Sheets v. Selden's Lessee

THE State of Indiana, being owner of the Northern Division of the Central Canal, and of certain adjacent lands, authorized its Board of Internal Improvement, to cause any surplus water, of which there was some, along 'with such portions of ground belonging to the State as might be necessary to its use, to be leased.' Under this act leases were made in 1839-40,-one to Yandes & Sheets, another to Sheets; each for the term of thirty years.

The leases reserved certain rents, payable semi-annually on the first of May and November, and they provided that if any rent should 'remain unpaid for one month from the time it shall become due,' 'all the rights and privileges' of the lessees 'shall cease and determine, and any authorized agent of the State, or lessee under the State, shall have power to enter upon and take possession of the premises,' &c. The first lease, that to Yandes & Sheets, in addition to the use of the water-power, in consideration of the rents reserved, leased, also, as necessary, 'for the use of the waterpower hereby leased,' and for the same term and on the same conditions 'the particular portion of ground belonging to the State at said point, included within the following boundaries, to wit, [here a particular piece of ground was described] containing a little more than half an acre.' The second lease, that to Sheets, in consideration of the rent reserved, leased also for the same term, and on the same conditions as the water-power was leased, 'such part of the ground belonging to the State as in the opinion of the engineer having charge may be necessary to the use of the water-power hereby leased,' to wit [here, also, a particular piece of ground, as thus necessary, was described]. The lease to Yandes & Sheets was executed on the part of the State by the President of the Board of Internal Improvement, and by the lessees in this form:

D. H. MAXWELL, [SEAL.] President of the Board of Internal Improvement.

DANIEL YANDES, [SEAL.]

WILLIAM SHEETS. [SEAL.]

The lease to Sheets was executed by N. Noble, Acting Canal Commissioner, and Sheets, in this form:

N. NOBLE, Acting Commissioner for the Northern Division of the Central Canal.

WILLIAM SHEETS.

The 'seals' which appear to the lease to Yandes & Sheets were ink scrawls. No seals of any kind appeared on the second lease, that to Sheets.

Some time subsequently to the making of these leases the State passed two statutes. By the first, entitled 'An act to authorize the Governor of Indiana to compromise with, and to cause suit to be brought against lessees of the water-power of the Northern Division of the Canal,' the Governor was authorize to sell 'all the right, title, and interest of the State of Indiana, in and to the Northern Division of the Central Canal, and all the rents that shall become due after the sale of the said property, and the water-power and appurtenances thereunto belonging.'

By the second, tntitled 'An act to authorize the sale of the Northern Divisior of the Central Canal,' the Governor and Auditor of the State were 'authorized to make sale and dispose of all the right, title, interest, claim, and demand which the State holds in the Northern Division of the Central Canal, situate in the said State of Indiana, with all the water-power and appurtenances thereunto belonging,' and authorizing those officers to convey the same to the purchaser, on behalf of the State, in the name of the State of Indiana.

The Governor accordingly made public sale of certain property, advertised for sale, as 'being all the right, title, interest, claim, and demand which the State may hold or possess in the Northern Division of the Central Canal, and all the rents which may have become, or shall become, due after the sale of said property, and the water-power, and the appurtenances thereunto belonging, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of way, dams, water-power, structures, and all the appurtenances thereunto belonging.' And having reported the sale to the legislature, that body confirmed it, directing him to convey the said portion of the canal, with the rights, privileges, and appurtenances, to the purchaser in fee.

The Governor and Auditor of the State (J. A. Wright and E. W. H. Ellis) afterwards executed to F. A. Conwell, who held under the purchaser, an instrument, which made one of the questions in the case. It purported to be made 'between Joseph A. Wright, Governor of the State of Indiana, and Erastus W. H. Ellis, Auditor of said State, of the first part, and F. A. Conwell of the second part,' and recited the sale, and referred to the several acts under which the instrument professed to have been executed, which are those hereinbefore recited; and acknowledged the payment of the purchase-money.

It then makes known that, by virtue of the power vested in them by the acts and joint resolution therein named, 'We, Joseph A. Wright, Governor of the State of Indiana, and Erastus W. H. Ellis, Auditor of the said State, do hereby convey to the said F. A. Conwell,' &c., in fee, all the estate, &c., herein described; the description being just as the property was sold, and as the same is above described; nothing, however, being described by metes and bounds, or in any form more specific than that above given; and, as the reporter inferred from the argument, neither parcel falling within the specific designation of 'bank, margin, tow-path, sidecut, feeder, basin, right of way, dam, or structure.'

