The sixth section of the Act of March 3, 1891, c. 517, did not
change the limit of two years as regards cases which could be taken
from circuit and district courts of the United States to this
Court, and that act did not operate to reduce the time in which
writs of error could issue from this Court to state courts.
As a reference to the opinion of the Supreme Court of California
makes patent the fact that that court rested its decision solely
upon the construction of the contract between the parties to this
action which forms its subject, and decided the case wholly
independent of the federal questions now set up, and as the decree
of the court below was adequately sustained by such independent,
nonfederal question, it follows that no issue is presented on the
record which this Court has power to review.
Page 173 U. S. 480
This suit, commenced by the Southern Pacific Company (the
defendant in error here) against Darwin C. Allen, who is plaintiff
in error, was based on 84 written contracts entered into on the 1st
day of February, 1888. All these contracts were made exhibits to
the complaint, and were exactly alike, except that each contained a
description of the particular piece of land to which it related. By
the contracts, the Southern Pacific Company agreed to sell, and
Darwin C. Allen to buy, the land described in each contract upon
the following conditions: Allen paid in cash a stipulated portion
of the purchase price, and interest at seven percent in advance for
one year on the remainder. He agreed to pay the balance in five
years from the date of the contracts. The deferred payment bore
interest at seven percentum per annum, which was to be paid at the
end of each year. He, moreover, bound himself to pay any taxes or
assessments which might be levied on the property. The contracts
provided:
"It is further agreed that, upon the punctual payment of said
purchase money, interest, taxes, and assessments, and the strict
and faithful performance by the party of the second part [Allen,
the purchaser], his lawful representatives or assigns, of all the
agreements herein contained, the party of the first part [the
Southern Pacific Company] will, after the receipt of a patent
therefor from the United States, upon demand and the surrender of
this instrument, execute and deliver to the party of the second
part, his heirs and assigns, a grant, bargain, and sale deed of
said premises, reserving all claim of the United States to the same
as mineral land."
There was a stipulation that the purchaser should have a right
to enter into possession of the land at once, and by which he bound
himself, until the final deed was executed, not to injure the
property by denuding it of its timber. The contracts contained the
following:
"The party of the first part [the Southern Pacific Company]
claims all the tracts hereinbefore described as part of a grant of
lands to it by the Congress of the United States; that patent has
not yet issued to it for said tracts; that it will
Page 173 U. S. 481
use ordinary diligence to procure patents for them; that as, in
consequence of circumstances beyond its control, it sometimes fails
to obtain patent for lands that seem to be legally a portion of its
said grant, therefore nothing in this instrument shall be
considered a guaranty or assurance that patent or title will be
procured; that, in case it be finally determined that patents shall
not issue to said party of the first part for all or any of the
tracts herein described, it will, upon demand, repay (without
interest) to the party of the second part all moneys that may have
been paid to it by him on account of any of such tracts as it shall
fail to procure patent for, the amount of repayment to be
calculated at the rate and price per acre fixed at this date for
such tracts by said party of the first part, as per schedule on
page 3 hereof; that, said lands being unpatented, the party of the
first part does not guaranty the possession of them to the party of
the second part, and will not be responsible to him for damages or
cost in case of his failure to obtain and keep such
possession."
It was averred that, after the execution of the contracts,
Allen, the purchaser, had entered into possession of the various
tracts of land, and so continued up to the time of the commencement
of the suit. The amount claimed was three annual installments of
interest on the deferred price, which it was alleged had become due
in February, 1889, 1890, and 1891. The prayer of the complaint was
that the defendant be condemned to pay the amount of these
respective installments within thirty days from the date of decree,
and, in the event of his failure to do so, that himself, his
representatives and assigns,
"be forever barred and foreclosed of all claim, right, or
interest in said lands and premises under and by virtue of said
agreements, and be forever barred and foreclosed of all right to
conveyance thereof, and that said contracts be declared null and
void."
