Tindal v. Wesley

• Decision Date: 10 May 1897
• Docket Number: No. 231,231
• Citation: 42 L.Ed. 137,17 S.Ct. 770,167 U.S. 204
• Parties: TINDAL et al. v. WESLEY
• Court: U.S. Supreme Court

167 U.S. 204

17 S.Ct. 770

42 L.Ed. 137

TINDAL et al.

v WESLEY.

No. 231.

May 10, 1897.

W. A. Barber, for plaintiffs in error.

W. H. Lyles, for defendant in error.

H. Lyles, for defendant in error.

Mr. Justice HARLAN delivered the opinion of the court.

Wesley, a citizen of New York, brought this action in the circuit court of the United States against Tindal and Boyles, citizens of South Carolina, to recover the possession of certain real property in the city of Columbia, S. C., with damages for withholding such possession, as well as the value of the use and occupation of the premises.

The complaint alleged: That on the 16th day of February, 1892, the plaintiff purchased from the commissioners of the sinking fund of South Carolina two certain parcels of land in the city of Columbia, in that state, on one of which is a building known as 'Agricultural Hall'; the lots being the same conveyed to the state by deed of J. B. Johnston, dated April 9, 1883, and duly recorded.

That on the day of the purchase, the premises, by the direction and appointment of the plaintiff, were conveyed by the commissioners to J. W. Alexander, to hold the same 'in trust for the use of the plaintiff, his heirs and assigns, forever, and to permit the plaintiff to have and possess the same, and to enjoy the profits, and in trust to convey the same to the plaintiff, his heirs and assigns, or such person as he might direct and appoint.'

That, upon the request of the plaintiff, J. W. Alexander, by deed dated the 11th day of February, 1893, conveyed the premises in fee simple to the plaintiff.

That, the plaintiff 'being so possessed thereof, the defendants, on the 20th day of February, 1892, wrongfully entered into said premises, and ousted the plaintiff, and that the defendants are, and ever since the said 20th day of February, 1892, have been, in possession of said premises, and have been and still are withholding the same from the plaintiff, although plaintiff has demanded from the defendants the possession thereof, to the damage of the plaintiff ten thousand dollars.' And

That the value of the use and occupation of the premises was at least $2,500 per annum.

The plaintiff demanded judgment against the defendants for the possession of the premises, for $10,000 as damages for withholding the same, for the value of the use and occupation of the premises after February 20, 1892, at the rate of $2,500 per annum, and for the costs and disbursements of the action.

The defendant Tindal answered, and for his first defense denied each and every allegation of the complaint. For a second defense he alleged that on the 20th day of February, 1892, he was, and thereafter continued to be, and was at the bringing of this action, the secretary of state of South Carolina; that the premises described in the complaint on the above date were, and thereafter continued to be, and now are, the property of the state, in its possession, and in actual public use; and that he 'has no right, title, interest, or estate to or in the said premises, of any kind whatever, but that in pursuance of law the same is in the custody of this defendant as said secretary of state.'

The defendant Boyles made the same defenses as his co-defendant Tindal, and further alleged that he had 'no right, title, interest, or estate of any kind to or in the said premises, but that by the employment of the said J. E. Tindal as secretary of state this defendant has been and now is engaged, on behalf of the said state, in watching, guarding, and taking care of the said premises.'

The jury found for the plaintiff the possession of the land described in the complaint, and judgment for such possession was entered in his favor. This was followed by an execution commanding the United States marshal or his deputies to deliver possession of the property to the plaintiff.

That judgment was affirmed by the circuit court of appeals. Tindal v. Wesley, 25 U. S. App. 124, 13 C. C. A. 160, and 65 Fed. 731. The case is in this court upon writ of certiorari directed to that court.

