Simpson v. Greeley , 8 Kan. 586 ( 1871 )

The opinion of the court was delivered by

Kingman, O. J.:

The practice of amending pleadings by interlineation is very reprehensible; but where the party has answered after such an amendment he cannot be heard on that point when asking a reversal. It is the duty of each court to preserve its records, and prevent their mutilation; but it would be a burlesque on the administration of justice if after a protracted trial of an important case the judgment should be reversed for a cause that in nowise affected the rights or interests of the party complaining.

This action was instituted to recover the possession of certain lands forming part of what was once the Delaware Diminished Beserve, and also for rents of said lands and for timber taken off the same. The case was tried by the court which made numerous findings of fact, and gave judgment for the plaintiffs. Erom that judgment the defendants appeal to this court. Plaintiffs and defendant Simpson claimed to derive title from and by virtue of the provisions of the treaty with the Delaware Indians made July 4th, 1866, and ratified on the 26th of said month. The plaintiffs’ title was a patent from the United States to the land dated October 26 1867 to A. Caldwell the assignee of the Missouri Eiver Bailroad Company, and a deed from Caldwell and wife to plaintiffs dated December 26, 1867. Thus the plaintiffs showed a perfect paper title in themselves, and which alone would entitle them to recover. The defendant (plaintiff in error) as a defense presented in evidence certain facts and papers which it is claimed were of themselves sufficient to establish his right to the land and prevent a recovery. The defendant read in evidence a deed from the Missouri Eiver Bailroad Company by L. T. Smith, president, to Samuel N. Simpson, dated Eeb’y 21, 1867, to the land in controversy, which deed used the following terms of conveyance: “ do hereby convey, remise, release, and forever quit-claim to the said Samuel N. Simpson, Ms heirs and assigns forever, all the right, title and interest acquired by the Missouri Biver Bailroad Company under treaty of July 4th, 1866, or that they may hereafter acquire under or by virtue of said treaty.” The deed also contained this stipulation: “ It being understood that if there are any improvements on the above described lands to be paid for under the treaty before mentioned the said Simpson shall pay for the same; and reference is also hereby made to an agreement of the parties of this date, which qualifiedly controls this deed.” This agreement which is in evidence is made by Smith, president, and Caldwell, vice-president of the road, and Samuel N. Simpson, and recites the making of the deed for the land in controversy, and covenants among other things that the company will use the same diligence to obtain a patent for this land that they do to obtain a patent for other lands purchased by said company “ under the contract of purchase of said Delaware Diminished Beserve pursuant to the terms of the treaty of July 4, 1866;” and if the company do not acquire a title to said lands Simpson shall be allowed to select other of said lands equal in amount, and the company will convey the same to the said Simpson; and Leonard T;» Smith president and Alexander Caldwell vice-president of said company covenant that “ this agreement shall be well and truly kept by said railroad company.” These papers were recorded on the 31st of March, 1868. The land was conveyed by deed of S. N. Simpson and wife to the plaintiff in error on the 28th of May 1867. The court found as a fact that the plaintiffs when they took the. conveyance from Caldwell to themselves knew that defendant Simpson was in possession of the land, claiming under the title above mentioned. The court also found that S. N. Simpson had obtained such an influence over the Indians that he was enabled to prevent them from registering as contemplated by the provisions of the treaty of July 4, 1866, and that he actually did prevent them from registering, and that he did so for the purpose of compelling the railroad company to give him a section of said lands without consideration, and the deed and agreement above mentioned were the result of Simpson’s efforts to obstruct tbe carrying out tbe provisions of the treaty, and no other consideration passed therefor; and the testimony fully sustains the findings of the court on this particular. The court further finds that the said Smith and Caldwell had never been authorized by the said railroad company or by its board of directors to sell or dispose of said lands, or to make the instruments bearing date February 21st 1867, nor had either of them been so authorized, nor did the company at any time afterwards ratify or confirm- said attempted disposition of the lands in controversy. The court found that the deed from. S. N. Simpson and wife to plaintiff in error was without consideration, and was taken by plaintiff in error by collusion with his brother S. N. Simpson, and to complicate the title to the said lands; that when he took the deed plaintiff in error had seen both of said instruments dated February 21st 1867, and had notice of the facts and circumstances which induced the making of the same. It is further found that William A. Simpson tendered Smith for the railroad company for the improvements on the premises that Simpson was to pay for the sum of fourteen hundred dollars, in the fall of 1867, which they refused to accept.