The defendant, while admitting the execution of the contracts,
denied that he had ever taken possession of any of the land, and
charged that the contracts were void because, at the time they were
entered into and up to the time of the institution of the suit, the
seller had no ownership or interest of any
Page 173 U. S. 482
kind in the land, and therefore that no obligation resulted to
the buyer from the contracts. By way of cross-complaint, it was
alleged that the defendant had been induced to enter into the
contracts by the false and fraudulent representations of the
complainant that it had a title to or interest in the property;
that, in consequence of the error of fact produced by these
misrepresentations of the plaintiff, the defendant had paid the
cash portion of the price and the interest in advance for one year
on the deferred installment; that, owing to the want of all title
to or interest in the land on the part of the complainant, the
defendant had been unable to take possession thereof, and that,
sometime after the contracts were entered into, the defendant had
an opportunity to sell the land for a large advance over the amount
which he had agreed to pay for it, which opportunity was lost in
consequence of the discovery of the fact that the complainant had
no title whatever to the property. The prayer of the cross
complaint was that the moneyed demand of the plaintiff be rejected,
that the contracts be rescinded, and that there be a judgment
against the plaintiff for the amount paid on account of the
purchase price and for the damage which the defendant had suffered
by reason of his failure to sell the property at an advanced price.
The complainant put the cross-complaint at issue by denying that it
had made any representations as to its title to or interest in the
land except as stated in the contracts. It denied that, at the time
of the contracts, it had no interest in the land, or that the
defendant had been prevented from taking possession, or had been
prevented from selling at an advanced price because of a want of
title. Upon these issues, the case was heard by the trial court,
which made a specific finding of fact embracing, among other
matters, the following: that the contracts sued on had been entered
into as alleged, and the installments claimed thereunder were due
despite demand; that no representations had been made by the
plaintiff as to its title other than those which were recited in
the contract; that the defendant had not lost the opportunity to
sell at an advanced price, as alleged in the cross-complaint.
Page 173 U. S. 483
As to the title to the land embraced in the contracts, the facts
were found to be as follows:
"That the lands and premises therein described were portions of
the public domain of the United States, and were granted to
plaintiff by an act of the Congress of the United States entitled
'An act granting lands to aid in the construction of a railroad and
telegraph line from the states of Missouri and Arkansas to the
Pacific Coast,' approved July 27, 1866. That all of said lands,
save section 5, in township 23 south, range 19 east, M.D.M., are
situated within a belt more than 20 miles and less than 30 miles
from plaintiff's railroad, generally known as the 'Indemnity Belt;'
the said section 5 being within 20 miles of said railroad."
"That the loss to plaintiff of odd-numbered sections within said
granted limits --
i.e., within 20 miles of said railroad
-- because of the various exceptions and reservations in said act
provided for, is fully equal to all the odd-numbered sections
within said indemnity belt."
"That on March 19, 1867, an order was made by the Secretary of
the Interior of the United States withdrawing, or purporting to
withdraw, from sale or settlement, under the laws of the United
States, all of said lands situated in said indemnity belt, and
that, on August 15, 1887, another order was made by said Secretary
of the Interior revoking or purporting to revoke said first-named
order, and restoring said lands to the public domain for the usual
sale and settlement thereof. The first said order of withdrawal is
set forth in volume __ of 'Decisions of the Secretary of the
Interior' at and the said second order in volume 6 of said
'Decisions,' at 84-92, and which said orders as so set forth are
here referred to, and made a part of this finding. That plaintiff
is the owner of said lands in fee under the provisions of said act
of Congress. That patents or
Page 173 U. S. 484
a patent therefor have not yet been issued to plaintiff by the
government of the United States. That it has not been finally
determined that patents or a patent shall not issue therefor or for
any part thereof, but proceedings are now pending before the proper
department of the government of the United States, instituted by
plaintiff, to obtain patents or a patent for said lands and
premises, and the whole thereof. That plaintiff has not been guilty
of any want of ordinary diligence in instituting or prosecuting
said proceedings to obtain said patents or patent."
There was a decree allowing the prayer of the complaint and
rejecting that of the cross-complaint. On appeal, the case was
first heard in Department No. 2 of the Supreme Court of California,
and the decree of the trial court was in part reversed. 40 P. 752.
In accordance with the California practice, the cause was
transferred from the court in department to the court in banc,
where the decree of the trial court was affirmed. 112 Cal. 455. To
this decree of affirmance this writ of error is prosecuted.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
It is asserted that the record is not legally in this Court,
because the writ of error was allowed by the chief justice of the
state after the expiration of the time when it could have been
lawfully granted. It was allowed within two years of the decree by
the state court, but after more than one year had expired. The
contention is that writs of error from this Court to the courts of
the several states cannot now be lawfully taken after the lapse of
one year from the final entry of the decree of judgment to which
the writ of error is directed.
