Central Branch Union Pacific Rld. v. Wilcox

The opinion of the court was delivered by Valentine, J.: Suit was brought in the court below by defendant in error to compel a conveyance to her from plaintiff in error of two certain specified tracts of land, being part and parcel of the Kickapoo Reservation in Atchison county. The plaintiff below bases her case upon two certificates of purchase issued by the United' States government to the defendant below, of date January 2d 1866, which had passed into plaintiff’s possession, and upon two written instruments written upon the same pieces of paper with said certificates, executed by S. C. Pomeroy, president of and attorney-in-fact for the defendant railroad company, and purporting to have been so executed to plaintiff at the date thereof, August 10th — 267 — 1866. The plaintiff further averred in her petition, that the defendant obtained a patent from the United States for these tracts of land September 5th 1871; that it obtained the same fraudulently, as against the plaintiff, and with intent to convert said lands to its own use; that she, the plaintiff, had entered into possession of said lands, and made improvements thereon, and praying for a decree for conveyance from defendant. The defendant answered, first, a general denial; second, a specific denial that said certificates and written instruments conferred on plaintiff any right or interest in said tracts of land, and averred that it, the defendant, was the sole owner of the same. This answer was not verified by affidavit. The plaintiff replied by filing a general denial. Trial was had by the court, without a jury. Defendant objected to the introduction of any evidence under the petition, as not stating a cause of action. Objection overruled and exception taken. After plaintiff’s evidence was in, defendant filed a demurrer to the evidence, which was also overruled, and exceptions taken. After the evidence closed, all of which appears in and is made a part of the record here, the court found its conclusions of fact upon the evidence, and its conclusions of law, and rendered judgment that defendant make and execute to plaintiff a deed of the tracts of land named. On behalf of the plaintiff in error counsel submit in this' court, that the court below erred in overruling defendant’s objection to the introduction of evidence under plaintiff’s petition. This is the principal, and about the only substantial- question in the case. The question really is, whether the petition below states facts sufficient to constitute a cause of action. We think it does. It is not necessary to plead the public laws or treaties of the United States. They will be taken notice of judicially, without pleading or proving them. Hence all the provisions of the Kickapoo treaty of 1862 (13 U. S. Stat. at Large, 623,) will be taken notice of judicially, although some of the provisions thereof may not have been specifically mentioned in the petition. This proposition does not seem to be controverted by counsel on either side. Now — 268 — it is claimed by counsel for plaintiff in error, that under the provisions of that treaty the railroad company had no title, legal or equitable, to the land in controversy, when the said assignment was made by said Pomeroy as attorney-in-fact for said railway company to the plaintiff below. This we admit, and shall decide the case upon that theory. (Parker v. Winsor, 5 Kas., 362, 373; Douglas Co. v. U. P. Rly. Co., 5 Kas., 615, 621, et seq.; Baker v. Gee, 1 Wallace, 333; Railway Co. v. Prescott, 16 Wallace, 603; U. P. Rld. Co. v. McShane, 2 Central Law Journal, 104; Brisbois v. Sibley, 1 Minn., 230.) Although it was provided in the 5th article of the said treaty, as it was originally drawn, that “such certificates” as those sued on in this case “shall be deemed and held in all courts as evidence of title and possession' in said railroad company,” yet the said words, “title and,” were stricken out of said article before it was ratified, and the words, “the right of,” inserted in their place, by way of amendment, so that said provision now reads, that “such certificates shall be deemed and held in all courts as evidence of the right of possession” only. (13 U. S. Stat., 629.) But although the railroad company had no title to said land at the time said certificates were assigned, yet they had a valid contract with the government under which they had' the exclusive power to obtain title, and this title they could obtain either for themselves or for their assignees ; and at the very time said certificates were assigned the railroad company had the right of possession to said land, to the exclusion of all others. They had a right to assign all their interest in the land, including their right to obtain title, and their right of possession; or in other words, they had a right to make a valid contract for the sale of the land. And such a contract the government would undoubtedly recognize as valid under said treaty. (See articles 5 and 6 of the treaty.) The plaintiff in error seems to claim that said assignments amount only to quitclaim deeds. Now, although they read in some respects like quitclaim deeds, yet in fact they are not deeds at all. They were not intended to perform the office of deeds. They were not intended to convey any present — 269 — estate or title in or to the land. But they are merely simple contracts, intended to transfer the inchoate interest of the railroad company in and to said land, and to transfer théir right to obtain said title at some future time from the government. They sold their right to have the patent from the government for the land issue to themselves, and required by their agreement that it should issue to Nancy J. Wilcox. The two certificates are alike except as to the description of the land, and the two assignments are also alike with the same exception. Below we give a copy of one of said certificates, with the assignment thereof, which reads as follows: UNITED STATES OF AMERICA. No; 700. Department op the Interior, January 2d, 1866. • Whereas, it is provided by the fifth article of the Treaty between the United States and the Kickapoo Tribe of Indians, concluded June 28, 1862, as afterwards amended and proclaimed on the 28th day of May, 1863, that after certain portions of the lands belonging to said tribe of Indians shall have been allotted and set apart for the use and benefit of the members of said- tribe, the Atchison and Pike’s Peak Railroad Company shall have the privilege of becoming the purchaser of the remainder of the lands not so set apart and allotted, upon certain conditions therein prescribed; and— Whereas, the said lands have been allotted and set apart to the members of said tribe, as prescribed by said Treaty, and the said Railroad Company has • elected to become the purchaser of the remainder thereof, and by its President, the Honorable Samuel C. Pomeroy, has executed and delivered to the Secretary of the Interior its bond in the