STATES 17. REED.
still holds them. He claims the amount due for general bala.noo on the 9th June, to wit, $1,795.12, and the storage on the packages held by him up to the present time. The contract of a warehouseman with his customer is to receive and keep and deliver to order goods placed in his custody on payment of the lawful charges therefor. He has a lien at common law; a specific, not a general, lien. The lien is upon the goods stored for the particular charge on such storage; but if the goods were received under one transaction, and form a part of the same bailment, he may deliver a part of the goods, and retain the residue for the price chargeable on all the goods received, provided the ownership of the wholeis in one person. Jones, Bailm. §§ 967, 974. This phrase "under one transaction" does not mean at the same time, but pursuant to one contract. In the present CMe we assume that the goods were warehoused under a contract and on teEms covering all bailments ot Fleming & Devereux. This brings the case within the rule stated allowing the detention of some of the goods for a balance due on all. It is contended with great earnestness and plausibility that, when a warehouseman enforces his lien and refuses to deiiver on demand, his custody thenceforward is not under his contract of warehouseman, and for the use and benefit of his customer, but his own protection and benefit. He then has no further right to charge storage. The text-book (Jones, Liens, § 972) and the cases quoted (especially Somes v. Shipping Co., 8 H. L. CM. 338) do not sustain thi:3 proposition so broadly stated. Where one is placed in possession of a chattel to do some work on it, and refuses to deliver it when completed until he is paid, he can: not charge storage of that chattel while he is enforcing his lien, because the original contract for repairing and the subsequent implied contract for storage are entirely distinct and separate; but in a case like the present, when the contract is that of storage, and the con· tract is for the delivery on payment of charges, the right to hold the goods under the original contract does not cease until those charges t1re paid, released, or tendered. This seems to be the law of this case. As no tender or offer to pay has been made, the warehouse charges still go on. The special master simply reported the testimony. This opinion fixes the rule upon which the accounts can be made up. Let the case be recommitted to the special master, for a statement of the account upon these principles, allowing all proper credits; and let him report the result.
UNiTED STATES v. REED et
(CirCUit Court, D. Minnesota. December 23, 1892.,
PUBLIC LANDS-CANCELLATION OF PATENT ISSUED BY MISTAKE:
Certain adjustmentl:l of land scrip loeutiouli, being contested, were ap· pealed to the senetary of the interior, by whom it was held that the ad· justments were invalid, and that the contesting claims must also be rejected, and the land disposed of under the public iand laws. Thereafter one R. entered said lands, and obtained a final certificate. On the same day several other persons attempted to. make entries or locations of the
'd,i ,'bu, "ifill"pll,ilIMtlOns wer,e,' deni,ed. lIDd, they," ',t, ',tQ" itb,e, o;fJlce. FEmding these B1PtjOl;' of the d;ec1sion Qf the Qf ,the Interior in aNUlrtment and claims, and thereupon, m pursuance . respoot to the of:the'lnterlor department, an order was made, suspendof a Ing :111 action. under the decision oought to be reviewed, But, notwith!5ctouding sucll.OI:'der. throngll the mist!\ke of a clerk in the land , ,d.epartment, R!.s was approved, an,d a patlmt was madvertently issued to him. HeW, tpat the patent should be canceled on a proceeding by the United States' for that,pUr'pose.
,On a by the, United States to cancel a patent inadvertently lamed pend,lng appeals by other Cla.lm:mts, the government is not bound to , show, that' the ,other' c1aUnants 'Would be successful In thelJ: appeal, but is entitled to have the patent 't-anceled, unless the patentee proves that by the 1iawproperly admlnlsWredhe would be entitled to the patent, and it is ,dPUQ;ttul wpether evensuo:\l proof would be admitted.
