Monroe Cattle Co. v. Becker

Mr. Justice Brown, after stating the case, delivered the opinion of the court. This case involves the construction of the statutes, of Texas with regard to the purchase of school lands, and depends upon the question whether, during the ninety days allowed to the proposed purchaser to make his first payment, it is competent for the surveyor to receive another application for the same land, or rather to permit a person, who had theretofore filed' applications for two parties, to treat such applications as withdrawn and abandoned, and to make other applications in the ñamé of different persons within the ninety days. No one can examine critically the provisions of the statutes in question without noticing the solicitude of the legislature to prevent a monopoly of these lands by capitalists, or their withdrawal from the market by fictitious applications. To secure a measurably equal allotment to each purchaser it was provided: 1. That no one should purchase more than three sections within five miles of the centre of any county of upon any water front, nor more than seven sections in any case. 2. That he should make his first payment within ninety days of his application! 3. That applications should be made in the real name of the actual purchaser. 4. That no one should reijew his application nor file on the same land more than once in twelve months. 5. That no one should renew his file in the name of another. In -this case there were circumstances Calculated to arouse suspicion in the conduct of both parties. Upon the one hand, *53 Rhomberg made application on February 28, 1882, for the purchase of these eleven sections in the names of F. Becker., S. L. Rhomberg and Conrad Becker. These applications were suffered to lapse, and on the ninetieth day thereafter, namely, May 29, he made application for seven sections of the same lands in the name of J. M. Beechem, and on the following day for four sections in the name of M. B. Thompson. These applications were also suffered to lapse, and ninety-two days thereafter, namely, August 28', he applied for the same sections, except section 66, in the name of Margaretta Rhomberg and F. M. Robinson. lie also seems to have intended that these should lapse, but as the ninetieth day, November 26, fell on Sunday, he wrote his attorneys on the 22d : “ The old file expires on Sunday next. You will, therefore, probably have to refile on Saturday.” A new application was, therefore, made on Saturday, November 25, in the name of Maggie L. Rhomberg and Frank Robinson. In this connection, the bill charged that Rhomberg made these applications in the names of other persons, who did not intend to be actual purchasers, for his own use and benefit, in order to acquire more than he was permitted to purchase directly from the State; that he further determined, in violation of the provision against renewing files in the names of other persons, to take advantage of the ninety-day limit, to allow the applications to be forfeited, and to make new applications in the names of other persons, not intending to be actual purchasers, and thus, to hold the lands for a longer period than was permitted by the law; and, for the time being, to avoid the payment of any part .of the purchase money and of the taxes, which Avould be assessed after the first payments had been made. An answer under oath being required, the defendant denied the fraudulent purposes and designs charged against Rhomberg in the bill, and, in his testimony, Rhomberg swore that Margaretta and Maggie L. Rhomberg were different persons, as were also F. M. Robinson and Frank Robinson, and that they were each of them bona fide living persons, three of then? living in Iowa, and one in Chicago; that Margaretta .Rhomberg was his sister-in-law; that he was only distantly related *54 •to the husband of Maggie L. Rhomberg, and that he was not related to eitherof the Robinsons; that he was not interested in any of the purchases himself; that he considered invest.ments in Texas school lands good, and made his views known, to many of his relatives and friends, and advised them to buy; that, as he was making his headquarters in Texas, many of them confided their interests to him; that he looked after them without demanding or expecting any pay for his services; and that the persons for whom he acted furnished the money to pay for the lands. He admitted making, several applications to purchase the lands in question, and that these were abandoned without making the first payments; that the different applications were not renewals, but were for different persons; and that they were not intended to keep other persons from purchasing the lands. In short, that the applications ’were made bona, fide for the benefit of the applicants, and that he .had no personal interest in any of them. As there was no testimony contradictory of this, Rhomberg being the only witness examined on the subject the charges of fraud must be regarded as not sustained, if, indeed, the answer be not sufficient for that purpose without other testimony, Hughes v. Blake, 6 Wheat. 