Anderson v. Messenger

• Decision Date: 17 December 1907
• Docket Number: 1,679.
• Citation: 158 F. 250
• Parties: ANDERSON v. MESSENGER.
• Court: U.S. Court of Appeals — Sixth Circuit

158 F. 250

ANDERSON v. MESSENGER.

No. 1,679.

United States Court of Appeals, Sixth Circuit.

December 17, 1907

[Copyrighted Material Omitted]

R. P Cary, C. H. Trimble, and C. A. Thatcher, for plaintiff in error.

H. E King and C. W. Everett, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS District Judge.

This cause came here on a former writ of error, and, upon attentive consideration of the record, we reversed the judgment of the court below. 146 F. 929. We did not direct the judgment to be entered in that court, as we might have done, but on account of certain incidental matters about which the record was not clear, and which might properly affect the judgment which ought to be given, notably certain sales and deeds of the land on assessments for local improvements, we thought it expedient to order a new trial; and a mandate issued accordingly. A second trial has been had, this time before the court and a jury, with the result of a verdict for the defendant under the direction of the court and a judgment for that party. This case is again brought here by the plaintiff for review of the proceedings on that trial. The principal facts are fully stated in our former opinion and need not be now repeated at length. With the exception of those which relate to the assessment and sale of the land for a local improvement, the grading of a street in Toledo, and the deeds issued thereon, the facts exhibited by this record are in all essential particulars the same as those disclosed by the record at the former hearing. We have been invited by counsel for defendant to reconsider the question of the construction of Henry Anderson's will. We must decline to do this. The questions there decided are matters adjudged and have become the law of the case. When the former writ of error was disposed of the questions of law in the case were settled, and we have now no authority to redetermine them. This is the established doctrine which governs the federal courts and is quite generally accepted in other courts. This court has recognized and applied the rule in previous cases. Stoll v. Loving, 120 F. 805, and cases cited at page 806, 57 C.C.A. 173; Western Union Telegraph Co. v. City of Toledo, 121 F. 734, 58 C.C.A. 16. And see, also, Maguire v. Tyler, 17 Wall. 253, 284, 21 L.Ed. 576; Kingsbury v. Buckner, 134 U.S. 650, 670, 10 Sup.Ct. 638, 33 L.Ed. 1047. All the reasons and arguments which might have been urged at the hearing on the former writ of error against any conclusion then made were, by the effect of the decision, overruled. No doubt, if upon a new trial a substantially different state of facts is shown so that another question is presented, the former adjudication does not hold. But that is not the case here, except as above noted. With respect to our decision that the deeds of the executors and trustees of Henry Anderson to Charles Butler were not valid as against the remainderman for the reason among others that they were not delivered during the continuance of the trust with which the executors were charged, a point which is now contested, we add that the conditions on which that decision was based were not altered on the new trial. In the stipulation respecting the facts, it was stated that the deeds were not delivered until about the 1st of May, 1860, at which time the executors were no longer trustees. After the cause had been remanded to the Circuit Court, upon application of the attorneys for the defendant stating that they were mistaken when they made that stipulation, and that the deeds were delivered at an earlier date, the court relieved the defendant from it. But the fact stated in the stipulation in that regard was clearly shown by the evidence in the case. And upon the new trial the evidence that the fact was as stated was so clear and uncontradicted that a finding to the contrary would have been wholly unauthorized. But as we shall see, the court did not find that the deeds in question were delivered earlier than about May 1, 1860.

It is contended by the defendant that the deeds from the trustees under the will to Butler were held in escrow by the Manhattan Bank to be delivered upon the payment by Butler of his debt. But to constitute an escrow there must be a contract, which prevents the grantor from recalling the deed. James v. Vanderheyden, 1 Paige (N.Y.) 385; Cook v. Brown, 34 N.H. 460; Prutzman v. Baker, 30 Wis. 644, 11 Am.Rep. 592. There is no evidence in this record that anything more was done or intended than to leave the deeds with a depositary conveniently near to Butler, so that when he should pay his debt he could take the deeds. For aught that appears they could have been recalled at any time without the violation of any contract on the part of the trustees. To have prevented them there must have been some binding obligation. The self-serving statement by Butler that they were left at the bank in escrow is not evidence that such was the fact. And in his letter of March 19, 1860, to one of the trustees asking for the delivery of the deed he states that he has been to the bank and seen the deed, and that 'the envelope has the indorsement 'the property of Walter Goodman, Peter Anderson, and to be delivered on the order of either of them.''