1. The bill of exceptions shows that W. H. Lyles was a witness on behalf of the plaintiff, and while under cross-examination gave the following testimony:

'Q. You and Mr. Muller went out of the state treasurer's office, and almost immediately returned. Now, what occurred between the state treasurer on the one hand and Mr. Muller and yourself on the other? A. We returned within five minutes,—I think, within two minutes. We called the state treasurer's attention to the fact that the bond which had been delivered by us for Alexander contained a clause which authorized him to anticipate of it at any time, and we told him, on behalf of Mr. Alexander, we desired to pay that bond and mortgage immediately. We then drew out the revenue bond scrip known as the 'Blue Ridge Railroad Scrip,' which we counted out to the amount of a few cents or dollars in excess of the amount due on the bond and mortgage from its date up to the date of this transaction, and we told Dr. Bates we tendered him that in payment of the bond and mortgage. We demanded no receipt; we demanded nothing. Q. And it was refused? A. Yes, the advertisement was not referred to. Q. Was it not the purpose of the transaction to create an issue in the United States court, in order to test the validity of the revenue bond scrip, was not that the object of the purchase? A. The object of the purchase from the beginning was to create an issue as to the validity of the revenue bond scrip, but, as to the United States circuit court, we were not ——Q. Then, when you bought it, you did not intend to pay for it in good money? A. We did, and considered the scrip as good money. Q. When you made the purchase, you made it with a view of compelling the state to take the deferred payment of it in revenue bond scrip? A. Yes. Q. Did you happen to know whether the revenue bond scrip had any value in the market? A. I don't know. Q. It has not? A. I don't know that it has. Q. Very little, if any? A. Yes. Q. You know Alexander? A. Yes. I have never seen him personally. Q. Do you know him as a poor man? A. Yes. Q. He and Mr. Wesley had no use for this property, that you know of, except to create the issue to which you have referred? A. That was the sole object for which it was purchased. Mr. Wesley regarded the property as worth the money, and, even if he had to pay, he would not lose the money. Q. Mr. Wesley holds a large block of revenue bond scrip? A. Yes.'

The court excluded this testimony and the defendants duly excepted to its ruling. That ruling is the subject of one of the assignments of error.

It is claimed that the excluded testimony tended to show that Alexander and Wesley intended, from the outset, to make the payment of the deferred installments of purchase money in 'revenue bond scrip, known as 'Blue Ridge Railroad Scrip"; that by the terms of the contract the purchaser was entitled to anticipate the payment of the deferred purchase money; and that, as soon as Alexander received the alleged conveyance from the commissioners of the sinking fund, he attempted to discharge the bond and mortgage given to secure the unpaid purchase money by tendering in payment 'revenue bond scrip.' But all this was immaterial under the issue in this case as to the right of possession of the premises. If the legal title passed by a valid deed from the commissioners of the sinking fund, then the right of the grantee to possession was not impaired by the circumstance that he intended to insist upon paying the deferred installments of purchase money in revenue bond scrip. Whether he was entitled to make payment in such scrip was a question to be finally determined when suit was brought to foreclose the mortgage given to secure the payment of the balance of the burchase price. But the possibility, or even certainty, that such a dispute would arise, constituted no reason for refusing possession if the conveyance to Alexander was valid, and passed the legal title, without any reservation by the grantors of the right to retain possession until the whole purchase price was paid.

Throughout the argument of counsel for defendants it is assumed that the purpose on the part of both Alexander and Wesley to tender revenue bond scrip in payment of the deferred installments was, in itself, a fraud that entitled the commissioners of the sinking fund to withhold possession after conveying the legal title. We cannot concur in this view. If, under the law of the state, the scrip referred to could be used in meeting any obligations due to it, how could it be regarded as a fraud to do what the law allowed to be done? Nor was it, in any legal sense, a fraud for Alexander or Wesley to form the purpose of tendering such scrip in payment, in order that there might be a judicial determination of the question of its validity. If the deed had been obtained under assurances that the deferred installments of purchase price should be paid in money, and not in revenue bond scrip, it may be that the commissioners, in a proper proceeding, could have obtained a rescission of the contract. But upon that point it is unnecessary to express an opinion, as no such case is presented by the record. The case here is one in which the excluded testimony does not tend to show anything more than that Alexander, and, perhaps, Wesley, did not, during the negotiations for the property, or before the deed was obtained, disclose to the commissioners their purpose to use revenue bond scrip, if it could be done, in paying the deferred installments of purchase money.

The plaintiff insists that the question of fraud or no fraud in the alleged purchase from the commissioners of the sinking fund is not a question in which the defendants have any concern, and could only be raised by the state in a proceeding to which it was a party. We need not stop to consider this question, because we are of opinion that in no view of the case arising upon this...