A. & S. owned a tract of land in a township numbered 5 which
was within the limits of the Union Pacific Railroad grants and was
acquired from that company after the execution of its mortgages,
its deed reserving to
Page 168 U. S. 574
the company the exclusive right to prospect for coal and other
minerals on the lands. A. & S. contracted to sell this tract to
R. & H., representing that they had a good and indefeasible
estate in fee simple in it, and agreeing to furnish an abstract of
title. R. & H. agreed to buy the tract for a sum named, to be
paid partly in cash and partly by notes secured by mortgage on the
property. The deed, mortgage, notes, and money payments were
accordingly made and exchanged in supposed compliance with the
agreement, but no abstract of title was furnished. In the deed and
mortgage, the land was by mistake of the scrivener described as
township No. 6 instead of township No. 5. A. & S. had no
interest in or title to land in township No. 6. No patent was ever
issued by the government for land in township No. 5. R. & H.,
on learning the facts, demanded the return of the money paid, and
of the notes, claiming to rescind the contract of sale. A. & S.
tendered a deed of the land in township No. 5. Subsequent to the
tender, the Union Pacific Company released the land from claim
under the coal reservation, but not as to other minerals.
Held that R. & H. were not bound to accept the deed
tendered, and were entitled to have the contract rescinded, and to
receive back the money paid by them.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By a final decree of the District Court of the Fourth Judicial
District of the Territory of Utah, a contract for the sale of
certain land, made March 27, 1890, between L. B. Adams and W. N.
Shilling, on one side, and Edward A. Reed and H. H. Henderson, on
the other side, and three promissory notes given by the purchasers,
together with a mortgage executed by them to secure the payment of
such notes, were adjudged to be null and void.
It was also adjudged that Henderson and Burgitt (the latter
having become guardian of the person and estate of Reed, who was
incapable of conducting his own affairs) recover of Adams and
Shilling the amount paid by Henderson
Page 168 U. S. 575
and Reed on the agreed price of the land purchased by them from
Adams and Shilling.
The decree was affirmed by the supreme court of the territory,
and the case is here for review upon the appeal of Adams and
Shilling.
The material facts out of which the case arises, and which are
embodied in a report of a special master in chancery, are as
follows:
In March, 1890, Shilling and Adams, in response to an inquiry
made by Reed and Henderson, stated that they owned and had a good,
indefeasible title in fee simple to 440 acres of land lying a few
miles west of Ogden City, Weber County, Utah Territory.
The lands referred to-as as understood by all parties at the
time -- were the east one half of section nine, township
five north, of range two west of the Salt Lake meridian,
the south one half of the southwest quarter of said section, and
the northeast quarter of the southwest quarter of that section.
Reed and Henderson had not at that time seen the land, and had
no knowledge as to the title. But Shilling and Adams promised that
they would furnish an abstract of title. Reed and Henderson,
relying and acting upon the representation of Adams and Shilling
that they had a good and indefeasible estate in fee simple to the
lands inquired about, without investigation the title, purchased an
undivided two-thirds interest in the 440 acres for the sum of
$7,333.32, of which one-third was to be paid, and was paid, in
cash, and time was given for the payment of the balance, with
interest. They would not have made the purchase if they had not
believed the above representation as to title to be true.
On the 27th of March, 1890, Reed and Henderson received from
Adams and Shilling a deed of general warranty for the following
land: an undivided two-thirds of the east one half of section nine,
township
six north, of range two west of the Salt Lake
meridian, of the south one half of the southwest quarter of that
section, and of the northeast quarter of the southwest quarter of
the same section, in Weber County, Utah.
The land contracted for, it will be observed, was in
township
Page 168 U. S. 576
five, while the land actually conveyed was in township
six. But the grantors intended by the above deed to convey
an undivided two-thirds of the land in township five, and the
grantees supposed that the estate embraced by the conveyance was
that which they intended to purchase. But, by mistake of the
scrivener, the premises conveyed were described as lying in
township six.
At the time the above deed was received, the grantees, in
addition to the cash payment of one-third of the purchase price,
executed two promissory notes, payable to the grantors, for the sum
of $2,444.45, each bearing eight percent interest, payable one year
and six months from March 26, 1890, and secured by a mortgage on
the premises. But in that mortgage, by the mistake of the scrivener
who prepared it, the land was described as lying in township six.
