United States v. Payette Lumber & Mfg. Co.

• Decision Date: 26 July 1912
• Docket Number: Consolidated as 60.,49,255
• Parties: UNITED STATES v. PAYETTE LUMBER & MFG. CO. et al. CONKLIN v. COBBAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F. 881

UNITED STATES v. PAYETTE LUMBER & MFG. CO. et al.

CONKLIN v. COBBAN et al.

Nos. 49, 255, Consolidated as No. 60.

United States District Court, D. Idaho, Southern Division.

July 26, 1912

C. H Lingenfelter, U.S. Atty., and S. L. Tipton, Asst. U.S. Atty.

N. E Conklin and W. B. Davidson, for complainant Conklin.

Richards & Haga and McBride & McBride, for defendants Cobban and Weirick.

Cavanah & Blake, for defendant Payette Lumber & Mfg. Co.

A. A Fraser, for defendant Campbell.

DIETRICH District Judge.

The United States and Mollie Conklin bring separate actions exhibiting the same general controversy, and involving the same general state of facts. The suits were consolidated for trial, and have now been submitted together. There is great similarity in the averments of the two bills, but the prayers are wholly different; the demand being, in the one case, that the United States be adjudged the true owner of 3,767 acres of timber lands situate in Boise county, Idaho, and in the other that Mollie Conklin be decreed an undivided half interest in the same land. A similar bill relating to California lands, but involving the same transactions, was exhibited by the government in the United States Circuit Court for the Northern District of California, which, upon demurrer, was dismissed for want of equity, and, upon appeal to the Circuit Court of Appeals, the judgment of the lower court was affirmed. United States v. Conklin (C.C.) 169 F. 177; Id., 177 F. 55, 100 C.C.A. 473. The facts here disclosed by the evidence are, to say the least, no more favorable to the government than were the averments there held to be insufficient, and upon the authority of that case its bill must be dismissed.

The parties defendant in the remaining suit are R. M. Cobban, E. B. Weirick, and the Payette Lumber & Manufacturing Company, a corporation. Title to the lands referred to was conveyed jointly to the plaintiff and the estate of Patrick Reddy, deceased, by the United States, whereupon the defendant Cobban, assuming to act under powers of attorney purporting to have been executed in his favor by the plaintiff and the legal representatives of the Reddy estate, transferred the same to Weirick, as trustee, who, in turn, transferred the same to the defendant corporation. The plaintiff prays that these powers of attorney be held to be void and of no effect, and that she be adjudged to be the owner of an undivided one-half interest in the lands, and for general relief. The salient facts will now be stated.

Some time prior to the year 1900 Alvah Russell Conklin, the plaintiff's husband, acquired title to lands aggregating approximately 9,600 acres, situate in Inyo and Tulare counties, Cal., and referred to in the record as the 'Monache lands.' He conveyed an undivided one-half interest therein to Patrick Reddy, his brother-in-law, who was a member of the law firm of Reddy, Campbell & Metson, of San Francisco. Subsequently, and before the year 1900, the lands were included within the Sierra forest reserve. Under a general act of Congress, the owners of such lands, by complying with certain conditions, were authorized to exchange them for other public lands subject to settlement. To make such exchange, it was requisite that the owner execute a deed conveying the reservation lands, sometimes referred to as the 'base,' to the United States, and have such deed recorded in the proper county recorder's office, and thereafter file the same, together with an abstract showing a clear and unincumbered title in the United States, in the land office, together with an application to select other specifically described land in lieu thereof; such other land being generally referred to as 'lieu' land.

