudice to her mortgage. From that decree the appellant prayed an appeal to this court, and offered a bond in order to make the appeal a supersedeas. The court allowed the appeal and approved the bond, and ordered that the appeal should not operate as a supersedeas or delay of the sale, but only delay the distribution of so much of the proceeds of the sale as was necessary to fully secure the amount due on her mortgage. The master afterwards reported that a sale had been made, in accordance with the decree of foreclosure, for the sum of $916,100, and the court overruled exceptions taken by the appellant to the master's report and confirmed the sale. The corporation afterwards paid into court the amount of the bid, interest, and commissions, as required by the decree and by the statute of Illinois; and the court found that the corporation had done what was needful to effect a redemption, and reserved for further consideration the time and terms on which a delivery of the property to the corporation should be directed.
Assuming, as the appellant contends, that her conveyance to Dobbins, and the mortgage back by him, should be considered in equity as if made to and by the railroad corporation, no ground is shown for reversing the decree below. The appellant's mortgage covered only the tract of land specifically described therein, and did not affect the title of the corporation in other lands and in so much of its road as was not laid over the land mortgaged to her. The case differs in this respect from the cases cited by her counsel, in which a mechanic's lien given by statute for work done on part of a railroad was held to extend to the whole road. Brooks v. Railway Co. 101 U. S. 443; Meyer v. Hornby, 101 U. S. 728. As a general rule, a prior mortgagee is not a necessary party to a bill to foreclose a junior mortgage, where the decree sought is only for a foreclosure of the equity of redemption from the prior mortgage, and not of the entire property or estate. Jerome v. McCarter, 94 U. S. 734. In a suit to foreclose a mortgage of the whole railroad, franchise, and property of a railroad corporation, it would often produce great delay and
embarrassment to undertake to determine the validity and extent of all prior liens and incumbrances on specific parts of the corporate property before entering a final decree. The course pursued by the circuit court in the present case, dismissing the intervening petition of the appellant, without prejudice, and ordering a foreclosure by sale, subject to her mortgage, of the entire railroad and other property included in the railroad mortgages, to foreclose which the principal suit had been brought, judiciously and effectively secured the rights of all parties. The price obtained by the sale of the railroad and other property, subject to her mortgage, must have been less than if they had been sold free of that mortgage; and to order the amount of that mortgage to be paid out of the proceeds of the sale would pro tanto benefit the purchaser if the sale was carried out, or the railroad corporation in case of redemption, to the corresponding detriment of the holders of bonds secured by the railroad mortgages.
The railroad corporation, after having redeemed its property from the railroad mortgages, will hold it subject to any valid lien of the appellant, just as it did before the proceedings for foreclosure were instituted. Decree affirmed.
(112 U. S. 201)
FOSTER, Co. Atty., etc., v. STATE ex rel JOHNSTON, Atty. Gen.
(October 27, 1884.)
PRACTICE-WRIT OF ERROR AS SUPERSEDEAS-REMOVAL OF OFFICER-ContempT.
A writ of error from the judgment of a state court removing a county attorney from office, does not operate as a supersedeas, so as to prevent a legal appointment of another person to the place, until it is properly lodged in the clerk's office of the state court; hence the new appointee is not in contenipt while acting as county attorney.
Rule on Joseph Moore to show cause why he should not be Attached for Contempt in violating the supersedeas herein.
W. Hallett Phillips, for motion. A. L. Williams, against motion. *WAITE, C. J. The showing under this rule presents the following facts: The supreme court of Kansas rendered a judgment on the first of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline county. A statute of the state makes it the duty of the judge of the district court of a county to fill the office of county attorney when a vacancy exists. A writ of error from this court for the reversal of the judgment of the supreme court was duly allowed in Washington on the fifth of April, and a supersedeas bond approved, and a citation signed. Notice of these facts was telegraphed on the same day, by the counsel of Foster in Washington, to his counsel in Kansas. On the 7th, the counsel in Kansas called on the judge of the district court of the county and exhibited to him the telegram, and notified him of what had been done in Washington. After this, and a little before 12 o'clock of the night of the 7th, the judge appointed Joseph Moore to the office in place of Foster. The bond of Moore, which had been executed on the 7th, and then approved by the clerk of the county, was accepted by the county commissioners on the eighth of April, and Moore thereupon assumed to discharge the duties of his office. Before this appointment was made, an authenticated copy of the record of the supreme court removing Foster from the office was presented to the judge. On the same day, the 8th, the writ of error and supersedeas bond arrived from Washington and were duly lodged in the office of the clerk of the supreme court of the state. At the next term of the district court, which began on the twelfth of May, Moore appeared and acted as county attorney, the judge ruling that he, and not Foster, was properly in office. On the twenty-sixth of May a rule was granted by one of the justices of this court requiring Moore to appear here on the second day of the present term, and show cause why he should not be
att iched for contempt in violating the supersedeas. There is no dispute about the facts, and the simple question is whether they make out a case of contempt on the part of Moore. We have no hesitation in saying they do not. It was decided in Board Com'rs v. Gorman, 19 Wall. 661, which was followed in Kitchen v. Randolph, 93 U. S. 86, that a writ of error operates as a supersedeas only from the time of the lodging of the writ in the office of the clerk where the record to be re-examined remains; and in Doyle v. Wisconsin, 94 U. S. 50, that the provision of section 1007 of the Revised Statutes, to the effect that in cases where a writ of error may be a supersedeas executions shall not issue until the expiration of 10 days, does not apply io judgments in the highest court of a state. We see no reason to modify these rulings. It follows that the supersedeas was not in force when Moore was appointed to and accepted the office.
