Mansfield v. Excelsior Refinery Co

• Decision Date: 05 May 1890
• Citation: 34 L.Ed. 162,135 U.S. 326,10 S.Ct. 825
• Parties: MANSFIELD v. EXCELSIOR REFINERY CO
• Court: U.S. Supreme Court

135 U.S. 326

10 S.Ct. 825

34 L.Ed. 162

MANSFIELD v. EXCELSIOR REFINERY CO.

May 5, 1890.

Henry B. Mason, for plaintiff in error.

W. E. Blake, for defendant in error.

Mr. Justice HARLAN, after stating the facts in thef oregoing language, delivered the opinion of the court.

This is an action in the nature of ejectment. It was brought by the plaintiff in error, December 24, 1879, to recover from the defendant in error the possession of a tract of land in Henderson county, Ill., containing 10 acres, more or less, and upon which was a distillery. The plea was, not guilty of unlawfully withholding the premises described in the declaration. There were three trials of the case each time by the court, pursuant to a written stipulation of the parties waiving a jury. Upon the first trial there was a judgment for the defendant. At the instance of the plaintiff a new trial was granted, in conformity with a statute of Illinois which provides that, at any time within one year after a judgment, either upon default or verdict, in an action of ejectment, the party against whom it is rendered, his heirs or assigns, shall be entitled, upon the payment of all costs, to have the judgment vacated and a new trial granted; no more, however, than two new trials to be granted to the same party under the statute. Rev. St. Ill. 1845, p. 208, § 30; 1874, p. 447, § 35; 1 Starr & C. Ann. St. 989. The first new trial under this statute is the right of the unsuccessful party, and is not dependent upon the discretion of the court. Vance v. Schuyler, 1 Gilman, 160; Riggs v. Savage, 4 Gil- man, 129; Emmons v. Bishop, 14 Ill. 152; Chamberlain v. McCarty, 63 Ill. 262; Lowe v. Foulke, 103 Ill. 58. These statutory provisions govern the trials of actions of ejectment in the courts of the United States sitting in Illinois. Smelting Co. v. Hall, 106 U. S. 86, 1 Sup. Ct. Rep. 128. At the second trial there was a judgment for the plaintiff. The defendant then took a new trial under the statute; and when the case was last tried the court ruled that, upon all the evidence, the law did not authorize a recovery by the plaintiff, and gave judgment for the defendant. The present writ of error brings up that judgment for review.

The parties entered into a written stipulation as to the principal facts. The main question in the case arises out of a sale by a collector of intera l revenue of the premises in dispute, including the distillery thereon, for taxes due from the distiller.

The facts, so far as it is necessary to state them, may be thus summarized:

On the 20th of September, 1873, the Bank of Chicago was the owner in fee of the premises. It executed to the United States, April 22, 1874, in conformity with the statute of the United States, what is called a 'waiver,' which recited that George E. Hinds intended to carry on the business of distilling and manufacturing high wines in the distillery on these premises, and contained the following provisions: 'And whereas the undersigned, the Bank of Chicago, a corporation organized and existing under the laws of the state of Illinois, of the county of Cook and the state of Illinois, has an interest in the title of said lot of land and distillery and appurtenances, therefore, in order to enable the said George E. Hinds to carry on said business on said lot of land in said distillery, and to comply with the requirements of the eighth section of the act of congress, approved July 20th, A. D. 1868, and in consideration thereof, the said bank does hereby express and give its consent that said distillery and premises may be used by said Hinds for the purpose of distilling spirits, subject to the provisions of law; and the said bank does hereby expressly stipulate that the lien of the United States for taxes and penalties shall have priority of any and all its interest and claims to said distillery and premises, and that, in case of the forfeiture of the distillery premises, or any part thereof, the title of the same shall vest in the United States, discharged from any such claim or interest which the said bank has or may have in and to the same, and with the express understanding that this waiver shall take effect and be in force on and after this date.' This document was recorded, the day succeeding its execution, in the office of the recorder of the county where the land lies.