The mortgage was duly signed, witnessed, and acknowledged, Reed and
Henderson at the time fully believing and acting upon the
representation of the grantors as to title, and paying to the
grantors the interest on said notes down to and including September
26, 1890, which amounted to $180. They also signed a promissory
note of June 26, 1891, payable to the Utah National Bank of Ogden,
Utah, for the sum of $391.10, as the interest on the above notes,
which were held by the bank. The note last named was brought into
court, and, when the final decree was rendered, it was still in
court for the defendants.
The plaintiffs, Shilling and Adams, failed to furnish an
abstract of title, and Reed and Henderson, having an opportunity to
sell the land in township five, and assuming that that was the land
conveyed to and mortgaged back by themselves, procured an abstract
on the 3d day of September, 1891.
The above lands in township five are within ten miles of the
line of the Union Pacific Railroad, and within the limits of the
lands granted to that company by the act of Congress of July 1,
1862, c. 120, 12 Stat. 489. They lie in a valley at the base of the
Wasatch Mountains, and had theretofore been used and cultivated as
agricultural lands. But no exploration or examination has ever been
made on them for coal or minerals of any kind or description.
Page 168 U. S. 577
As bearing on the condition of the title to the land in township
five, it may be stated that the Union Pacific Railroad Company
twice mortgaged all the lands granted to it by the act of Congress
of July 1, 1862, and the act amendatory thereof approved July 2,
1864, 12 Stat. 489, c. 120; 13 Stat. 356, c. 216 -- one of the
mortgages being dated April 16, 1867, and the other, December 18,
1873.
Adams and Shilling acquired, by proper conveyance made in 1889,
all the interest of the Union Pacific Railroad Company in the lands
in township five sold by them to Reed and Henderson, and freed from
the liens created by the above mortgages, except that the deed
received by them from that company contained a clause reserving
"to the said Union Pacific Railroad Company the exclusive right
to prospect for coal and other minerals within and underlying said
lands, and to mine for and remove the same if found, and for this
purpose it shall have the right of way over and across said lands,
a space necessary for the conduct of said business thereon, without
charge or liability for damage therefor."
No patent has ever issued from the government for the land in
township five.
Parties applied to Reed and Henderson for the purchase of that
land, but they declined and refused to buy, and a sale by them was
defeated.
Within two days of the 3d of September, 1891, and before the
bringing of this action, Reed and Henderson ascertained that the
plaintiffs were not the owners of, and had no title to, the land
which the deed from Adams and Shilling purported to convey to them
-- that is, to the land in township six.
On or about the 4th day of September, 1891, Reed and Henderson
notified Adams and Shilling that they rescinded the contract of
sale, and demanded not only the return to them of the moneys paid
on account of their purchase, with interest, but the surrender of
the two notes of $2,444.45 each, bearing date March 27, 1890, and
the note for $391.10, dated June 26, 1891. All of those notes had
been returned by the bank to Adams and Shilling.
After Reed and Henderson notified Adams and Shilling of
Page 168 U. S. 578
the rescission of the contract of sale, and before the bringing
of this suit, Adams and Shilling tendered another deed -- a special
warranty deed, containing a proper description of the land intended
to be sold by them to Reed and Henderson. The latter refused to
accept that deed, saying that they rescinded the contract of sale,
that Adams and Shilling did not have a good title to the land
described therein, and urging the objection also that the deed was
not one of general warranty. The deed so tendered was dated
September 29, 1891.
At the time Adams and Shilling tendered the deed of special
warranty, the title to the land therein described was encumbered by
the above reservation, in the deed of 1889, made by the Union
Pacific Railroad Company to Adams and Shilling, of an exclusive
right in the Union Pacific Railroad Company to mine, under said
land, for coal and other minerals, and to remove the same.
Subsequently, the Union Pacific Railroad Company executed and
delivered to Reed and Henderson a quitclaim deed dated November 2,
1891, and which was acknowledged November 17, 1891, and duly
recorded on the 8th of January, 1892. This deed released the land
in township five from the claim of that company under the coal
reservation contained in the deed of 1889; but it did not release
the right of that company to prospect for and mine "other minerals"
under that land.
On the 28th of March, 1890, Reed and Henderson let, leased, and
demised unto Adams and Shilling, who were occupying the land, for
the term of six months from that date, the land in township five.
But neither Henderson nor Reed ever actually occupied any part of
it.