The judgment operated of itself to remove Foster, and leave his office vacant. It needed no execution to carry it into effect. The statute gave the judge of the district court authority to fill the vacancy thus created. The judge was officially notified of the vacancy on the 7th, when the authenticated copy of the record of the supreme court was presented to him. The operation of that judgment was not stayed by the supersedeas until the 8th, that being the date of the lodging of the writ of error in the clerk's office. It follows that the office was, in fact, vacant when Moore accepted his appointment, gave his bond, and took the requisite oath. He was thus in office before the supersedeas became operative. What effect the supersedeas had when it was afterwards obtained, on the previous appointment, we need not now consider. This is not an appropriate form of proceeding to determine whether Foster or Moore is now legally in office.
The rule is discharged.
(112 U. S. 33)
SKIDMORE and others v. PITTSBURGH, C. & ST. L. RY. Co.
(October 27, 1884.)
1. REAL PROPERTY-EJECTMENT-LEASE BY Grantee under TIME CONTRACT--RIGHT OF
Land sold under a time contract. which is completed subsequently to the executing of a 99-year lease of his purchase by the grantee, is not subject to an action in ejectment against the latter, even if the deed to him is executed after the lease is. The lessee is entitled to the possession, whether the title be good or bad.
2. SAME-LEASE BY EQUITABLE GRANTEE BEFORE CONFIRMATION OF TITLE.
The confirming by deed in fee-simple of an equitable into a legal title, after the execution of a lease of the land by the grantee, vests the possession in him to whom the lease is made.
In Error to the Circuit Court of the United States for the Northern District of Illinois.
Geo. Willard and Geo. Duggs, for plaintiffs in error. No brief filed for defendant in error.
WAITE, C. J. This was an action of ejectment, and the material facts found by the court below, on which the case comes here for decision, are as follows: In the spring of 1868 the Columbus, Chicago & Indiana Central Railroad Company purchased the premises in dispute upon time contracts, by which the purchase money was to be fully paid within four years, and a conveyance made when the payments were completed. Immediately on making the purchase the company went into possession of the premises, "and erected thereon its engine-houses and certain shops, structures, and side tracks necessary for the operation of its railroad." On the first of February, 1869, the Pittsburgh, Cincinnati & St. Louis Railway Company "became the lessee of the railway and property of the Columbus, Chicago & Indiana Central Railway Company for the term of ninety-nine years, and immediately
thereafter entered into the possession of said railroad, and all its lands and property, including the property in controversy." The lease was recorded in Cook county, Illinois, where the premises are situated, on the twenty-first of July, 1873. It does not purport to convey after-acquired property, but the premises in question are, and since the lease was made have been, occupied and used by the lessee for railway purposes, "the same as though they were included in the lease." On the second of February, 1872, the purchase money having been paid in full according to the terms of the contract, a deed was executed conveying the premises to the Columbus, Chicago & Indiana Central Company in fee-simple. On the nineteenth of *April, 1873, William B. Skidmore, since deceased, recovered a judgment against the last-named company in the Cook county circuit court. Execution issued on this judgment was levied on the premises on the tenth of June, 1873. Under this execution the property was sold to William B. Skidmore on the tenth of July, and a conveyance made to Harriet Skidmore, Lemuel Skidmore, and William B. Skidmore, his heirs, in due course of proceeding, on the third of May, 1876. The heirs, who are the plaintiffs in error, claiming under this title, brought this suit against the Pittsburgh, Cincinnati & St. Louis Company, which was in possession, to recover the property. Upon these facts the court below gave judgment in favor of the railway company, and to reverse that judgment this writ of error has been brought.
*The judgment below was clearly right. The Columbus, Chicago & Indiana Central Company was, in equity, the owner of the property when the lease was made, and when the Pittsburgh, Cincinnati & St. Louis Company went into possession under it. The deed executed in February, 1872, pursuant to the contract of purchase, converted the equitable title of the Columbus, Chicago & Indiana Central Company into a legal title, which at once, by operation of law, inured to the benefit of the Pittsburgh, Cincinnati & St. Louis Company under its lease. All the rights of William B. Skidmore as against the property accrued long after those of the Pittsburgh, Cincinnati & St. Louis Company, and are subject to the title of that company. Such being the case, it is entirely unnecessary to inquire whether the Skidmores acquired a valid title to the property as against the Columbus, Chicago & Indiana Central Company The Pittsburgh, Cincinnati & St. Louis Company is entitled to the possession, whether that title be good or bad.