At the conclusion of the evidence, both the plaintiff and the defendant requested the court to charge the jury peremptorily, each in his own favor. The court refused the request of the plaintiff and granted that of the defendant. We are required by the opinion of the Supreme Court in Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654, to hold that these mutual requests were the equivalent of a withdrawal of the facts from the jury and a submission of them for a finding by the court. And we must presume that the consequence must be the same as if there had been an original stipulation to try the case without a jury. In that case, where the court makes only a general finding, that finding must stand if there was any evidence on which the court could have properly found the facts necessary to support the judgment. But if, though the finding be general, it must necessarily rest upon a fact or facts, the finding of which was not warranted by any evidence in the case, a judgment based on such general finding would be erroneous. One of such facts in the present case would have been that the deeds were delivered at a time when the trustees were authorized to deliver them. The presiding judge did not file any written opinion, and the bill of exceptions does not state the ground of his action. At the hearing we were supplied by counsel for the plaintiff with a copy of the stenographer's notes of the judge's statement of the ground on which his direction was given to the jury. Counsel for the defendant stated that they had also a copy, and no objection was made to the correctness of that furnished by counsel for the plaintiff. The opinion of the court below is not required to be made part of the record, and is sent up only to enable the appellate court to understand the grounds of its decision, and, if its authenticity is shown, that is sufficient. In these circumstances we think we may properly refer to it. Having regard to our former decision, it must have been made to appear on the new trial either that the deeds of the trustees were delivered while they held the office of trustees, or that the plaintiff had been cut off by the assessment proceedings and the deeds to Butler founded thereon. It appears from the stenographer's notes that the court put its direction to the jury upon the sole ground that the plaintiff's action was barred by the statute of limitations, in that he had not asserted his right within 10 years after he had become of age. He reached that conclusion upon the following line of reasoning: He conceded the general rule to be that statutes of limitation for actions in ejectment run only from the time when the right of entry accrues, and that in the case of one having an estate in remainder his right of entry accrues on the cessation of the preceding estate. But he referred to a statute of Ohio which he thought operated in the case at bar to extinguish the life estate before its intended limit and to accelerate the commencement of the estate in remainder. That statute was this:

'If any person who shall be seised of lands for life shall neglect to pay the taxes thereon, so long that such lands shall be sold for the payment of the taxes, and shall not, within one year after such sale, redeem the same, according to law, such person shall forfeit to the person or persons next entitled to such lands in remainder or reversion, all the estate which he or she so neglecting as aforesaid, may have in said lands. ' Rev. St. Ohio, Sec. 2852.

It has the rare quality that it proposes to punish the delinquent taxpayer by forfeiting his estate to another person. The Supreme Court of Ohio holds that this statute is valid (McMillan v. Robbins, 5 Ohio, 28); but that to have effect the sale must be a valid sale, and that a void sale does not work a forfeiture. Estabrook v. Royon, 52 Ohio St. 318, 39 N.E. 808, 32 L.R.A. 805. And this seems a just conclusion if the statute is valid, for it would be an absurdity to punish a man for a neglect to do a thing which he is not legally obliged to do. That which is void is as if it did not exist. But if the sale is a valid sale, the title is thereby forfeited to the purchaser. Or, to speak more precisely, such a sale cuts up by the root all previous titles, and inaugurates a new and absolute title in the purchaser. As the preceding estate as well as the estate in remainder are cut off by the neglect to pay the taxes and the sale and deed therefor, there is nothing to forfeit, and the...