Both Conklin and Reddy died prior to the transactions in 1900 out of which this litigation grows, and their estates were in the process of administration. For some years prior to the death of Reddy, J. C. Campbell was his partner, and upon his death the firm continued as Campbell, Metson & Campbell, and either he personally or his firm acted as counsel for both the Reddy and the Conklin estates. John A. Benson, residing at San Francisco, appears to have been a land agent or attorney, and to have been engaged on a comparatively large scale in dealing in land scrip, and in securing title to public lands. He had discussed with Reddy the matter of purchasing his (Reddy's) interest in these lands, but the negotiations were cut short by the latter's death. In the early part of the summer of 1900 both the plaintiff Mollie Conklin, who had in the meantime succeeded to the interest of her deceased husband, and the representatives of the Reddy estate, which was still in process of administration, being desirous of disposing of the Monache lands, a meeting of the several parties with Benson was arranged for at the office of J. C. Campbell. As to the question whether or not there was more than one meeting at which the plaintiff was present, and as to just what occurred, or was finally agreed upon, the evidence is highly conflicting. There seems, however, to be no doubt that at one meeting, at which an understanding was practically arrived at, the plaintiff and her son, who was a young lawyer, Benson, Campbell, and Reddy's widow, who was also one of the representatives of the Reddy estate, were present. Putting aside for the moment the disputed details, the understanding then reached was that the owners were to dispose of the Monache lands for the agreed price of $3.80 per acre. Plaintiff's version is that this meeting took place in the month of August, 1900, and that the agreement was that Benson should purchase the lands at the price named, such purchase to be completed and the full amount of the purchase price paid within 90 days. Deeds were to be executed and placed in escrow, with instructions to deliver to Benson upon the payment of the purchase price. Upon the other hand, Benson's testimony is to the effect that it was not understood that he was to purchase the base land outright, but that it was to be exchanged for other land, as provided by law, and that he was to make payment only when the titles were approved by the proper government officials. The truth probably is that, upon the one side, the plaintiff, not being familiar with the procedure by which base lands are exchanged for lieu lands, gave little attention to, and did not understand, such explanations as may have been made by Benson, and went away with the impression only that Benson was to purchase, and that she was to deed to him directly, her interest in the base lands. Upon the other hand, Benson, being advised of the conditions under which base lands could be handled and exchanged, and being familiar with the procedure, understood that the owners would execute, and, in due time, deliver such papers as were necessary to make the exchange and transfer. The plaintiff wanted to sell the lands, and was interested particularly in procuring the desired price. Being concerned only with the ultimate result, she probably gave very little thought to the means by which that result would be reached. In view of the entire record, it is wholly improbable, and I am unable to conclude, that Benson agreed, or that he understood, that he would directly purchase the base lands, or that deeds from the then owners were to convey the title to him personally.

At this point it should also be stated that the record discloses a direct conflict upon the question as to whether or not, in the negotiations leading up to the agreement referred to, and in making the agreement, and in the subsequent transactions still to be related, Campbell was acting in the capacity of attorney for the plaintiff. It is her contention that he was so acting, but by him such relation is emphatically disclaimed. As already stated, he or his firm had been acting for her as the representative of the Conklin estate, and he was at the time the attorney for the representatives of the Reddy estate, but there is no positive or strong circumstantial evidence tending to support the plaintiff's contention that he or his firm consciously acted in such capacity for her personally in this or any other matter. In view of the fact that Campbell had been associated with her brother-in-law, Reddy, and that her son had studied law in his office, and that he, Campbell, or his firm, had, up to the very time of the meeting, acted as counsel for the estate of her deceased husband, she doubtless entertained great confidence in him, and it is entirely probable that she expected him to protect her interests, without giving any thought to the question whether or not he had been expressly retained for that purpose. Upon the other hand, from the entire record, I have concluded that Campbell himself did not understand that he was, in a technical sense, acting as her attorney. While at times he appeared to render services to the plaintiff in connection with the matter, it is to be borne in mind that he was all the time attorney for the Reddy estate, and that the Reddy estate owned an undivided one-half interest in the property, and the interests of the estate as against Benson were therefore identical with those of the plaintiff. In other words, in properly caring for and protecting the interests of the Reddy estate, Campbell could not well avoid the appearance of also protecting the interests of the plaintiff.

It seems to have been understood that, upon being furnished with the necessary data, Benson would, at his own expense, procure abstracts of title, and draft the necessary instruments to effect the exchange, and a short time after the meeting referred to he caused to be sent to Campbell's office numerous papers, with the request that they be executed. At this point...