The bank, on the 10th of July, 1874, executed to Isaac P. Coates a deed or instrument, which was duly recorded on the 30th of March, 1875, conveying various parcels or tracts of land, including the one in controversy, in trust to dispose of the same at public or private sale, and apply the proceeds to the payment of its debts and liabilities. Coates executed, May 3, 1875, under section 3262 of the Revised Statutes, a waiver similar to the one above referred to, and which by its terms was to take effect May 10, 1875. This was also placed on record. By quitclaim deed executed on the same day, May 3, 1875, Coates, as assignee, conveyed the premises in dispute to Elisha H. Turner, of Burlington, Iowa. The consideration recited was $8,500, paid by the grantee. This deed was recorded May 6, 1875, together with the waiver that Coates had executed. Turner, also, on the same day, executed and placed upon record a similar waiver to the United States.

On May 6, 1875, Turner conveyed the premises to George F. Westover, of Chicago, in trust to secure the payment of three promissory notes given by Turner for the price of the premises, all dated May 6, 1875, and payable to the order of Isaac P. Coates, assignee,—one for $1,500, due July 1, 1875; one for $3,000, due May 1, 1876; and one for $3,000, due May 1, 1877,—each note drawing interest at the rate of 8 per cent. per annum until due, and 10 per cent. after maturity. This deed provided, among other things, for a sale by the trustee upon default by Turner in the payment of the notes, or any part thereof, or of the interest accruing thereon, and for a conveyance to the purchaser. It gave the trustee power to adjourn the seal from time to time, at discretion, and constituted him attorney for the grantor to execute and deliver deeds to the purchaser or purchasers, applying the proceeds to the payment of the notes, and for other purposes specified, and reconveying to the grantor, after the objects of the trust were accomplished, such part of the premises as remi ned unsold. This deed was recorded the day of its execution, and at the same time with the deed from Coates to Turner.

In conformity with the terms of the trust-deed, Westover, on the 1st day of September, 1876, advertised the premises to be sold at public vendue on the 7th day of October, 1876, to the highest bidder for cash, together with all the right, title, benefit, and equity of redemption therein of Turner, his heirs and assigns. The advertisement stated that the sale was because of default in the payment of the first two above-described notes of Turner to Coates, and of the interest due thereon, and because of the application by the legal holders of the notes to the trustee to sell and dispose of the premises under the authority conferred by the trust-deed. A sale was made by the trustee on the day and at the place named in the notice.

By quitclaim deed dated October 9, 1876, and duly acknowledged the next day, Westover conveyed the premises to Coates as purchaser at the trustee's sale. The deed described the default on account of which the sale was made as having occurred 'in the payment of the second of said notes, and the interest on the second and third notes,' and stated that the premises were sold under the advertisement on the day and year, and at the place mentioned, and that Coates became the purchaser. This deed was duly acknowledged on the 10th day of October, 1876, but was not filed for record, and recorded, until December 22, 1879. By quitclaim deed dated December 18, 1879, acknowledged the succeeding day, and filed for record December 22, 1879, Coates and wife conveyed the premises to the plaintiff, Howard Mansfield.

The stipulation between the parties states that 'December 16, 1876, the said real estate in controversy was seized, and afterwards a sale made by the United States collector of internal revenue for the fourth district of Illinois, for the non-pay- ment of taxes and assessment of internal revenue against George E. Hinds, a distiller, operating under a lease expiring May 1, 1877, the distillery on the said property in controversy, sufficient goods, chattels, or other effects to satisfy such taxes and assessments not having been found by said collector;' also, 'that George F. Westover and Isaac P. Coates received no notice of such seizure and sale prior to said sale, and only knew of such seizure and sale by reports long after such seizure and sale occurred.' The collector's advertisement was on December 21, 1876, and was for the sale, on the 10th of January, 1877, of 'the property generally known as the 'Sagetown' or 'Turner Distillery,' lately operated by George E. Hinds, consisting of 10 acres, more or less, with the distillery buildings thereon,' etc. The report of that sale shows that Albert W. Parsons, of Burlington, Iowa, became the purchaser of the property sold by the collector at the price of $2,240, the amount of the assessments, liabilities, and costs claimed by the government. The property not having been redeemed within the time prescribed by the laws of Illinois, and T. W. Barhydt, trustee for the Merchants' National Bank of Burlington, Iowa, having become the owner, by assignment, of the certificate of purchase given to Parsons, the collector, November 4, 1878, made a deed to Barhydt, trustee, conveying all the right, title, and interest of the United States. That deed was acknowledged November 14, 1878, and recorded December 22, 1879. The defendant claims title under the collector's sale and deed. It also claims under a quitclaim deed executed to it by Elisha H. Turner and wife, of date ...