Neither of the notes described in the mortgage of March 27,
1890, made by Reed and Henderson, has been paid. Adams and Shilling
are still the owners and holders of them, as well as of the
mortgage. The amount unpaid on those notes is the principal of each
one, with interest from September 26, 1890 at the rate of eight
percent per annum.
The relief sought by the suit was a decree reforming the
mortgage given by Reed and Henderson so as to correctly
Page 168 U. S. 579
describe the land in township five, and then a sale thereof in
satisfaction of the costs of the action, and the balance of the
purchase money, with a personal decree for any deficiency in
purchase price that may be found to exist.
The defendants controverted the right of the plaintiffs to any
decree, and, by cross-complaint, asked the cancellation of the
above mortgage and notes, and a judgment for the amount they had
paid to the plaintiffs, with interest.
The decree rendered was in accordance with the prayer of the
cross-complaint. In legal effect, it was a decree rescinding the
contract between the parties because of the inability of the
plaintiffs to make a sufficient title to the lands sold by
them.
Under the facts stated, the case is within a very narrow
compass. It is found, and the plaintiffs and defendants agree, that
the former intended to sell, and the latter intended to buy, the
land in township five. By mistake, the vendors conveyed land in
another township which they did not intend to sell, to which they
had no title, and which the defendants had no thought of buying,
and by mistake the grantees, in order to secure the purchase price
for the land they in fact purchased, mortgaged back to the
plaintiffs the land in township six which the latter had assumed to
convey to them. That a court of equity has power to correct this
mutual mistake, make the instruments given in execution of the
contract conform to the real intention of the parties as
established by clear and convincing proof, and hold the parties to
their actual agreement, cannot be doubted.
Snell v. Assurance
Co., 98 U. S. 85,
98 U. S. 88-89;
Simpson v. Vaughn, 2 Atk. 33;
Henkel v. Royal
Exchange, 1 Vesey Sen. 317;
Gillespie v. Moon, 2
Johns.Ch. 585;
Keisselback v. Livingston, 4 Johns.Ch. 144,
148;
Inskoe v. Proctor, 6 T.B.Mon. 311, 316;
Hendrickson v. Ivins, 1 N.J.Eq. 562, 568;
Wesley v.
Thomas, 6 Har. & J. 24, 26;
Newson v. Buffertoor,
1 Dev.Eq. 383, 384;
State v. George, 4 Ired.Eq. 430, 432;
Barley v. Barley, 8 Humph. 223;
Cloption v.
Martin, 11 Ala. 187. But before the mortgage executed by the
defendants can be reformed so as to properly describe the land
which the plaintiffs intended to sell, and which the defendants
intended to buy and mortgage
Page 168 U. S. 580
back, it must appear that the plaintiffs have such title as they
represented themselves to have when selling the land. A good and
indefeasible title in fee imports such ownership of the lands as
enables the owner to exercise absolute and exclusive control of it
as against all others.
That the plaintiffs have no such title is too clear to admit of
dispute. They hold under the Union Pacific Railroad Company. They
accepted a conveyance from that company which expressly reserved,
in its favor, and without limit of time, an exclusive right, not
only "to prospect for coal and other minerals" under the land in
question, and "to mine for and remove the same if found," but "a
right of way over and across said lands, a space necessary for the
conduct of said business thereon, without charge or liability for
damage therefor." It does not appear that the railroad company is
under any legal obligation to surrender or waive this reservation.
The plaintiffs cannot compel it to do so. It is true that the
reservation was subsequently released or withdrawn so far as it
related to coal, but it is in full force as to other minerals. So
that the plaintiffs, in effect, ask that, instead of a good and
indefeasible title in fee simple, the defendants shall take and pay
for land encumbered with the right of the railroad company, for all
time, to pass over and across it for the purpose of prospecting for
and mining minerals other than coal. A court of equity could not
compel the defendants to take and pay for land thus encumbered
without making for the parties a contract which they did not choose
to make for themselves. "Equity," this Court said in
Hunt v.
Ronsmainer, 8 Wheat. 1,
21 U. S. 14,
"may compel parties to perform their agreements, when fairly
entered into, according to their terms; but it has no power to make
agreements for parties, and then compel them to execute the same.
The former is a legitimate branch of its jurisdiction, and in its
exercise is highly beneficial to society. The latter is without its
authority, and the exercise of it would be not only a usurpation of
power, but would be highly mischievous in its consequences."
