SOWLES v. WITTERS et al. (Circuit Court, D. Vermont. November 9, 1889.) JUDGMENT-MUTUAL JUDGMENTS-SET-OFF. Where complainant has a decree in equity that defendant pay her dividends on stock held by her, and defendant has against complainant an unsatisfied judgment at law for an assessment on said stock, the court, on motion, will order the amounts to be paid under the decree applied on the judgment, though the judgment was at a former term, and complainant intends to appeal therefrom. In Equity. Motion to set off decree in equity against a judgment at law obtained at a former term by defendant against complainant. Kittredge Haskins, for oratrix. Chester W. Witters, pro se. WHEELER, J. The oratrix has an order for a decree that she is a creditor of the First National Bank of St. Albans to the amount of $26,034.75, and that the defendant pay her dividends thereon. Sowles v. Witters, 39 Fed. Rep. 403. The records of this court show that the defendant has an unsatisfied judgment against her for an assessment upon her stock in the same bank. Witters v. Sourles, 38 Fed. Rep. 700. The defendant moves, on settlement of the decree, that the amounts to be paid to her be decreed to be applied on the judgment against her, instead of paid to her in money. The oratrix objects because the judgment was at a former term and at law, and because she intends to prosecute a writ of error and an appeal from the judgment and decree. The decree would not disturb the judgment of the former term, but only satisfy it so far; and the judgment is in this court, although on the law side, and can be found by mere inspection of the record without trial. A court may always inspect its own records to ascertain what is there, although it may not have power, after the terms, to alter judgments and decrees shown by them. The writ of error does not vacate the judgment, and cannot now operate as a supersedeas. If the judgment is enforced, she will pay its amount to the defendant; if the decree is enforced, he will pay the amount of these dividends to her. The receipts and payments are in the same right in each behalf. Circuity will be avoided, and the judgment and decree be both carried out, by making the decree for the application of the dividends upon the judgment. The power of the court to so frame its decree as to make this set-off seems to be ample. Conable v. Bucklin, 2 Aikens, 221; Rix v. Nevins, 26 Vt. 384; Sellick v. Munson, 2 Vt. 13. Let the decree be so drawn and entered. BAILEY v. HURLBUT et al. (Circuit Court, D. Connecticut. November 8, 1889.) MORTGAGES EVIDENCE. Defendant, who was executor of his father's estate, obtained money from a bank on the check of a third person, with which he paid mortgages on his father's land, and took an assignment thereof to himself, receiving also a quitclaim deed to the land from the mortgagee. He deposited the mortgages with the bank as security for the check. On its dishonor he obtained money from plaintiff's assignor with which to pay it, and assigned to him the mortgages, quitclaim deed, and a warranty deed to another tract, as security. The check was also sent to plaintiff's assignor, but he returned it to the original payee. Held, that the loan was made to defendant, and not to the drawer of the check, and the securities bound defendant and the land. In Equity. On bill for foreclosure. Wm. F. Hurlbut, for defendants. SHIPMAN, J. This is a bill in equity for the foreclosure of mortgages upon real estate. Prior to April 11, 1881, Joseph W. Hurlbut had mortgaged his homestead in Winchester, Conn., to the Winsted Savings Bank, by two mortgages, to secure two notes for $1,000 and $500, respectively, and had died leaving a last will, by which he appointed his son William F. Hurlbut his executor, and devised one-third of said land to him, and one-third to him as trustee for Warren P. Hurlbut, and said savings bank had obtained a decree for the foreclosure of said mortgages. On said day Joseph M. Hurlbut, of Brooklyn, N. Y., another son of Joseph W., delivered to said William F. a check of Henry A. Taylor upon a bank in Rochester, N. Y., for the sum of $2,600, to the order of Joseph M., and by him indorsed, and also subsequently indorsed by said William F. The money upon said check was advanced to William F. by the Hurlbut National Bank of Winsted, and, with the exception of about $30, was paid to said savings bank for an assignment of said mortgages, and in payment of a mortgage of about $500 upon another piece of land which had been executed by William F. individually. The savings bank quitclaimed their interest in said mortgaged homestead to William F. The two mortgage notes and deeds of said premises were delivered to said national bank to be held in escrow for the time, and to become, if need be, security for the payment of said check. It was unpaid, and earnest demand was immediately made upon William F. for payment. Joseph M. induced Henry