This rests on the assumption that the Act of March 3, 1891, c.
517, 26 Stat. 826, not only provides that writs of error or appeals
in cases taken to the Supreme Court from the circuit courts of
appeals, created by the act of 1891, shall be limited to one year,
but also fixes the same limit of time for writs of error or appeal
in cases taken to the Supreme Court from the
Page 173 U. S. 485
circuit and district courts of the United States, thereby
repealing the two-years limitation as to such circuit and district
courts previously established by law. Rev.Stat. § 1008. As this
asserted operation of the act of 1891 produces a uniform limit of
one year for writs of error or appeals as to all the courts of the
United States, insofar as review in the Supreme Court is concerned,
the deduction is made that a like limit necessarily applies to
writs of error from the Supreme Court to state courts, since such
state courts are, Rev.Stat. § 1003, subject to the limitation
governing judgments or decrees of "a court of the United States."
The portion of the act of 1891 from which it is claimed the
one-year limitation as to writs of error and appeal from the
supreme court to all the courts of the United States arises is the
last paragraph of section 6 of that act. The section of the act in
question in the portions which precede the sentences relied upon,
among other things, defines the jurisdiction of the circuit courts
of appeals established by the act of 1891 and determines in what
classes of cases the jurisdiction of such courts is to be final.
After making these provisions, the concluding part of section 6
provides as follows:
"In all cases not hereinbefore, in this section, made final,
there shall be of right an appeal or writ of error or review of the
case by the Supreme Court of the United States where the matter in
controversy shall exceed one thousand dollars besides costs. But no
such appeal shall be taken or writ of error sued out unless within
one year after the entry of the order, judgment, or decree sought
to be reviewed."
It is apparent that the language just quoted relates exclusively
to writs of error or appeal in cases taken to the supreme court
from the circuit courts of appeals. The statute, in the section in
question, having dealt with the jurisdiction of the circuit courts
of appeals and defined in what classes of cases their judgments or
decrees should be final, and not subject to review, follows these
provisions by conferring on the supreme court the power to review
the judgments or decrees of the circuit courts of appeals not made
final by the act. To construe the section as relating to or
controlling the review by
Page 173 U. S. 486
error or appeal, by the Supreme Court, of the judgments or
decrees of circuit or district courts of the United States would
not only disregard its plain letter, but do violence to its obvious
intent. Relating only, then, to writs of error or appeal from the
Supreme Court to the circuit courts of appeals, it follows that the
limitation of time, as to appeals or writs of error, found in the
concluding sentence, refers only to the writs of error or appeal
dealt with by the section, and not to such remedies when applied to
the district or circuit courts of the United States, which are not
referred to in the section in question. This is made manifest by
the statement not that all appeals or writs of error to the Supreme
Court from all the courts of the United States shall be taken in
one year, but that "no such appeal shall be taken unless within one
year," etc. If these words of limitation were an independent and
separate provision of the act of 1891, thereby giving rise to the
implication that the words "no such appeal or writ of error"
qualified and limited every such proceeding anywhere referred to in
the act of 1891, the contention advanced would have more apparent
force. As, however, this is not the case, and as, on the contrary,
the words "no such appeal or writ of error" are clearly but a
portion of section 6, it would be an act of the broadest judicial
legislation to sever them from their connection in the act in order
to give them a scope and significance which their plain import
refutes, and which would be in conflict with the meaning naturally
begotten by the provision of the act with which the limitation as
to time is associated. Nor is there anything in section 4 of the
act of 1891 destroying the plain meaning of the words "such appeal
or writ of error" found in the concluding sentence of section 6.
The language of section 4 is as follows:
"All appeals by writ of error or otherwise from said district
courts shall only be subject to review in the Supreme Court of the
United States or in the circuit court of appeals hereby
established, as is hereinafter provided, and the review, by appeal,
by writ of error or otherwise, from the existing circuit courts
shall be had only in the Supreme Court of the United States or in
the circuit courts or appeals hereby established
Page 173 U. S. 487
according to the provisions of this act regulating the
same."
