Brisbois v. Sibley & Roberts

By the Oowrt Sherburne, J. Upon reading the pleadings and proof in this matter, I discovered no ground upon which, in my opinion, the prayer of the bill could be granted, and should have disposed of it without further attention, but for the great confidence which I have in the learning and ability of the Counsel who instituted and have prosecuted the proceedings, mistrusting therefore my own first impressions. I have given the case all the attention which the pressure of business has allowed me, but it has. only served to confirm my original opinion. The deed from McLeod to Brisbois was a mere nullity. If McLeod had the right to convey his pre-emption right to the acre in controversy, Brisbois could not hold it. ITe never resided upon the land, nor in the Territory even. If the consideration of the deed were a proper subject of inquiiy, it would'further appear that he never paid one farthing for it. The claim is made on account of a pre-emption title, and yet the case shows that the person under whom the claim is made never resided upon the land, nor improved, saw it, or paid for it. [236] It is doubtful whether the award of the Committee of the claim-meeting, if it had been made to Brisbois, would have aided him. The meeting was opposed to the policy and Laws of the Government, and its acts were void. The fact that such meetings are common, and their doings “ winked at ” by the Government and the public, does not aid these complainants in a Court of Law. If Brisbois was one of the parties assenting to and aiding the claim-meeting, he was aiding a combination for an illegal purpose, and a Court will not adjust their differences. The maxim uIn pwri delicto,” &c. well applies. If he did not assent to the meeting, and was not a party to their proceedings, their acts are certainly not binding upon him, nor could he take advantage of those in his favor. They should be assented to and mutual to be of force, if proper in other respects. If Brisbois had had a right to the land, or to the purchase of it from Government, the action of the Committee and of Sibley’s Attorney might be inquired into: but having no right at the time, those claiming under him are without any legal or equitable right to question the correctness of either. But I am clearly of opinion that the weight of evidence is in favor of the position taken by the Defendant, Boberts, that the award of the arbitrators was that the land be conveyed to him subject to the conditions of the bond mentioned in the answer. The case showing therefore that the Committee awarded the land to Boberts, there seems to me nothing upon which a decision in favor of the Plaintiffs can be founded. The Complainants do not rely upon the bond to Sibley: but had they done so, it is a sufficient answer that its conditions were in no respect complied with. There is another view of this question, which renders the Complainants’ claim at least very doubtful. Contracts, to be binding between the parties, must be mutual. This, as a general principle, is well understood. Suppose these lands had fallen in value to one-fourth of the Government price, — there would have been no claim upon Brisbois or his heirs for the loss. It does not even appear in this case that the Government price has been offered or tendered. [237] I have no hesitation, in determining that the bill cannot be sustained, and it must therefore be dismissed with costs. The Complainants afterwards appealed to this Court from the order dismissing the Bill of Complaint. Points and authorities submitted by Appellants: Fwst. Henry H. Sibley held the land in trust for the different claimants, which trust was sufficiently evinced by his written power of attorney to I). Lambert: and such trust was not in contravention to the Laws of the United States, nor in violation of public policy. Second. Joseph Brisbois held the beneficial interest in the acre of land in question, and was entitled to a conveyance thereof from Henry H. Sibley, who was merely his agent or trustee, mating the purchase. Thwd. Louis Roberts has not shown any title whatever to the land. Fourth. That as between Mr. Sibley and the Complainants, the said Complainants are entitled to a decree. Fifth. That the Complainants are entitled to a decree against Roberts, who has not established a defence. Sixth. That the Court below -erred in excluding in the decision of the case the acts and proceedings of the meeting of the claimants and the award of the Committee, set forth in the bill, as being opposed to the policy and Laws of the Government and void. Seventh. The Court erred in dismissing the bill. Authorities: Revised Statutes, See. 6. p. 267; ibid, Sec. 11, p. 203 ; ibid, See. 21, p. 204; ibid, See. 23, p. 204; Story’s Equity Jurisprudence, 2d vol. p. 439, Sec. 1065; ibid, Sec. 1195—1201; 2d Fonblangue’s Equity, p. 116. Points and authorities relied upon by Respondents : First. The bill does not contain an equitable case: and if the' Complainant omits to state an equitable case in his bill the Court cannot notice it, although established by proof. Dilly vs. Heckwith, 8 Gill & Johnson, 171. Second. The Complainants fail to show performance on their part, and cannot exact it. 1 Desau, 160; 2 ib. 582, et passim. ILollinshead & Becker, Counsel for Appellants. Murray & Williams, and Brisbin & Bi&elow, Counsel for Respondents. The opinion of the District Court is reported at length, for the reason that upon argument in the Supreme Court the order appealed from was affirmed with costs, and no further opinion filed. Third. The answer being sworn to, and taking issue upon all of the material allegations of the bill, must be taken as true, unless disproved by two witnesses, or one with pregnant circumstances. 2 Wheaton, 380; 1 Paige, 239; 2 John’s Ch. R. 92; 9 Cranch, 153. Fourth. The Complainants having filed a replication to the answer, have admitted its sufficiency as a bar. Daniels vs. Taggant, 1 Gill & Johns. 312; Hughes vs. Blake, 6 Wheaton, 472. Fifth. The proof establishes no equities in the Complanants. The deed of McLeod was made before the patent emanated, passed no interest, was voluntary, without consideration, and against public policy: as was the whole train of circumstances upon which the Complainants rely. Shakleford vs. Hambley’s Ex’rs. A. K. Marsh’s R. 501; 3 Story’s Rep. 365; Caldwell vs. Williams, Bailley’s Eq. Rep. 175; Acker & Chapman vs. Phenix, 4 Paige, 205; 2 Paige, 84; Carrington vs. Callen, 2 Stewart’s Rep. 175. Sixth. The bond of Roberts was voluntary, immutual, not duty prosecuted, nor its conditions performed, -and cannot be enforced. 4 Paige, 305; 2 Har. & Gill, 100; 1 Story’s Rep. 204; 3 ib. 612. Seventh. The preponderance of proof is with the Respondents.