Larson v. First National Bank of Pender
| Decision Date | 03 December 1902 |
| Docket Number | 9,974 |
| Parties | SWAN J. LARSON, REVIVED IN THE NAME OF LOUISA LARSON, ADMINISTRATRIX, v. FIRST NATIONAL BANK OF PENDER |
| Court | Nebraska Supreme Court |
ERROR from the district court for Thurston county. Rehearing of case reported in 62 Neb. 303. Action upon a promissory note given for the lease of certain Indian lands allotted under the act of congress of February 8, 1887. Plea that the note was void under the statute and, ergo, there could be no recovery even by an innocent holder. Tried below before EVANS, J. Peremptory instruction for plaintiff and judgment accordingly. Former judgment of reversal adhered to.
Reversed.
Robert G. Strong and Daniel H. Sullivan, for plaintiff in error.
Guy T Graves, Mell. C. Jay, Almon C. Abbott, Curtis L. Day and Waldo E. Whitcomb, contra.
POUND C. BARNES and OLDHAM, CC., concur.
This is a rehearing. The former opinion has been criticized upon three grounds: That the defendant, plaintiff in error, had not properly pleaded the illegality of the note in suit; that the court overlooked the act of congress of February 28 1891, relating to the leasing of Indian lands; and that the decision is contrary to two prior cases, Nissen v. Turner, 50 Neb. 272, 69 N.W. 778, and Iowa Savings Bank v. Frink, [*] 1 Neb. Unoff. 14, neither of which was referred to. We do not think any of these criticisms well taken.
The first point is that the answer, in setting up the illegality of the note sued on, does not negative the exceptions created by the act of 1891, and goes no further than to allege a lease in contravention of the act of 1887. But the act of 1891 [**] is amendatory only. The former act furnishes the general rule, and the latter merely authorizes leases under certain special circumstances, and with certain special safeguards. The pleader states fully and explicitly that the note in suit was part of a contract of leasing, in contravention of section 5 of the act of 1887. In addition, he sets forth that the Indians who purported to make the lease in question "had no right or authority to enter into any written contract of whatever kind or nature for the alienation, incumbrance, or leasing of the real estate allotted to them as aforesaid." This would seem to be a sufficient allegation that the case was not within the exception created by the act of 1891. But, in any event, the defendant was not required to go further than set out the facts showing a prima-facie case of illegality. A pleader is not required to anticipate matter in avoidance of his allegations. Jones v. United States Mutual Accident Ass'n, 92 Iowa 652, 61 N.W. 485; Cooledge v. Continental Ins. Co., 67 Vt. 14, 30 A. 798; Blasingame v. Home Ins. Co., 75 Cal. 633, 17 P. 925; AEtna Ins. Co. v. McLead, 57 Kan. 95, 45 P. 73; Bank of River Falls v. German-American Ins. Co., 72 Wis. 535, 40 N.W. 506. As, in the cases cited, a plaintiff suing upon a policy was not required to allege that the loss was not produced by any of the causes for which it was provided the insurer should not be liable, or that it was not produced by any of the means specially excepted in the policy, so here, in alleging that the note was within the purview of the act of congress, the defendant was not bound to negative expressly in advance every exception contained in the statutes. Nor do we think that the former opinion ignores or in any way fails to give effect to the later statute. That statute was not involved, and it did not become necessary for the court to refer to it. Neither the pleadings nor the proofs raise any questions under that act. The leases authorized under special circumstances, upon showing to the secretary of the interior, are to be made "upon such terms, regulations and conditions as shall be prescribed" by that officer. Where a statute authorizes executive officers to make general rules for the conduct of public business, and such rules are duly made and published, the courts will take judicial notice of them. Caha v. United States, 152 U.S. 211, 38 L.Ed. 415, 14 S.Ct. 513; Dominici v. United States, 72 F. 46; Low v. Hanson, 72 Me. 104; United States v. Williams, 6 Mont. 379, 12 P. 851. Turning to the printed regulations of the Indian office, we find at once that the instruments in question are in no sense such as are prescribed and required, and were not intended to be of that nature. There is nothing before the court to call for any application of the amendatory statute.
The prior decisions of this court referred to, do not purport to pass upon the question now before us. No suggestion is made in the opinion in either case as to that question. Moreover we have examined the briefs upon which those causes were submitted, and find that the subject was not brought to the court's attention. All that could be claimed, is that the point might have been raised and, if raised, would have been decisive. Had the judgments been reversed, the court might have been forced to take the matter under consideration, for judgments will not be reversed if right, even though the points of law upon which their validity depends are not...
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