This section refers to the jurisdiction of the courts created by
the act of 1891, and to the changes in the distribution of judicial
power made necessary thereby. If the concluding words of section 4,
"according to the provisions of this act regulating the same," were
held to govern the time for writs of error or appeal to the Supreme
Court from the district or circuit courts of the United States, the
argument would not be strengthened, since there is no provision in
the act governing the time for such writs of error or appeal. The
contention that Congress cannot be supposed to have intended to fix
two distinct and different limitations for review by the Supreme
Court -- one of two years as to the circuit and district courts of
the United States and the other of one year as to the circuit
courts of appeals -- affords no ground for disregarding the statute
as enacted and departing from its unambiguous provisions upon the
theory of a presumed intent of Congress. Indeed if it were conceded
that the provisions of section 4 referred to the procedure or limit
of time in which appeals or writs of error could be taken in cases
brought to the Supreme Court from the circuit or district courts of
the United States, such concession would be fatal to the contention
which we are considering, for this reason. The concluding portion
of section 5 of the act of 1891 is as follows:
"Nothing in this act shall affect the jurisdiction of the
Supreme Court in cases appealed from the highest court of a state,
nor the construction of the statute providing for review of such
cases."
While this language clearly relates to jurisdictional power, and
not to the mere time in which writs of error may be taken, yet the
same reasoning which would impel the concession that section 4
related to procedure, and not to jurisdictional authority, would
give rise to a like conclusion as to the provision in section 5
just quoted. It follows, therefore, that the only reasoning by
which it is possible to conclude that the act of 1891 was intended
to change the limit of time in which writs of error could issue
from the Supreme Court to the circuit
Page 173 U. S. 488
or district courts, or in which appeals could be taken from such
courts to the Supreme Court, would compel to the conclusion that
the act of 1891 had expressly preserved the two-years limitation of
time then existing as to writs of error from state courts to the
Supreme Court.
From the conclusion that the sixth section of the act of 1891
did not change the limit of two years as regards the cases which
could be taken from the circuit and district courts of the United
States to the Supreme Court it follows that the act of 1891 did not
operate to reduce the time in which writs of error could issue from
the Supreme Court to the state courts. That period was two years,
in analogy to the time limit established by statute with reference
to writs of error to the district and circuit courts of the United
States, which courts, at the time of the passage of the act of
1891, answered to the designation of "a court of the United States"
contained in section 1003 of the Revised Statutes, regulating the
subject of writs of error to state courts. The circumstance that
Congress, in creating a new court of the United States, affixed a
different limitation as to the time for prosecuting error to such
court, and left unchanged the limitation as to the time within
which error might be prosecuted to the courts whose practice in
this particular governed the practice in state courts, irresistibly
warrants the inference that it was intended that the practice in
the state courts as to the time of suing out writs of error should
continue unaltered. The writ of error in this case, having been
allowed within two years from the final decree, was therefore
seasonably taken.
We are brought, then, to consider whether there arises on the
record a federal question within the intendment of Rev.Stat. § 709.
The claim is that two distinct federal issues are presented by the
record or are necessarily involved therein. They are first that, by
a proper construction of the act of Congress granting land to the
railroad, 14 Stat. 292, no title to lands which were beyond the
place limits, but in the indemnity limits, passed to the railroad
until approved selections of such lands had taken place; hence that
it was not only drawing in question the validity of an authority
exercised
Page 173 U. S. 489
under the United States, but also denying a privilege or
immunity, claimed under the statute of the United States, to decide
that the railroad had, before such approved selection, any right to
contract to sell the lands in question; second, that it was drawing
in question the validity of an authority exercised under a law of
the United States, and denying a privilege or immunity claimed
under such law, to hold that the right of the railroad to the lands
in question had not been irrecoverably adversely determined by the
action of the Secretary of the Interior, revoking his previous
action withdrawing such lands, even although at the time of such
cancellation of the prior general withdrawal there were pending in
the Land Department claims of the railroad to the land in question,
which at that time were not finally disposed of.
Conceding,
arguendo only, that the contentions thus
advanced would give rise to the federal questions as claimed, it
becomes wholly unnecessary to consider them if it be disclosed by
the record that the state court rested its decision upon grounds
wholly independent of these contentions, and which grounds are
entirely adequate to sustain the judgment rendered by the state
court without considering the federal questions asserted to arise
on the record.
McQuade v. Trenton, 172 U.
