Cobban v. Conklin

• Decision Date: 06 October 1913
• Docket Number: 2,236.
• Citation: 208 F. 231
• Parties: COBBAN et al. v. CONKLIN.
• Court: U.S. Court of Appeals — Ninth Circuit

208 F. 231

COBBAN et al. v. CONKLIN.

No. 2,236.

United States Court of Appeals, Ninth Circuit.

October 6, 1913

On September 7, 1905, the appellee brought a suit for the cancellation of certain deeds and powers of attorney which she alleged to be fraudulent and forged and which constituted a cloud upon her title to 3,723 acres of timber lands in Boise county, Idaho. The appellant the Payette Lumber &amp Manufacturing Company held the record title to the lands by a warranty deed executed on May 19, 1903, from the appellant E B. Weirick, trustee, and Weirick deraigned title through warranty deeds made in September, 1901, purporting to be executed by the appellee by the appellant Cobban as her attorney in fact. The court below found upon the evidence that the allegations of fraud and conspiracy charged against the appellants were not sustained but held that the conveyances by Cobban as attorney in fact of the appellee were unauthorized and void, and a decree was entered canceling the powers of attorney under which Cobban made the conveyances and canceling the deeds made thereunder and adjudging that the Payette Lumber & Manufacturing Company which had purchased without actual notice of any infirmity or defect in the conveyances, was entitled to a conveyance from the appellee, upon payment to her of $10,130.38, with interest, but that upon failure to make such payment the title be quieted in the appellee.

The facts disclosed in the record are in brief that in 1900 the appellee owned an undivided one-half interest in 9,600 acres of lands in Inyo and Tulare counties, in the state of California, known in the record as the Monache lands; the other half interest being owned by the estate of Patrick Reddy, deceased. Joseph C. Campbell, of the firm of Campbell Metson & Campbell, was the attorney for the Reddy estate, and he had previously been the attorney for the Conklin estate, through which the appellee derived her interest in the Monache lands. Mr. Campbell was also attorney for John A. Benson, who in that year entered into negotiations for the purchase of the Monache lands. The lands had been included within the Sierra Forest Reserve. The owners of such lands were authorized by law to exchange them for other public lands which were subject to settlement. To make the exchange, the owners were required to execute deeds conveying to the United States their lands in the reservation, to have the deeds recorded in the proper county recorder's office, and thereafter to file in the Land Office the deeds, together with abstracts showing a clear and unincumbered title in the United States, and applications to select other public lands specifically described, and of equal acreage, in lieu of the deeded lands. The appellee, her son, W. E. Conklin, Benson, and Mr. Campbell had a conference with reference to the sale of those lands, at which a verbal agreement was made, all the terms of which are not definitely or positively shown by the evidence but for one thing: It was agreed that the lands should be sold to Benson at the price of $3.80 net per acre. The appellee testified that deeds for the lands were to be executed and placed in escrow and were not to be taken out until the money was paid by Benson, which was to be within 90 days. In this she was corroborated by the testimony of her son. Mr. Campbell testified that the land was to be conveyed to the United States, and that the payment of $3.80 net per acre was to be made through the Anglo-California Bank, upon approval of the lieu selections by the Land Department, and that the titles to the lieu lands were to be approved in the name of the appellee and the Reddy estate; that when so approved Benson would have the right to purchase the same at $3.80 per acre, but that the title was not to pass out of either the Reddy estate or the appellee until the lands were paid for; and that nothing was said about any powers of attorney to sell the lieu lands. Benson testified that it was agreed that powers of attorney should be executed to sell the lieu lands, but his testimony was contradicted by the testimony of all the other persons who were present at the making of the contract, and it was not credited by the court below. It is admitted that Benson was to prepare the necessary deeds which were to be submitted for signature to the appellee through Mr. Campbell. Benson thereafter prepared the papers and sent them from time to time to Mr. Campbell's office to be executed by the representatives of the Reddy estate and the appellee. A messenger from Mr. Campbell's office took them to the residence of the parties who were to sign them. It appears that the appellee examined a few of the papers and, finding them correct, executed all thereof, relying upon the fact that they had come through Mr. Campbell's office. Among the papers so executed were not only conveyances of the Monache lands to the United States but powers of attorney in blank to convey in the name of the grantors the lieu lands that were or might be selected in exchange therefor. The papers when executed were returned to Mr. Campbell's office, and from there Benson in some way obtained possession of them.