453; Vigel v. Hopp, 104 U. S. 441; Beals v. Illinois, Missouri & Texas Railroad, 133 U. S. 290. Upon the other hand, the answer charges that one H. C. Jacobs was county surveyor, and J. L. Fisher was county .judge of Shackleford County; that they were partners as real estate agents, transacting business under the name of Jacobs & Fisher; that the F. B. Jacobs, who made application in January, was a brother of H. C. Jacobs,- and postmaster at Albany, the county seat of Shackleford County, and that Malinda Fisher, who applied for the remainder of the lands, was the wife of one John A. Fisher, deputy surveyor of the county, and brother of the other member of the firm of Jacobs- & Fisher; that théy entered into a conspiracy to levy a contribution upon all the .purchasers of school lands in the county, and to control the same for their own benefit; that the firmAf Jacobs & Fisher wrote letters' to Rhomberg soliciting his business, promising to sell his lands at an advance, *55 and offered to make files of applications, promising special favors and attention, to all who should employ them. It seems that Rhomberg did employ them in this connection, and had some correspondence with them. As these charges were made upon information and belief only, and as there is no evidence to support them, except the similarity of names, they must also be treated as not sustained. I.. The case resolves itself, then, into the simple question whether the surveyor was authorized to receive the applications of November 25, and whether the' plaintiff is in a position to take advantage of his failurfe of jurisdiction in this particular. The language of the act is somewhat ambiguous, but the intent of the legislature that no application shall be entertained within the ninety days is entirely clear. It provides that the State Treasurer “shall then issue his receipt for said amount and forward it, with the above named application, to the Commissioner of the General- Land Office, who shall file said application . and receipt in his office, and issue his receipt in lieu thereof, . . . which certificate shall authorize the . . . surveyor to survey the land . . . and enter the same on his books as sold, and shall not entertain another application to purchase said land until notified of the forfeiture as hereinafter specified.” Grammatically, the words “ shall not entertain ” refer to the Commissioner of the Land Office; but the proviso that “ should the applicant fail to make his first payment . . . and present the certificate of the Commissioner of the General Land Office to the surveyor or his deputy within ninety days from the date of the record of his application, then and in that case the said lands shall be again for sale, and the surveyor shall be authorized to receive applications for the same,” indicate that the. words, “shall not entertain another application,” refer to the surveyor and not. to the commissioner. As more than ninety days had elapsed-from May 29 and 30, the applications of August 28 are admitted to have been regular, and no other application could have been lawfully entertained within ninety days thereafter. As the ninetieth day fell on Sunday, the lands were not open to another application until Monday, the general' rule being that, *56 when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. Endlich on Statutes, §' 393; Salter v. Burt, 20 Wend. 205; Hammond v. American Life Ins. Co., 10 Gray, 306. The defendant, claims that, while the act prohibited the entertaining of a second application in less than ninety days from the prior application, Rhomberg in fact had the right to withdraw and abandon the application and make another at any time within the ninety days. As no record exists of its abandonment, and no allusion is made to it in Rhomberg’s letter of November 22, such abandonment can only be presumed from the fact that the new application was made November 25. There is nothing, however, to distinguish this from the prior applications in that particular. A construction of the act, too, which would permit such an abandonment would defeat the very object of the legislature, which was to fix a time within which no other application should be entertained, so that parties desiring to purchase the land would be apprised of the day when it would be open to an application. Such persons, however, could never know when an application would be abandoned, and such proceedings would permit an applicant, by a simple change of name of the person he represents, to keep the lands but of the market for an indefinite period. It is true that in Martin v. Brown, 62 Texas, 467, it was held that a fictitious application to purchase would not have the effect of preventing another