S. 636;
Capital Bank v. Cadiz Bank,
172 U. S. 425.
In inquiring whether this is the case, we are unconcerned with
the conclusions of the trial court, or with those of a department
of the Supreme Court of California, and consider only the final
action of the supreme court of the state in disposing of the
controversy now before us. A reference to the opinion of the
Supreme Court of California makes patent the fact that that court
rested its decision solely upon a construction of the contract, and
therefore that it decided the case upon grounds wholly independent
of the federal questions now claimed to be involved. The court held
that the contract disclosed that both parties dealt with reference
to the existing state of the title to the lands, the vendor selling
his hope of obtaining title and the vendee buying such expectation;
that the result of the contract was that the vendor in advance
agreed to sell such title, if any, as he might obtain
Page 173 U. S. 490
in the future, and that the vendee agreed, for the sake of
obtaining in advance the right to the title, if the vendor could
procure it, to pay the amount agreed upon, subject to the return of
the price in the event it should be finally determined that the
hope of title in the vendor, as to which both parties were fully
informed, should prove to be illusory. On these subjects, the court
said:
"The defendant further contends that the contracts were void
ab initio for want of mutuality or consideration, or
amounted at most to mere offer to purchase on his part. This
contention cannot be sustained. Plaintiff claimed title to these
lands, but its title had not been perfected by patent. Defendant
had the same opportunity as plaintiff of knowing the nature and
probable validity of that claim. Under these circumstances,
plaintiff agreed to convey to defendant when it should obtain a
patent, and to permit defendant to enter into possession of the
land at once. In consideration of these premises, defendant agreed
to purchase when a patent should be issued, paid at once one-fifth
of the purchase price and one year's interest on the balance, and
agreed to pay the remainder (with interest thereon annually in
advance) on or before a given date, with the right to a repayment,
without interest, in the event of an ultimate failure to obtain a
patent. These promises were strictly mutual, and each constituted a
sufficient consideration for the other. Plaintiff, by its contract,
surrendered its right to contract with or sell to anyone else, and
yielded to defendant the present right to possession which it
claimed. These concessions were clearly a detriment to plaintiff,
and, in a legal sense, an advantage to defendant, and they
therefore furnish a consideration for defendant's promise to
pay."
Upon the question of the final determination of the hope of
title upon which the return of the price was by the contract made
to depend, the court concluded as follows:
"The only question really involved in the case is as to the
construction of the contracts sued upon. It is contended by the
defendant that he was under no obligation to purchase the land or
to pay the remainder of the purchase price unless the
Page 173 U. S. 491
plaintiff should
within the five years obtain a patent
for the land, and that as the plaintiff had failed to obtain a
patent within that time and as the action was not tried until after
the expiration of that time, the defendant was entitled to a
rescission of the contract. But clearly the contracts will not bear
any such construction. The defendant contracted unconditionally to
pay the remainder of the purchase price 'on or before' a certain
day named, and to pay interest annually in advance on the
remainder, but the plaintiff contracted to convey to defendant only
'upon the receipt of a patent,' and was to repay the money only 'in
case it be
finally determined that patent shall not
issue.' The defendant therefore was not entitled to terminate the
contract or to require a repayment of the moneys paid until the
question of the issue of a patent to the plaintiff should be
'finally determined.' The findings state that proceedings are now
pending in the United States Land Department for the issue of
patent to the plaintiff, and that it has not been finally
determined that such patent shall not issue. At the time,
therefore, at which defendant contracted to pay the balance of the
purchase price, plaintiff was not in default, nor was it in default
at the time of the trial."
We cannot say that the state court has erroneously construed the
act of Congress, since its decree rests alone upon the conclusion
reached by it that, by the contracts between the parties, there
existed a right to recover whatever may have been the existing
state of the title. T he conclusion that the parties were competent
to contract with reference to an expectancy of title involved no
federal question. The decision that the final determination of
title, referred to in the contracts, related to the proceedings in
the Land Department which were pending at the time the contracts
were entered into, and not to the cancellation by the Secretary of
the Interior of the withdrawal order, which had been made by that
officer before the date of the contracts, precludes the conception
that the state court erroneously denied the legal consequence
flowing from the order of withdrawal. It follows, then, that as the
decree of the court below was adequately
Page 173 U. S. 492
sustained by an independent nonfederal question, there is no
issue presented on the record which we have the power to review,
and the cause is therefore
Dismissed for want of jurisdiction.