The judgment is affirmed.
(112 U. S. 24)
MOFFAT, Jr., and another v. UNITED STATES. (Two Cases.)
(October 27, 1884.)
1. PUBLIC LANDS-PATENT-FRAUDULENT ISSUE-PRESUMPTION AS TO REGULARITY. The presumption as to the regularity of the proceedings which precedes the issue of a patent of the United States for land, is founded upon the theory that every of ficer charged with supervising any part of them, or acting under the obligations of his oath, will do his duty, and is indulged as a protection against collateral acts of third parties.
SUIT BY UNITED STATES AGAINST PATENTEE-BURDEN OF PROOF.
In a suit by the United States directly assailing a patent and seeking its cancellation for fraud in the conduct of their officers, the burden of proof is upon the United States to show a fatal irregularity or corrupt conduct on their part; but when a case is established which, if unexplained, would warrant a conclusion against them, the burden of proof is shifted, and they must show such integrity of conduct and such a compliance with the law as will sustain the patent.
3. SAME-UNITED STATES DOES NOT GUARANTY INTEGRITY OF OFFICERS.
The government does not guaranty the integrity of its officers nor the validity of their acts. Such officers are but servants of the law, and if they depart from its requirements the government is not bound.
4. SAME-PATENT TO FICTITIOUS PARTIES-EFFECT OF SUCH PATENT.
Patents issued to fictitions parties cannot transfer title, and no one can derive any right under a conveyance in the name of the supposed patentees.
5. SAME-PATENT TO FICTITIOUS PARTY-SUBSEQUENT PURCHASERS.
A pacent to a fictitious party being in legal effect only a declaration that the government conveys the patent to no one, there is in such case no room for the doctrine that subsequent purchasers are protected.
6. SAME PATENT TO MYTHICAL PERSON - RETURN OF CONSIDERATION-AGENT of the PRETENDED PATENTEE.
Pretended patentees having no actual existence, the consideration for the patent cannot be returned to them, and for the same reason they can have no agents to act in their behalf.
U. S. v. Throckmorton, 98 U. S. 61, and Vance v. Burbank, 101 U. S. 514, distinguished.
Appeals from the United States Circuit Court for the District of Colorado. These are suits to cancel two patents of the United States for land in Colorado, bearing date on the fourth of October, 1873, and purporting to be issued, one to a person by the name of Philip Quinlan, and the other to a person by* the name of Eli Turner, upon proof of settlement and improvement by them under the pre-emption laws. Their cancellation is sought on the ground that the patentees named were fictitious parties; that no settlement or improvement on the lands was ever made; that the documents alleging settlement and improvement were fabricated by the register and the receiver of the landoffice of the district, embracing the land covered by the patents, to defraud the government of the property.
The two suits present substantially the same facts, differing only as to the parties concerned in the proceedings, and the land patented, and were considered together by the court. The bill in the first case alleges substantially as follows: That the register and the receiver of public moneys of the landoffice at Pueblo, in Colorado, conspiring to defraud the government of a patent for the land upon the pretext that the same was due to some person, who had performed the duties required of him by the acts of congress in that behalf, had written out, in the form prescribed by law, a declaratory statement in the fictitious name of Philip Quinlan, representing that he had declared his intention to claim the land as a pre-emptioner; and also an affidavit, purporting to be signed by him and sworn to before the register, stating that he had made a settlement upon the land, and improved it in good faith, in order to appropriate it to his exclusive use and benefit, and not for the purpose of sale or speculation; that he had not, directly or indirectly, made an agreement with any person, or in any manner, whereby the title he might acquire would inure, in whole or in part, to the benefit of any one except himself; that they had also prepared an affidavit, purporting to be signed and sworn to before. the register by two other fictitious persons, named Michael Quinlan and Orrin R. Peasley, in which it was stated, among other things, that the supposed Philip Quinlan was a single man, over the age of 21 years, a citizen of the United States, and an inhabitant of the land; that no other person resided thereon entitled to the right of pre-emption; that he had made a settlement; thereon on the first of May, 1872, had built a house and made other improvements, and had lived in the house and made it his exclusive home from the fifteenth of May, 1872, to that date, May 8, 1873, and had plowed, fenced, and cultivated 18 acres of the same.
The bill also alleges that at this time the receiver was the owner of a certain amount of agricultural college scrip issued by the state of Florida; and, for the purpose of locating the land with it in the name of the said Quinlan, the register and the receiver had inserted in a blank indorsement his fictitious name and residence, and in that name had located the scrip on the land; and also that they had done divers other acts to cause the plaintiff to believe that the supposed Philip Quinlan was a real person, who had actually appeared before them and made the statements and proof required by law and the regula