Morgan v. Johnson

• Decision Date: 28 January 1901
• Docket Number: 1,381.
• Parties: MORGAN et al. v. JOHNSON, Mayor.
• Court: U.S. Court of Appeals — Eighth Circuit

106 F. 452

MORGAN et al. v. JOHNSON, Mayor.

No. 1,381.

United States Court of Appeals, Eighth Circuit.

January 28, 1901

This was a suit in ejectment instituted in 1892 by Platt Rogers as mayor of the city of Denver, against Samuel B. Morgan and some 40 other persons grantees of Morgan, for the possession of the S. 1/2 of the N.E. 1/4 of the S.E. 1/4 of section 2, township 4, range 68 W., in Arapahoe county, Colo. In the progress of the cause Henry V. Johnson, present mayor of Denver, and defendant in error herein, was substituted for Platt Rogers, and, by stipulation, the answer of Samuel B. Morgan was made to stand as the answer of all other defendants. On the death of Samuel B. Morgan, Ellen Theresa Morgan, the present leading defendant, and the other heirs at law of Samuel B. Morgan now plaintiffs in error, were substituted as defendants in his place and stead. The cause was first tried on demurrer to the answer, and resulted in a judgment in favor of the plaintiff for the possession of the land in controversy. A writ of error was sued out, and the cause brought to this court for review. On March 1, 1897, the judgment of the trial court was reversed, and the cause remanded for further proceedings in accordance with the opinion rendered. Morgan v. Rogers, 25 C.C.A. 97, 79 F. 577. After the cause was so remanded, plaintiff filed a replication to the answer, and afterwards filed an amended replication, upon which the cause went to trial. The facts appear sufficiently stated in the former opinion of this court, and the conclusion there reached was that by virtue of the acts of congress and the patent of November 15, 1873, referred to in the opinion, the city of Denver acquired an unconditional title in fee simple absolute to a tract of land, including that now in controversy; and that, notwithstanding the act of congress in question authorized the city of Denver to make an entry of the land 'to be held and used as a burial place for the said city and vicinity,' the patent issued granted to the city such title in fee simple, without condition, as enabled the city to sell and dispose of the land unconditionally, for any purpose deemed by it desirable. The defendants below claimed in their answer that, the city of Denver, having such unconditional fee, on February 6, 1874, conveyed the land in question to Joseph P. Machebeuf, and that on April 25, 1887, Machebeuf conveyed the same to Samuel B. Morgan, the defendants' grantor, and this court held in its former opinion that, if such were the facts, the title to the lands in question was well vested in Morgan. The amended replication filed by plaintiff joined issue on certain averments of the answer, relating to assessments of the land in question for city taxes, and the payment of such taxes by Morgan after he acquired title in 1887, and affirmatively pleads that the deed made by the mayor to Machebeuf, on February 6, 1874, was not made or executed pursuant to, or in conformity with, any vote of the city council of the city of Denver. The balance of the replication, when properly construed, questions the legal sufficiency of the other facts set up in the answer, but does not deny the facts as stated. At the trial below the plaintiff offered in evidence the patent of the United States to Joseph E. Bates, as mayor of Denver, of date November 15, 1873, and rested. The defendants, after an unavailing motion for an instructed verdict, offered in evidence the deed of the city of Denver, by Francis M. Case, mayor, to Joseph P. Machebeuf, of date February 6, 1874. Plaintiff objected to the introduction of this deed, and assigned the following reasons therefor: 'That by reason of the act of congress of the United States of date May 21, 1872, entitled 'An act to enable the city of Denver to purchase certain lands in Colorado for cemetery purposes,' the city of Denver and its mayor were without power and authority to convey the lands which were acquired by virtue of the act;' and the further reason 'that no ordinance or resolution of the city council of the city of Denver authorizing the conveyance has been shown'; and, further, that 'the supposed deed does not conform to the recommendation of the committee to which the matter was sent, and whose report was adopted.' For the purpose of a ruling on these objections, it was admitted by counsel that a certain report of proceedings before the city council, as set forth in the answer, and further stated in the admission, was correct. These papers will be referred to later in the opinion. The trial court disapproved of the first and second grounds of objection, but sustained the third, namely, that the deed offered did not conform to the recommendation of the committee to which the matter was sent, and whose report was adopted, and excluded the deed. Other deeds were offered in evidence by the defendants conveying Machebeuf's title to Samuel B. Morgan. Plaintiff's counsel objected to these deeds, on the sole ground that Machebeuf was not shown to have title. The trial court sustained these objections, and due exceptions were saved by the defendants to such rulings. This statement reduces the case, in its broadest aspect, irrespective of the reasons given by the court below for its actions, to the following questions: First, whether the city of Denver, in view of the supposed condition alleged to have been created by the use of the words in the act of 1872, 'to be held and used as a burial place for the said city and vicinity,' had power to convey the lands in question without regard to the condition; second, whether there was any resolution or other authority granted by the city council to sell the lands in question to Machebeuf; and, third, whether the deed actually made to Machebeuf conformed to the resolution or authority granted, if any, by the city council.