person from applying before the expiration of the ninety days, but it certainly does not lie in the mouth of the defendant to claim that Rhomberg’s first application was fictitious, since his whole case depends upon the propriety and legality of his action. In Martin v. Brown the demurrer admitted that the first application was fictitious and made by an agent for his own benefit, for the purpose of withholding the lands from the market. In this case the defendant claims, and proves by the testimony of Rhomberg, that the application was made by him in good faith for the benéfit of the applicants, and not for his own. During the ninety days allowed by law for the first payment *57 the land is in the position of reserved lands under railroad grant acts. The grant does not attach to them, if, at the time, they are preempted or otherwise segregated from.' the public lands. This principle is established by a large number of cases in this court. Wilcox v. Jackson, 13 Pet. 498; Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733; Kansas Pacific Railway v. Dunmeyer, 113 U. S. 629; Hastings & Dakota Railroad v. Whitney, 132 U. S. 357; Bardon v. Northern Pacific Railroad, 145 U. S. 535; United States v. Southern Pacific Railroad, 146 U. S. 570. Defendant’s position that the subsequent issuing of a patent put an end to the equitable rights of the appellant, cannot be sustained either under the decisions of this court or that of the Supreme Court of Texas. In the case of Garland v. Wynn, 20 How. 6, 8, the general rule was stated to be “ that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the' ordinary courts of justice and litigate their conflicting claims.” To the same effect are Cunningham v. Ashley, 14 How. 377; Lytle v. Arkansas, 22 How. 193, 203; Berthold v. McDonald, 22 How. 334; Lindsey v. Hawes, 2 Black, 554; Shepley v. Cowan, 91 U. S. 330; Bohall v. Dilla, 114 U. S. 47; Sturr v. Beck, 133 U. S. 541, 550. In-the case of Stark v. Starrs, 6 Wall. 402, 419, these cases are said to be “"only applications of the well-established doctrine, that where one party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.” And in Silver v. Ladd, 7 Wall. 219, it was held that the proper relief was not the annulment and cancellation of the patent wrongfully issued, but was one founded upon the theory that the title which had passed from the United States to the defendant .enured in equity to the benefit of the plaintiff, and that the decree should' compel him to convey to the plaintiff, or to have such conveyance made in his name by a commissioner appointed by the court for that purpose. See also Johnson v. Towsley, 13 Wall. 72. It seems *58 that this is also the law of Texas. Todd v. Fisher, 26 Texas, 239; Mitchell v. Bass, 26 Texas, 376; League v. Rogan, 59 Texas, 427; Sherwood v. Flemming, 25 Texas, 408, 427; Wright v. Hawkins, 28 Texas, 452. II. It is no defence that plaintiff has not- complied with the law as to making the final payments. It appears that Jacobs and Fisher executed their obligations, as required by the act, for the balance of the appraised value, and that such obligations as have matured have been discharged and paid off, as well as the matured interest thereon. In any event, the defendant is in no position to claim a forfeiture on this ground. Canales v. Perez, 65 Texas, 291; S. C. 69 Texas, 676. III. The act of the legislature of Texas, approved April 14, 1883, for the appointment of a land board to investigate all purchases of state school lands held under the acts of 1879 and 1881, cuts no figure in this case. Such an act could operate only as between the State and the purchaser. It would be beyond the competency of the legislature to affect the vested rights of the plaintiff as between him and the defendant by the passage of the act in question. IY. Section 66 was not included in the applications of August 28, but was .included in one of those of November 25, and, therefore, as to' this section the defendant has shown the better right. Y. Defendant was impleaded by the • name of “ A. W. Becker.” Initials are no legal part of a name, the authorities holding the full Christian name to be essential. Wilson v. Shannon, 6 Arkansas, 196; Norris v. Graves, 4 Strob. (Law,) 32; Seely v. Boon, Coxe, N. J. (1 N. J. Law,) 138; Chappell v. Proctor, Harp. S. C. (Law,) 49; Kinnersley v. Knott, 7 C. B. 980; Turner v. Fitt, 3 C. B. 701; Oakley v. Pegler, 46 N. W. Rep. 920; Knox v. Starks, 4 Minnesota, 20; Kenyon v. Semon, 45 N. W. Rep. 10; Beggs v. Wellman, 82 Alabama, 391; Nash v. Collier, 5 Dowl. & L. 341; Fewlass v. Abbott, 28 Michigan, 270. This loose method of pleading is not one to be commended, but as no advantage was taken of it in the court below, it will not be considered here. *59 The decree of the Circuit Court, except as to section 66, is, therefore, Reversed, amd the case remanded for further proceedings in conformity with this opinion.