penal sum of three hundred and tenthousand dollars, being double the value of such remainder, or surplus of said lands, estimated at the rate of one dollar and twenty-five cents per acre, conditioned as by the terms and provisions of said Treaty is required, which said Bond has been accepted and approved by the Secretary of the Interior: Now, therefore: It is hereby-certified, that under and by virtue of the provisions and terms of the said Treaty, as amended, the Atchison and Pike’s Peak Railroad Company has become the purchaser, and is entitled to the possession of 160 acres, being the s. e. J of Section Nineteen, Township Five s., Range Seven — 270 — teen e. 6th p. m., the same being parcel of the said surplus or remainder of said lands: subject, however, to all the terms and conditions, considerations, and stipulations in said Treaty in that behalf mentioned and set forth. It is also hereby further certified, that in case the said Atchison and Pike’s Peak Railroad Company shall well and truly do and perform all things required to be done and performed on' its part, in the time and manner prescribed by said Treaty, and shall well and truly pay for said surplus or remainder of said lands, as by said Treaty stipulated, then and in that case the said Atchison and Pike’s Peak Railroad Company, or the assignee hereof, will be entitled to demand and receive from the United States of America a patent in fee simple for the premises above described. In testimony whereof, I have hereunto set my hand and , -j caused the seal of said Department to be hereunto *- affixed, this second day of January, 1866. Jas. Harlan, Secretary. For value received, I, S. C. Pomeroy, President of, and as the duly authorized attorney-in-fact of the Atchison and Pike’s Peak Railroad Company, for said Company, do hereby transfer and assign to Nanay J. Wilcox all the right, title, and interest of the said Atchison and Pike’s Peak Railroad Company to the s. e. of Section Nineteen (19,) Township Five (5) south, Range Seventeen (17) east of 6th p. m., and require the issue of a patent to Nancy J. Wilcox, as assignee of said Company, in accordance with the terms of said certificate. "Witness my hand and seal this tenth day of August, 1866. Attest: S. C. Pomeroy, President of, [l. s.] and Attorney-in-fact for the Atchison and Pike’s Peak Railroad Co. State of New York, County of New York: On this tenth day of August, 1866, before me, personally came S. C. Pomeroy, President of and Att’y-in-fact for A. &P. P. Railroad Co., to me well known, and acknowledged the foregoing assignment to be his. vokmtary act and deed, and the 'voluntary act and deed^of the said A. & P. P. Railroad, Company. Chas. V. Ware, . [l. s.] Notary Public, New York City. It will be noticed that the railroad company agreed to “require the issue of the patent to Nancy J. Wilcox, as assignee of said company, in accordance with the terms of said certifi — 271 — cate.” This was a valid contract. If not authorized by the treaty in direct terms, it is certainly authorized by it by necessary and unavoidable implication. The assignment was on the same piece of paper as the certificate, and was printed thereon in blank, under the supervision of the Secretary of Interior, which .shows what the opinion of the Secretary of the Interior was. Now as the company did not allow the patent to issue to Mrs. Milcos:, as they agreed, but took the patent to the company, we think the company ought to convey the title to the land to Mrs. Milcox. Under the provisions of said treaty and said certificate and said assignment, we think it should be inferred that the railroad company should have done all that was necessary to be done, so that they could require the patent to be issued to the plaintiff, and the evidence in the case amply shows that this was the understanding of the parties. It is claimed by plaintiff in error that said assignment was made in the name of S. C. Pomeroy, and not in the name of the company. Admitting for the purposes of the case that said assignment was so made, and still it makes no difference. It is not a deed conveying title. It is only a simple contract providing for a conveyance of title. It is not necessary that such a contract be made in the name of the principal. Butler v. Kaulback, 8 Kas., 668, and cases there cited; Welsh v. Usher, 2 Hill’s Ch., (S.C.) 167. This contract however shows who the principal was, and who the agent was. It shows that Pomeroy acted merely as the agent of and for the railroad company. Me now come to the supposed errors in admitting and excluding evidence. The most of the evidence complained of, which was either admitted or excluded, was wholly immaterial to .the issues in the case, but was of such a character that the action of the court certainly did not tend to prejudice any of the substantial rights of either of the parties. That the defendant was a corporation, as alleged in the petition, was expressly admitted by the pleadings; and that said certificates, said assignments, and said patent, were all duly executed, were impliedly admitted by the pleadings. The plaintiff in — 272 — error did not put their execution in issue by denying their .execution by a pleading verified by affidavit, and hence the statements of the petition, alleging their due execution, must be taken as true.’ (Code, § 108; Gulf Railroad Co. v. Wilson, 10 Kas., 105, 111, 112; School District v. Carter, 11 Kas., 445.) Under the pleadings the question asked the witness Wilcox, and nearly all of the deposition of Pomeroy, were wholly immaterial, and neither their admission nor exclusion could have materially affected the case. In those portions of Pomeroy’s deposition, material to the case, and read in evidence, we do not see any question sufficiently leading to require a reversal of the case. We do not think the demurrer to the evidence should have been sustained, for the allegations of the petition were*amply proved. We take no notice of the evidence which was merely immaterial, or which did not tend to prove any issue in the case, and which did not tend to-prejudice the substantial rights of the plaintiff in error. There was some of this kind of evidence introduced. The most of the facts found by the court were facts admitted by the pleadings. Whether the eighth finding of fact was warranted by the testimony outside of the pleadings, or not, is-wholly immaterial. The pleadings impliedly admit the due execution of said certificates and said assignments, and evidence could not properly have been admitted to show that they were not duly executed. It makes but very little difference whether the court below was technically correct in all its conclusions of law or not, provided the pleadings, and'the evidence thereunder, and the facts found from such evidence, sustain the judgment. And we think the pleadings, the evidence thereunder, and the facts found therefrom, amply sustain the judgment, and it is therefore affirmed. All the Justices concurring.