Willard Teller (Harper M. Orahood, on the brief), for plaintiffs in error.

Tom Herrington (J. M. Ellis, S. L. Carpenter, and Guy Le Roy Stevick, on the brief), for defendant in error.

Before CALDWELL and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS District Judge, after stating the case as above, .

The decision of this court rendered on the first writ of error (Morgan v. Rogers, supra) is the law of this case. That decision was that the act of congress of May 21, 1872, did not operate to annex any condition to the grant authorized by it, and that the patent to Bates, as mayor, in trust for the city of Denver, and to his successors and assigns, forever, created only a naked, passive trust, under which the entire beneficial use, possession, and control vested at once and absolutely in the city of Denver. That decision satisfactorily and conclusively settled the question that the city of Denver had the right and power to convey the land in question to Machebeuf, and, notwithstanding the elaborate reargument of this question by counsel, no further consideration will now be given to it. Balch v. Haas, 20 C.C.A. 151, 73 F. 974, 36 U.S.App. 693, and cases there cited.

The only remaining question is whether the city of Denver did convey the land to Machebeuf. That it recognized a highly meritorious and equitable claim of Machebeuf; that it received the agreed consideration from him therefor; that it undertook to execute a deed to perform its equitable, as well as legal, obligation; that it permitted the Bishop and his grantees to take possession of the land, and exercise rights of ownership and control, for a period of 18 years or more before it questioned their title,-- cannot be gainsaid or questioned. Under such circumstances, an insurmountable legal necessity must be found by this court to induce it to disturb the defendant's possession. What is claimed to be that necessity? Substantially stated, it is this: that there was no resolution of the city council authorizing the conveyance to Machebeuf, and that the deed, as made, fails to conform to the resolution claimed to have been adopted.

It appears that on October 28, 1872, Joseph P. Machebeuf, who as stated by the answer and not denied in the replication, was the bishop of the Catholic Church for the diocese of Denver, presented a petition to the mayor and common council of that city in words and figures as follows: 'To the Honorable the Mayor and Common Council of the City of Denver: Your petitioner, Joseph P. Machebeuf, Catholic bishop of Denver, respectfully represents to your honorable body, on his own behalf and on that of the Catholic Church of Denver and Arapahoe county, that some time in the year 1863 he purchased, for the sum of $200, from one John I. Walley, the following described piece of land, situate in said county of Arapahoe, viz.: The N.E. 1/4 of the S.E. 1/4 of Sec. 2, T. 4 S., R. 68 W.; and that from the time of said purchase and since hitherto said piece of land has been used and still is used by the members of said Catholic Church of Denver and Arapahoe county as a burial place, and that a great number of their dead are therein buried. And your petitioner further represents that having been informed that the city of Denver has procured from the government of the U.S. a patent of a certain piece of land, including the piece hereinbefore described, to be used as a cemetery, he fears some measures may be taken by your honorable body to lay out and arrange the entire piece of land conveyed as aforesaid to the city of Denver, whereby the disposition and arrangement of said piece hereinbefore described might be greatly disturbed and interfered with, to the detriment of the said members of the Catholic Church in regard to the...