So much of the findings of fact as made by the court are "presented, that the views of this court may be more readily understood. The findings are very voluminous, and so far supported by the evidence that according to well-established principles we cannot in this court say that they are wrong. The .evidence does not show the parties concerned in the original transaction out of which this suit has grown in the most favorable light. If one party attempted to obtain a title to valuable property by obstructing the legitimate action of others, the other party removes that obstruction by stipxilations which they hasten to make valueless as far as in their power. These remarks are made in response to the comments of the eminent counsel on either side, who not only claimed the land by virtue of legal rights, but by appeals to “ conscience and a sense of justice.” This court happily has no power to enforce its own ideas of right and justice, in this or any other case. Such power would make a court a despotism, settling questions not by any fixed standard, or settled rules, but by an arbitrary decision according to tbe ever-varying notions of justice. Tbe court can only declare tbe law, and leave it to operate upon tbe facts of tbe case.

The law holds the deed of the 21st of February 1867 purporting to convey the land in controversy to Simpson by the Missouri River Railroad Company to be inoperative as a conveyance, because the parties pretending to act for the company had no authority to make such a conveyance, and their acts in the premises were never ratified by the company; and therefore the deed, as a conveyance, did not bind the railroad company. The deed of 21st of February, executed by Smith, purported to be done by the railroad company by him as president. By the contract of the same date, Caldwell, over his signature, recited that the railroad company had made such a deed. There is nothing appearing in the testimony showing that Simpson had any knowledge that Smith was acting without full authority from the company. It is claimed that because of Caldwell having so made such statement in the contract, that neither he nor those claiming under him can now be heard to say that Smith had no authority from the company to make the deed. The defendants in error took their title with a full knowledge of Simpson’s claim, and of the grounds on which it rested; therefore they are in no better condition than Caldwell himself would be, had the title remained in him. Would Caldwell have been estopped from denying that Smith had authority from the railroad company to make the deed to Simpson, which he made on the 21st of February 1867? If good faith would not permit Caldwell to deny what he had solemnly asserted under his hand, and on the faith of which Simpson had acted, then the fact that Smith had no authority from the company to make the deed is of no importance, for it is a fact that neither Caldwell nor those holding under him can be allowed to prove. It is merely saying that a man shall not show the truth as to a certain fact, as to do so would be a fraud upon some party who lias relied upon Ms previous acts in his affairs.

"We then proceed in the examination as though the deed from the railroad company was made upon sufficient authority from the company to Smith. To clear the case from obscurity we may assume that the title of the plaintiffs was also under the railroad company, though this is a point not free from great doubt; but it places the plaintiff in error in the most favorable attitude, and Ms claim in a position more advantageous than is perhaps strictly its due. "While Caldwell and those holding under him are estopped from denying that Smith had authority' to make the conveyance that he did, it is not an estoppel that created an estate, or runs with land. It grows out of the recitals in the bond signed by Caldwell, and because it was the act of Caldwell, and not out of the deed of Smith as president of the road. The deed itself is not of a character that works an estoppel against a subsequently-acquired title by the grantors. The deed itself is at most a quit-claim deed. The terms used are “ convey, remise, release, and forever quit-claim.” Such a conveyance does not prevent the grantor from acquiring subsequently a perfect title to the land, and will not estop him from asserting such subsequently-acquired title against the grantee. Bell v. Twilight, 6 Foster, 401; McCracken v. Wright, 14 Johns., 193; Woodman v. Hubble, 9 Cowen, 613; Comstock v. Smith, 13 Pickering, 116; Miller v. Ewing, 6 Cushing, 34. The true principle is thus stated: “The general doctrine prevailing in the United States is that no estate can be passed by the ordinary terms of a deed unaccompanied with covenants of warranty which is not vested in interest at the time; and that estates subsequently acquired, whether by purchase or descent, are unaffected by such previous conveyance in the hands of the grantor, or those claiming under him. This general doctrine is, however, subject to, this qualification: that where it distinctly appears from the face of the instrument without the covenant of warranty, either by recital or otherwise, that the intent of the parties was to convey and receive, reciprocally, a certain estate, the grantor will be estopped from denying the operation of the deed according to such intent.” Clark v. Baker, 14 Cal., 612; Van Renssalear v. Kearney, 11 Howard, 297. The deed from the railroad company to Simpson was simply a quit-claim deed, passing only the interest which the company then had in the land, and therefore it does not purport to convey a greater estate than the company then had, and is not affected by the provisions of §4, ch. 41, Comp. Laws, p. 354, which was in force when the deed was made. Technically, then, this deed created no estoppel.