F. Shoemaker to undertake to loan to William F. the money to take up the check. Shoemaker sent his lawyer, Theodore B. Gates, to Winsted to make said loan, if the security seemed sufficient. William F. wanted that Taylor should be Shoemaker's debtor, and that the securities should be assigned to Shoemaker, as security for the payment of Taylor's debt. Gates thereupon returned to New York, but Shoemaker refused to accept. Taylor as his debtor, and Joseph M. ineffectually attempted to induce Taylor to agree to indemnify William F. Thereupon, on April 26, 1881, Gates sent to William F. a certified check for $2,607.25, the amount of Taylor's protested check, and interest and expenses thereon, which William delivered to said Hurlbut Bank, received the deeds of said mortgaged property, executed an absolute quitclaim deed of said homestead to said Shoemaker, and also an absolute warranty deed of another piece of real estate, as described in the bill of complaint, and sent to Gates the two mortgages on the homestead, with the two notes and the warranty and quitclaim deeds and the Taylor check. Gates subsequently returned the check to Joseph M. The two mortgages, notes, and quitclaim deed were security for the payment of the Shoemaker loan, and the warranty deed was intended to be additional security for the same debt, if such security was needed. It was accepted by Shoemaker as such security. and was thereafter recorded. Neither interest nor principal has ever been paid upon said loan of $2,607.25, but the whole is now due. Said Shoemaker subsequently assigned, for value, all said debt and all said security to the plaintiff, who, or his assignor, has paid taxes to the amount of $127.43, as alleged in the bill of complaint, upon said mortgaged pieces of real estate. It is claimed by the plaintiff that the fees and expenses of said Gates, amounting to $120, were to become a part of said loan, were to be included in said security, and were to be repaid by William F. The negotiations with Shoemaker for said loan were conducted by Joseph M., who was anxious to preserve the homestead, and prevent its being lost to the Hurlbut family, and I have no doubt that he promised repayment of the $120; but it is not proved that William knew of or ratified this promise, or made himself responsible for the repayment. The only question in dispute in the case is whether the loan of $2,607.25 was made to William F. or to Taylor, and whether the deeds and securities which were given by William were security for the payment of Taylor's or his own debt. The history of the transaction, and, especially, the testimony of Gen. Gates, leave no doubt in my mind that the theory of the plaintiff is the correct one. Let a decree be entered for the payment by said William F. to the plaintiff of $2,607.25, the interest thereon, said taxes, and the costs of this suit, within such reasonable time as shall be designated, and, in default of such payment, for a foreclosure in accordance with the prayer in the fourth count of the complaint. UNITED STATES v. RICHMOND MIN. Co. (Circuit Court, D. Nevada. November 23, 1889. PUBLIC LANDS-RIGHT TO TIMBER CUT FOR MINING PURPOSES. The defendant, a corporation engaged in mining, reducing ores, and refining bullion, purchased wood and charcoal for use at its reduction works. The cord-wood, and the wood from which the charcoal was manufactured, were cut upon unsurveyed, public lands, mineral in character, of little or no value except for the mineral therein, and within organized mining districts, or not far remote from known mines. Held, that this was mineral land within the meaning of the act of congress of June 3, 1878, permitting timber to be taken therefrom for "building, agricultural, mining, or other domestic purposes;" and that defendant could lawfully purchase such wood and coal for said use under the license given by said act. J. W. Whitcher, U. S. Atty., and Henry Rivers, for plaintiff. The SABIN, J. This is an action of replevin, brought by plaintiff to recover from the defendant the possession of 10,000 bushels of charcoal, of the alleged value of $1,800, and 300 cords of wood, of the alleged value of $2,100, the same being at the yard and premises of the defendant at the town of Eureka, in this state. The complaint alleges that said coal was manufactured from wood cut and removed from the unsurveyed public timber lands of plaintiff within said state, and that said 300 cords of wood were cut and removed from said lands, and all so cut and removed unlawfully and without the consent of plaintiff, and that plaintiff is now the owner thereof. Plaintiff demands judgment for the recovery of the possession of said coal and wood, or for the value thereof, in the sum of $3,900, if recovery of possession cannot be had. The answer of defendant denies that plaintiff is the owner of said personal property; denies that said wood was cut from the lands mentioned in