Prior to February 19, 1901, a syndicate had been formed of certain persons in Montana to purchase public lands by the use of lieu land scrip. The appellant Cobban was a member of the syndicate, and he acted for the others in purchasing such scrip. The agreement was that after the approval of the selections the lands acquired were to be conveyed to Weirick, as trustee, for the use and benefit of the members of the syndicate. Cobban purchased from Benson the scrip which represented the right of the owners of the Monache lands to make lieu selections. Benson would forward the scrip to a bank with a sight draft attached, and upon the payment thereof there were delivered to Cobban the deeds surrendering the base lands to the United States, the abstracts of title therefor, applications to select lieu lands, powers of attorney to select lieu lands, and irrevocable powers of attorney to convey the same. But all these papers except the original deeds were blank as to the description of the lands to be selected and to be conveyed, and the powers of attorney were blank as to the name of the attorney to whom power was given to select lieu lands and to convey the same. Cobban admitted that he had no dealing with the appellee, that he was never authorized by her to insert his name in any of said powers of attorney, and that Benson never exhibited any authority to him to insert his (Cobban's) name in any of said powers; but he testified that, having received the papers in blank, he assumed the right to insert such things as were necessary to enable him to select and convey lieu lands. The selections of land involved in the present suit were approved by the United States, and the lands were patented in the name of the appellee and in those of the administratrix and the administrator of the Reddy estate, and the same lands were afterwards conveyed by Cobban, as attorney in fact for the patentees, to Weirick, as trustee. Thereafter Weirick and Cobban, acting for the syndicate, gave an option on the lands, which was assigned to the appellant the Payette Lumber & Manufacturing Company, and on May 19, 1903, the lands were conveyed to that company. The appellee was paid by Benson through the office of her attorneys at law $2,750 on account of the conveyance of the Monache land, leaving a large sum due and unpaid, which Benson received from the appellants and appropriated to his own use. In December, 1901, the appellee, having become suspicious of Benson, caused some investigation of the records to be made and found that the Monache lands had been conveyed to the United States by deeds which were of record, and she learned in July, 1902, that powers of attorney were in existence, and her first knowledge that powers of attorney purporting to have been executed by her had been used in Idaho was acquired in October, 1903. She thereupon filed in the office of the county recorder of Boise county, Idaho, a general revocation of all powers of attorney. That revocation was recorded more than five months prior to the execution of the deed to the Payette Lumber & Manufacturing Company.

Richards & Haga and McKeen F. Morrow, all of Boise, Idaho, for appellants.

N. E. Conklin, of Berkeley, Cal., and Wm. B. Davidson, of Boise, Idaho, for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The contention is made that the court below was without jurisdiction of the cause of suit for the reason that the suit is brought to remove a cloud from title, and that such a suit may be maintained in a federal court only when the plaintiff is in possession, or the land is vacant and unoccupied, for the reason that otherwise the plaintiff has an adequate remedy at law, citing Whitehead v. Shattuck, 138 U.S. 146, 11 Sup.Ct. 276, 34 L.Ed. 873, and Lawson v. United States, 207 U.S. 1, 28 Sup.Ct. 15, 52 L.Ed. 65. The rule so invoked was well established before it was expressed in section 723 of the Revised Statutes (U.S. Comp. St. 1901, p. 583), which provides that suits in equity shall not be maintained in either of the courts of the United States in any case where a plain, complete, and adequate remedy at law...