Bill by the United States to cancel a land patent. Decree for, , W. H. H. Miller, Atty. -Gen., and Eugene G. Hay, U. S. District Atty., (Robert G. EV8JlS,8peeiaJ. Asst., U. S. Atty., of counsel,) for the United, States. BUlson & Congdon, for defendants. NELSd:N;District'Judge. The bID 'ot complaint is filed by the United States against,''':£'homasReed, a citizen of state of Nebraska, Company,a coI1loration duly created, oreXisting ynder ,the laws, of' the state of Minnesota, Emil Hartmann, and Richm.Qn4'D. Mallet, citizens of the state of Minnesota.':rherelief sought i;ri the bill of complaint is to cancel and vacate a'witent issued on November 20, 1889, by inadvertence and mistake, and delivered November 29, 1889, to Thomas Reed, and t<l restrain the other defendants from up or asserting any title whatsoever under or through the !laid, patent. The'derendant Reed suffered a defaUlt; the-other defendants answered the bill. After replication; a stipulation was entered into and ftled by the parties agreeing upon certain facts. This stipulation and the admissions in the answer, witll certa,in, exhibits offered, and the, testimony of the land deJ»l.rtDient and subordinate clerks, present the case for the determinaitLon of the court: '
The facta found are these, and are substantially set forth in the abstract of the brief of the counsel for the government: (1) The land the patent was a part of the public domain held by the United States at the time of the issuing of the patent. ' , (2) On day of July, 1885, OrUie Stram, formerly Moreau, adjusted alocation previously made on unsurveyed land of complainwith'Sioux half-breed scrip, issued an ,act of congress of July 17,,1854, to lots! a,nd 2, and S. W.1-4 oithe N, E.l·4, and N. W. of the S; E.1-4, of section 30;, township 63 :No; range 11 W., and other land in Duluth land district of. 'Minnesota; and that said loca-
'UNITED STATES .". REED. ,-
tions were posted -in the· proper tract books of the office of the commissioner of the general land office on the .9th day' of September, 1885. (3) The validity of these adjustments was contested by one Fred T. Huntress, and 'l'homas W. Hyde and Angus McDonald made certain pre-emption claims to some of said tracts. Upon appeal to the secretary of the interior, who had jurisdiction over said matter and said claimants, the said secretary, on February 18, 1889, decided that said scrip locations were invalid, and should be canceled; that the preemption claims of Hyde and McDonald must be rejected; that the claim of Fred T. Huntress could not be recognized; and that the land in controversy must be disposed of under the public land laws of the United States applicable thereto. (4) On February 23, 1889, Thomas Reed, one of the defendants, applied to make soldier's additional homestead entry of the S. W. 1-4 of the N. E. 14, and lots 1 and 2, section 30, township 63 N., range 11 W., Duluth,· Minn., to the proper officers of the land office of the United States at Duluth,Minn., was allowed to make such entry, and obtained final certificate on said· day, numbered 1,420. (5) On the same daY' that said Reed made his' entry CharlesP. Wh-eelerapplied to locate the S. W.1-4 of the N. E; 1-40£ said section 30 with Valentine scrip, (the character of whichis'shown in, Exhibit 4, pages 68 to 69, inclusive;) and one Warren Wing applied to enter lot 2 of section 30, under'section 2306 of the Revised Statutes of the United States, (Exhibit 4 page 51, and 5, page 72; answer, page 10;) each of said applicants, including said Reed, claiming that his appliell,tion was prior to the others. -(6) On the morning of the day when the Reed entry was allowed one William M. Stokes was, among other applicants, to make various kinds of entries before and at the time of the opening of the doors of the local land office at Duluth, present at said doors, and attempting to enter the N. W. 1-4 of the S. W. 14 and the S. W. 1-4 of the N. R 1·4- of the section aforesaid as a soldier's additional homestead. l7) The applications of Wheeler, Wing, and Stokes were denied, and they appealed from such denial to the commissioner of the genern} land office. (8) On February 18, 1889, and ever since, there has been in exist· ence in the deplY'tment of the interior a rule that motions for review of the decisions of the secretary of the interior should be filed in the otfice of the commissioner of the general land office, and that the cmllmissioner should thereupon suspend .action under the decision sought to be reviewed, and forward to the secretary such motion. (9) Motions for review of the decision of the secretary of the intprior of February 18, 1889, were duly made and filed on March and 15, ] 889, respectively, by the parties affected adversely by said decision. Thereupon an order was made suspending all action under the opcision sought to be reviewed, and such order was of full force, and such motions were pending unheard and undetermined at the time and ufter the issuing of the patent sought to be canceled; TIlt' pat· ent to Reed, hereinafter referred to, was issu.ed in direct lioladon or in igIJ.oranceof :said order·.