Reference was made in argument to the fact that no patent has
ever been issued to the railroad company for the land in
Page 168 U. S. 581
question, and it has been suggested by the defendants that, if
it was discovered, before a patent issued that it was mineral land,
the title of the company would fail altogether, for the grant made
by Congress to the company did not include mineral lands.
Barden v. Northern Pacific Railroad Company, 154 U.
S. 288. We do not think it necessary to consider this
aspect of the case, nor to determine whether the plaintiffs would
be entitled to the relief asked if the mineral reservation had not
been made by the railroad company, and nothing else appeared
affecting the title except the fact that no patent had been issued
by the United States, together with a possibility that, before the
issuing of a patent, the land might be ascertained to be mineral
land, which did not pass under the grant by Congress. We forbear
any expression of opinion upon that point because, if it be assumed
for the purposes of this case that the fact just stated would not
stand in the plaintiffs' way, we are of opinion that the mineral
reservation made by the railroad company is, in itself, such an
encumbrance as prevents the plaintiffs from making a good and
indefeasible title to the land.
It is suggested that the reservation as to "other minerals"
ought not to be deemed an obstacle to the relief asked, because it
may never appear that there are any minerals under the land; that
it cannot be assumed, in the absence of proof, that the defendants
are likely to be disturbed in the full and complete enjoyment of
the land for every purpose for which it is adapted. On the other
hand, it cannot be affirmed, in view of the discovery of valuable
minerals in many parts of the West, that there are no minerals,
other than coal under the land in question. What the defendants are
entitled to is a marketable title -- a good and indefeasible title
in fee. But that they will not obtain if forced to take the land
subject to the railroad company's right of way over it for the
purpose of prospecting for and mining minerals which may be taken
off when found. From that burden they cannot be relieved in any way
except by the voluntary action of the railroad company.
But it is contended by the plaintiffs that the Act of March
3,
Page 168 U. S. 582
1887, entitled
"An act to provide for the adjustment of land grants made by
Congress in and of the construction of railroads and for the
forfeiture of unearned lands, and for other purposes,"
24 Stat. 556, c. 376, the Act of March 2, 1896, 29 Stat. 42, c.
39, and the concurrent resolution of June 10, 1896, 29 Stat.
Append. 14, confirmed as against the United States the right and
title of
bona fide purchasers of lands contained within
the limits of railroad grants, so that, as against such
bona
fide purchasers, the United States, by the acts cited,
expressly disclaims any rights whatever, and confirms absolutely
the title of such
bona fide purchasers. By this contention
is meant that the Act of March 3, 1887, as the same has been
construed by this Court in
United States v. Winona & St.
Peter Railroad, 165 U. S. 463,
165 U. S.
466-469, protects the title of Adams and Shilling as
bona fide purchasers even if, before a patent was issued
by the United States, the lands in question should prove to be
mineral lands.
It is sufficient upon this point to say that if the legislative
enactments referred to have any reference whatever to mineral lands
-- if they were held applicable to lands purchased in good faith
from the railroad company, and which turned out to be mineral lands
that Congress never granted -- that would only remove one of the
difficulties which, it is insisted, are in the way of plaintiffs,
for if the plaintiffs' title is, under the legislation of 1887 and
1896, good as against the United States, there will still remain
the encumbrance upon it arising from the right reserved by the
railroad company for all time -- whether the plaintiffs or their
vendees consented or not -- to go upon the lands in question for
the purpose of prospecting and mining for minerals other than coal
and removing any found there. A patent would convey the interest of
the United States in the land; but it would not destroy or release
the mineral reservation made by the Union Pacific Railroad Company
in its deed to Adams and Shilling. Purchasers from Adams and
Shilling would be bound by that reservation, even if the United
States issued a patent to the railroad company or to its
vendees.
The result of these views is that the defendants were not
Page 168 U. S. 583
bound to accept the deed tendered by the plaintiffs, and as it
appears that the plaintiffs cannot make such a title as they agreed
to give, as the cash payment was made upon the basis of a good and
indefeasible title in the plaintiffs, the defendants were entitled
upon their cross-complaint, framed in accordance with the
established modes of procedure in the territory, to have a decree
which, in effect, rescinds the contract and gives them back what
they paid.
The decree is
Affirmed.