The question then arises, what effect had the conveyance at the time it was made? In other words, had the railroad company such an interest in the land as that they could make a binding and legal contract in relation to it? The company certainly had not any legal title to the land. Neither had it any possessory right whatever. There was nothing like the right that attaches to the possession of a man who settles on the public lands open to settlement. Before such a man lias paid for his land, or proved up his settlement, he has a clear right of possession; he is on the land in conformity with law. If he sell his possessory right, and give up his improvements, the sale has usually beeú held a sufficient consideration to uphold a contract for the purchase money. But if the sale was by deed, the deed conveyed no interest in the land. Nor is this the case of a man who has entered land, paid the government for it, received a certificate of purchase, and waits the action of the proper departments of the government for his patent, for such person has an equitable title which, if there be no error, will ripen without any action of his into a perfect legal title. ITis possession is lawful, and his right to the land absolute, though his legal title may not be perfect. This case is also clearly distinguishable from those cases where claims of title are pending before boards of commissioners, and are ultimately confirmed, as in Landes v. Brant, 10 Howard, 348. In such cases the decision confirms a preexisting right, and the decision is carried into effect by a patent evidencing the preexisting right; and intermediate conveyances are upheld on the ground probably (although in some cases other reasons are given,) that the right had vested before the issue of the patent, and the patent was but the solemn and formal evidence furnished by the government of the existence of the right to the land, and as to intermediate conveyances, with covenants of warranty or seisin, the title reverted back to the time when the right accrued. Nor is this like a case where a man sells land to which he may have no right in law, and the purchaser is admitted into possession, and ultimately through that possession obtains a title, and he is sued for the purchase-money and attempts to set up these facts in defense, and will not be allowed to do so, because he cannot set up a fraud in which he participated as a bar to a recovery, as in Fackler v. Ford, 23 Howard. We have adverted to these different classes of cases, as we have been referred to them as upholding the title of plaintiff in error.

In this ease when the. deed was made the railroad company had neither the legal title nor the possessory right to a foot of the land sold. It could not have gone onto it without being trespassers. So far as the court can know it might never have obtained a right to any of the land, even had the government observed all the provisions of the treaty and the stipulations of the contract between the company and itself; for it was possible that the land would all be absorbed by the Indians who might elect to hold in severalty, as authorized by the treaty— not the tract in controversy only, but all the land in the reserve. A mere possibility is not the subject of a deed unless it be coupled with an interest: Jackson v. Catlin, 2 Johns., 258; Fairbanks v. Williamson, 7 Maine, 96. There was in this instance a possibility, one which has developed into a very substantial entity. It is difficult to determine whether it was coupled with a subsisting interest. We are inclined to think it was not. It was one of those speculative chances that may result in splendid realities, or prove barren in its consequences. If such was its character the land was not then the subject of contract at all between the parties, that is, of a legal, binding contract, capable of being enforced. It is true that the company had accepted the terms of the treaty as offered it by the Secretary of the Interior, had given the bond required, had entered into an executory contract to take the residue of the land and pay therefor $2.50 per acre. But it was to get no lands, and make no payments, until it was ascertained whether there would be any lands for it to get, and where those land were was determined. By the treaty the company was offered the opportunity to purchase in preference to others; it had accepted the offer, and bound itself to comply with the conditions upon which it was offered, and this was all. It had no right to an acre of land. No title, no possession. It had a mere possibility, dependent upon conditions not under its control, as well as upon conditions that it had to perform. In this situation it is clear that the company could make no legal conveyance of the land. It is possible that a contract for the sale of the land, executory in its character, made in good faith, for a valuable consideration, would be enforceable in equity, when (if ever) the company became the owners of the land. Such is not this case. There was no consideration. The inducements to make the deed were inherently vicious. The purchaser took his deed with a full knowledge of the condition of the title, and must stand upon the title he took. No court could find an equity in it, and of course would not enforce it. The plaintiff in error is in no better condition than his brother was when he took the deed from the company. He purchased with a full knowledge of the facts, paid nothing, and took nothing. The court correctly decided that the plaintiffs were entitled to the land.

This conclusion on the main question in controversy also settles many of the exceptions made on the taking of the evidence. The paper mentioned in the 18th finding of fact has nothing to do with this case. It was made in May, and it is claimed that thereby the plaintiffs released their interest in the land, when the title to the land did not accrue till December afterward. To claim that this was a release of the land title so obtained is absurd. This settles quite a number of objections as to the admission of testimony.

The petition was for the recovery of land for rents and profits, and for timber cut and carried off from it. It is insisted that there is a misjoinder as to this last cause of action. Supposing this to be true, (which is not conceded,) the plaintiff in error cannot take any advantage of it, as he has waived it. The improper joinder of several causes of action is cause for demurrer: Code, § 89, 5th clause. This defect, if it be one, was apparent on the face of the petition. Plaintiff did not demur, and thus waived the defect: Code, §91.

Another objection is, that the court found the rental value of the land up to the time of the judgment. We do not so read the finding. It is to be presumed that the finding of a court is confined to the issues in the case, and this presumption will hold unless the contrary clearly appears. When the court finds the rental value from the time when the plaintiffs’ title was perfected, at a certain sum, it is a fair presumption, and not inconsistent with the language used, that it was from that time till the suit was brought. To construe it as running up to the time of the judgment is to infer that the court erred, without a certain ascertainment of that fact from the record.

We have examined the whole record, and expressed our views upon a few of the errors alleged, and have found no sufficient cause for setting aside the judgment. It is affirmed.

All the Justices concurring.