,(10)..A::tthe time of and"before the approval for patenting of the lanas in the Reed patent and the issuance of said patent, the appeals of Charles P. Wheeler, Warren Wing, and William M. Stdkesfrom the rejection of their several applications hereinbefore referred to, were pending, unheard and undetermined, and have not siue'been heard or '(ll),Whilf' said appeals and motions were pending and undisposed tlfj. of the .general land office at Washington,· whose duty it was w ,xfim5nt> entries of the character described,in ignorance of the pendency of said conflicting claims, said motions, and Said uppeals,;approved the lands described in the said patent for· to Thomas Reed, ODt.> of the defendants herein, and a patent \vas upon such approval issued to him on the 20th day of November, 1889_ Thatsa'id .patent· 'Waf' signed.by the secretary to the presidc·nt, counteI'Signed .by the recorder of the generallandoffiee, each of whom, at the::time they Signed and countersigned said patent as of the pendency of the aforesaid coIiflicting clahns, .wholly upon the Said approval of said clerk. . The approval of the entry for patent and the signatures to the pa.tent were XIladeiillotwithstanding the. fact: that a caveat point.ing out the conflieUl wu ,on file with.the rest of the entry papers relating to t:he lands invobed,and such approval and signatures were made in ignorance ofth.e:oontents of said caveat. .. .'(12) Said patent was delivered and on the 29th day of Novemb 'l', 1889, recorded in BookD of Patents, p. 54, in the officeot the register of deeda (jf St. Louis county, Minn. (13) Demand has duly been made by and under the direction of the Illecretaryof the interior uponrthe defendants, and each of them, for a relinquishment of all right, title, and interest iIi or to said .land derived by them under or on account of the issuance of said patent, and saiddefen.dants, and each of them, have refused to comply with such demand., (14) ** * * * * * * (15) The answer of defendants other than Reed attempts to allege thatsnch·defendants took the real estate described in said patent in good faith, without notice of the circumstances attending the issuing of' the patent, and for a valuable consideration. There is some evi· dence ,in the record bearing upon this question, but before the taking of was concluded solicitors for defendants notified complainant that such defense would not be relied upon, and therefore this point, is not further noticed in the abstract of facts, and will not be referred to in the brief of complainant. This question being elim· inated from the cont,r0versy, the contention stands the same as if between the government and the patentee Reed, and it is upon this theory that it will be submitted in complainant's brief.
That a public wrong was perpetrated upon the executive depart· ment by subordinate clerks, in consequence of which the department has disabled itself from discharging the duties imposed upon it by law, and that the complainant is entitled to the relief prayed for in
'UNI'l'ED. .STA'l'ES V.REED.
the bill of complaint. A decree is ordered in favor of the complainHnt
'The governlnent can sustain a suit in equity to set aside 1;1. patent or cancel it when its duty to the public requires such action.. ,The undisputed facts in this case show that by the inadvertence and mistake of a subordinate clerk the interior department was disabled from penorming its function and discharging its legal duty to review contests properly before it. It was contemplated that the land department should consider contests like the one pending before it. A con· structivefraud was perpetrated by the acts of subordinates in the department. , A court of equity cannot be called upon to exercise its jurisdiction in a case more appropriate. "When the legal rights of the parties have been changed by inadvertence and mistake, equity restores them to their former condition, when it can he done without interfering with new rights acquired on the strength and faith of the altered condition of the legal rights, and without injustice to the parties. The contention of the defendants' counsel is that, notwithstanding the defendant Reed is shown to have obtained the patent irregUlarly, by the inadvertence and mistake of the subordinate official, the government, before it is entitled to relief, must, in addition, show that the defendant would not have prevailed if the reheal'ing and appeals had been heard. Such is not the rule applying to suits by the United States of this character. It applies o:nly to cases brought for equitable relief to individuals. Where a patent has issued by mistake of its agents, equity affords relief to the government, as it would if corruptconduct on the part of its officials is shown; and, when such is established, the patent must fall, u:nless the patentee proves that by the law, properly administered, he would be entitled to it; and even then it is doubtful whether a court of equity would receive proof of that kind after the mistake and inadvertence of the subordinate agents were established. In the case of Williams v. U. S., 138 U.S. 517, 11 Sup. Ct. Rep. 457, some wholesome doctrines are announced, applicable to the facts in this case, and the decision rests upon "the uncontrovertible fact that through inadvertence and mistake the land was certified, (patented.) * * *"
NOTE. Cases examined: Moffat v. U. S.· 112 U. S. 24, 5 Sup. Ct. Rep. 10; L. S. v. 2\llnor, 114 U. S. 233, 5 Sup. Ct. Rep. 83G; :Maxwell Land Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015; U. S. v. San Jacinto Tin Co., 125 U. S. 273. 8 Sup. Ct. Rep. 850; U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Hep. 1083; U. S. v. Iron Silver Min. Co., 128 U. S. 674, 9 Sup. Ct. Rep. 195; Williams v. U. S., 138 U. S. 514, 11 Sup. Ct. Rep. 457; Marquez v. Frisbie, 101 U. S. 473; Casey v. Vassor, 50 Fed. Rep. 258; U. S. v. Marshall Silver Min. Co., 129 U. S. 579, 9 SIp. Ct. Rep. 343; U. S. v. Missouri K. & T. Ry. Co., 141 U. S. 358,12 Sup. Ct. Rep. 13.