the complaint; denies that defendant wrongfully or unlawfully or without plaintiff's consent took possession of said property, or wrongfully or unlawfully withholds possession of the same, or any part thereof, from plaintiff. The case was tried before the court, without a jury. findings of fact upon the evidence submitted are brief, and as follows: "(1) That the defendant, the Richmond Mining Company of Nevada, is a corporation duly organized and existing under and by virtue of the laws of the state of Nevada, engaged in the business of mining, purchasing, and reducing ores, and separating gold and silver from lead, in the town and county of Eureka, state aforesaid, and was such corporation and so engaged at the time of, and long prior to, the commencement of this action. (2) That at the time of the commencement of this action said defendant was in possession of 16 cords of wood, of the value of six dollars per cord, and seven thousand bushels of charcoal, of the value of 21 cents per bushel, at its works in said town; and that said wood, and the wood from which said charcoal was manufacture, was cut upon the unsurveyed mineral lands of the United States, not subject to entry under any existing law of the United States except for mineral entry; and that said wood was cut, and said charcoal was burned, by bona fide residents of the said state, for use in the said county, and sold to said defendant for use in carrying on its said business in said town, at a distance of about three miles from its mines. (3) That the trees from which said wood was cut were a species of scrubby nut pine, cedar, and what is locally called Mountain Mahogany,' about ten or twelve feet in height on an average, with bodies from four to eight feet in length, and less than twelve inches in diameter, and unfit for manufacture into either lumber or timber." I believe the correctness of these findings is not questioned by either party. The defendant justifies its purchase and possession of said coal and wood under the provisions of an act of congress, approved June 3, 1878, (20 U. S. St. p. 88, c. 150.) The section of said act under consideration reads as follows: 66 "That all citizens of the United States, and other persons, bona fide residents of the state of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States except for mineral entry, in either of said states, territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: provided, the provisions of this act shall not extend to railroad corporations." From the findings of fact as above set forth it would seem that defendant's justification of the purchase and possession of this coal and wood is complete. It was shown in evidence, and admitted, that the land upon which all of this wood was cut and removed was and is unsurveyed public land of plaintiff. A large number of witnesses was examined as to the character of this land, whether mineral or not, and whether more valuable for the timber or wood thereon than for known mines. The witnesses differed in their judgment as to the character of this land, or at least as to the particular, limited part thereof, the locus in quo, from which this wood had been removed. On this point, the most of the witnesses for plaintiff were teamsters, or men engaged in cutting, hauling, or furnishing wood or coal to those desiring to purchase it. Their evidence, generally, was to the effect that upon the particular tracts of land upon the hills or mountains, whence this wood had been removed, they had never seen any well-known mines, nor had they observed marked or well-defined traces of mineral-bearing ledges. By their own evidence it appeared that they were not looking for mines or ledges, not interested especially in them, and their observation was only the most cursory. They were in no wise skilled in discovering or noting mineral signs and traces, and it would have been purely accidental had any of them, in walking over or along a rich ledge, discovered its existence, or discerned that it might be valuable. I do not question the integrity or truthfulness of any of these witnesses. I doubt not they were honest, and testified to matters as they saw them,—or, rather, did not see them. The value of negative evidence is often slight. It is often unsatisfactory, unless it be shown that the witness possessed thorough knowledge of the subject; that he had ample field for observation and that his attention was closely called to the matter under discussion. None of these conditions obtain as to these witnesses. On the part of the defense it was shown that this wood was cut, if not wholly within the limits of an organized "mining district," yet certainly adjacent thereto, and much of it not far from known and recognized mines, and all within what is commonly known and recognized as a mineral region,—a tract of country where mines have been found, and may be sought for with reasonable hope of v.40F.no.8-27 |