Commissioners Douglas County v. Union Pacific Railway Co.

— 621 — By the Court, Valentine, J. The only question in this case which counsel desire to raise, or to have decided, is whether the northwest quarter of section number twenty-nine, township number twelve, range number twenty, in Douglas county, was subject to taxation for the years 1866 and 1867. This depends upon the question whether, at the time the land was assessed, the title to the .same had passed from the Indians and the Government of the United States to the Union Pacific Eailway Company. If the title had passed, so that the land belonged to the railway company, it was taxable; but if the title had not so passed — if the land still belonged to the Indians or to the United States, or to both — it was not taxable. As the patent from the United States to the railway company had not been issued until the year 1868, it will hardly be contended that the legal title had passed. It is contended, however, that the equitable title had passed; that in equity the railway company were the real owners of the land, and therefore, that the land was taxable. "We suppose it will be conceded, even by the defendants in error, that if the equitable title had passed to the railway company, if their title was perfect except that the company had received no patent, which is only the legal evidence of title, the land was taxable. ~We are of the opinion that no title, legal or equitable, had passed. It is true that the railway company had some equities in the land, but they were mere contingent, conditional and inchoate equities that did not amount to a title. ' It is true that the company had made a conditional purchase of this land, but they were not to receive the'patent therefor until all the conditions of the purchase were fulfilled; and if any one of the conditions — 622 — were violated; if the company-failed to complete and equip twenty-five miles of their railroad from Leavenworth westwardly within five years; if they failed to complete and equip the whole of their railroad through the Delaware reserve within eight years; if they failed to pay the interest annually on the purchase money, secured by bonds, within thirty days after the same became due, or if they failed to pay the principal of said bonds at the time it should become due, they were to forfeit all their right, title and interest in and to said land, and it was then to be sold to other parties." It will be perceived from the very nature of this contract, and from the character of the parties to the same, that time was an essential ingredient of the contract. I The contract was purely executory, and it was not intended that the government should be bound to execute its part of the contract, by parting with any portion of its land, unless the railroad company should fulfill every portion of its part of the contract first — and strictly within the time stipulated. It was not intended to have any law suits over the matter. The railroad company could not sue the government or the Indians, and it was not intended that the government or the Indians should, under any circumstances, be under the necessity of suing the railroad company. The government and the Indians chose rather to retain every portion of their title to said lands and thereby keep their remedy within their own hands. In equity there is a maxim that equity will consider as done that which ought to be done, and that it will look upon things agreed to be done as actually performed. As an application of this maxim, equity generally considers that when land is sold on credit, and the deed is to be made when the purchase money is paid, that the land at the time the sale is made becomes the vendee’s and — 623 — the purchase money the vendor’s; that the vendor becomes at once the trustee of the vendee with respect to the land, and the vendee the trustee of the vendor with respect to the purchase money. x But this maxim never applies where time is of the essence of the contract, and where the land is subject to absolute forfeiture on failure of some condition of the sale being performed; for there is no necessity in such a case for courts of equity to resort to any such fiction, and equity never looks upon a thing as done which ought not to be done, nor in favor of any party except one that has a right to pray that it may be done. In such a case no title, legal or equitable, passes until every condition of the sale' is performed; and if such condition is not performed at the exact time that it should be performed, no title ever passes. [Benedict v. Lynch, 1 Johns. Ch. R., 370; Wells v. Smith, 7 Paige Ch. R., 22.] The legal title to land never passes until the legal evidence of such title is executed, and the equitable title probably never passes until everything has been done so that the land cannot be forfeited; so that the person claiming to hold the equitable title could, even after failure on his part, still tender performance, within a reasonable time, if he- should so choose, and compel the conveyance of the legal title by a suit in equity, if the adverse party be an individual, or by a writ of mandamus against the officers of the government, if the government be the adverse party. In this case the conditions upon which the land was sold' had not all been performed when the land was assessed. In 1866 and 1867 the purchase money had not been paid, and, therefore, the patent had not been issued. Hence, in 1866 and 1867 we think the railroad company had no title to the land, legal or equitable. It is undoubtedly true, when the parties so agree, that — 624 — title, both legal and equitable, may pass before the purchase money or any part of it is paid; but it can hardly be supposed that such title will pass against the consent of the parties in violation of their contract, and in violation of equity and good conscience. On the 2d day of July,-1861, Thomas Ewing, jr., agent for the Leavenworth, Pawnee & Western Railroad Company (since changed to Union Pacific — now Kansas Pacific Railway Company) executed an instrument in writing, called a mortgage. Now, whatever this instrument may be called, it is absolutely ridiculous to suppose it has the attributes of a Kansas statutory mortgage. If it is such a mortgage, the railroad company, as mortgagor, possessed the entire title to the land, and the United States, as mortgagee, had nothing but a lien on the same — a mere security for the debt. After condition broken, the United States could not repossess themselves' of the land, as provided in the treaty, and sell it as though no contract had ever been made with the railroad company, but they must commence an action in the district court of the. state as provided in our statutes, obtain a judgment against the railway company, and have the land appraised and sold at sheriff’s sale to satisfy said debt; and if the United States should not commence such action within three years after the cause of action accrued, they would be forever barred by our statute of limitations from commencing any action, or from ever setting up any claim or title to the land by virtue of the mortgage or otherwise. This doctrine seems to be too preposterous to be seriously considered. Under it the state law becomes the paramount law — the supreme law of the land, and the laws and treaties of the United States must yield thereto; [but see Sub. 2, § 1, Art. 6, U. S. Const.,] the State of Kansas has the paramount right — 625 — to control the authority of the United States with regard to making “regulations respecting the Indians, their lands, property, or other rights, by treaty, law or otherwise,” [but see Act of Admission, latter part of section. 1,] and the state also has the light to “interfere with the primary disposal of the soil by the United States,” and to give the land of the United States to a railroad company against the will of the United States, against their laws and against the treaty made with the Indians. \_But see Act of Admission, Sub. 5, § 3, and joint resolution of the legislature of Kansas, Comp. Laws, 84;] this case, in some respects, is similar to the case of the State, ex rel., Parker v. Winsor, \_Arde, 362,] decided at this term, and for additional arguments and additional authorities we would refer to that ease. The judgment of the court below is affirmed. Saeeord, J., concurring.