t. USUBt'..:J.WRA1' 'OoNS'l'1'1'utr]ts-B()NUIl '10 ,BOltROWER'S' AGENT.
WAelle ,An :l\gElut in a iI,oaJ,l transactiQJ1. is agent of the borrower, and' not eu<Ie.r. .. e r. what the borrower th.e. to his own, agent .. teJ;l!ll :to.'tlli;) . e usW1'.tor.eceiVe8"a ponus fr.OD;1 paysborroweris 1m.mafot' '8 loan is it0lltl.rt of the wm paid for the loan or torbearance
i " "
aBAlIE-BOltU&'irO LBNDllll\'. AGlIlNT. ,If lUl..·iM ... '" loa.u traJ1Saction Is .. .. ...
..t Of. tha.lender.vnte.ss th.e proOf. to the agent to for his the la w.ful rate of interest. or he ..had knowledge, express . or lluplihlcl" ,that the' agent had such a purpose. be asserted to ' : of interest does not include by 1,l1e '1luthority to, loan at an illegal rate. ,An authority to violate the la\\t'Wlll'uever be preSumed. ' . . the, qourt.)
:,An aJl¥lwrHl.to loan money ata
. In Equity. i Bill bY' Oharles L Dryfus against Cha.rles Burnes ttnd Catherine: iBuPhes rotoreelose a mortgage. Decree for plaintiff.
P District Judge. This is a suit· to foreclose tt mortgage given tol$6curea loan of $8,000 a.t 10 per cent. interest. The defendants, plead usury. The facts produced in evidence show that the money of plaintiJf was received· by' Burnes and wife from plaintiff through Patterson &'PaI'kel', loan and real-estate agents. By the contract, plabltiff was to have 10 per cent. interest 01'1. the loan. On agreement <with Burnes and wife with Patterson &, Parker they were to have 2 per cent. ·for negotiating the loan, for securing the money for them. Whose agenta· were they? I find from the proof offered in the case ,that they were the agenta of Burnes and wife alone. This being. true, it would make no difference that they received a bonus of $100 from the borrowers. This doctrine is clearly sustained by Vahlberg v. Keaton, 51 Ark. 544, 11 S. W. Rep. 878, in which case the supreme court, speaking Of. a condition where. the agent acted as Iilu,ch, .of the borrower alone, says:
"Whether herecei,ed or did not receive a. bonus is immaterial to the plea of uSlU-y.What the borrower paid to his own agent for procuring a loan is no partot the sum paid fotthe loan or·:torbenrance of.money."
.If it coll1dbe held the facta that Parker were the agents of plaintiff in this loan transaction, it could not be held from the proof that plaintiff had given Patterson &, Parker any authority to exact for his benefit any more than the lawful rate of interest; nor that he had any knowledge, actual or constructive, of any such purpose. TheIl, upon this ground, under the doctrine declared in the case of Call v. Palmer, 116 U. S. 98, 6 Sup. Ct. Rep. 301, usury could not be asserted to defeat the remedy in this case, as,