The deed was thus executed and tested:

'In testimony whereof, we have hereunto set our hands and affixed the seal of said State, at the city of Indianapolis, the day and year first above written.

'JOSEPH A. WRIGHT,

'Governor.

'ERASTUS W. H. ELLIS,

'Auditor of State.

'C. H. TEST,

'Secretary of State.'

{SEAL OF THE STATE OF INDIANA.}

Selden became owner of the property thus sold by the State; and Sheets, being in possession under the leases which the State had made, and having refused to pay rent, an agent of Selden, authorized by parol, formally demanded, on the first day of May, 1860, and afterwards on the first day of June, a short time before sunset, upon the premises, the rents due on the first of May of the year just named. Payment not being made, Selden, regarding the lease as forfeited, brought ejectment against Sheets (the only tenant in possession). The premises for which the action was brought were the parcels of land described in the two above leases, executed in 1839-40 by the Board of Internal Improvement, as property belonging to the State, and leased in connection with the surplus water, because necessary to the use of such water. The defences in substance were:

I. To the deed of the Governor and Auditor.

1. As not executed in the name of the State.

2. As not embracing the premises in controversy.

II. That the leases not being under seal, Selden, as grantee of the reversionary interest of the State, could not maintain ejectment upon breach of the covenants to pay.

III. That the demand for rent, if authorized at all, should have been made on the 31st May, and having been made on the 1st June, was too late; moreover, that the agent who made the demand was not authorized in writing.

The court below-the Circuit Court of the District of Indiana held none of these defences sufficient; and judgment was given for the plaintiff. The same reasons urged against recovery there were taken for reversal in error here.

Mr. Dumont, for Sheets, plaintiff in error: The deed by the Governor and Auditor is not a deed made on behalf of the State in the name of the State; which the statute declares that it must be. It is by Mr. Wright, the Governor, and Mr. Ellis, the Auditor. These persons do not profess to act even as attorneys of the State; and if they did, the thing would be irregular, for the deed should have been made in the name of the principal; that is to say, of the State by its attorneys; and not in the name of the Governor and Auditor, even if they represented themselves as attorneys of the State, which with such a mode of presentation would not be a grantor at all. 'It was resolved,' says Lord Coke, in Combe's case, 'that when any has authority to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place and to represent his person, and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.' No rule in the law is better settled than this, and none has so uniformly received the sanction and approbation of the various judicial tribunals of the country. In this case, however, as we have said, the attorneys do not even profess to act in the name of the State. They act in their own name; their official titles being added, just as the same titles might well have been added, and probably would have been added,-as descriptions of who the grantors were,-if the same individuals had been conveying lands belonging to themselves personally. Indeed, it would be doubtful whether, in any kind of contract, titles thus appended would be held to be more than descriptive designation, or to relieve from personal liability; for Wright neither conveys nor signs as governor, nor Ellis as State auditor. In regard to a deed, however, the act of acts in the law, the case is stronger than the case of simple contracts, and, as we think, is quite plain. The statutes under which the sale was made have no such inherent force as to operate without regard to general law, as administered between private persons. They may or may not indicate what was meant to be sold; but they do not alter the ancient settled effect of those acts which are done. We concede that, in many cases of Government contracts, the intention to bind the Government and not the agent will prevail; as, for example, where, from the whole instrument, such intention is manifest; but this exception does not apply where the act of the agent, and the manner of its execution, are alike specifically pointed out by legislative direction; and especially does it not apply to a case like the present, where the effect of the act of the agent is to divest the State of title to a valuable freehold estate in lands, and important public franchises besides. Here the legislature has provided how that thing should be done, and by whom.

2. The State, no doubt, was owner of all the lands demised by the leases; but did the State authorize a sale of all those lands? The legislature describes specifically what should be sold. It is the 'water-power' and the 'appurtenances;' nothing else. Now, this ejectment is brought for certain pieces of land, meted and measured out; pieces of land which, confessedly, are not any one of the things either advertised for sale or sold, unless theyare those 'appurtemances' which, we admit, were sold. But 'it seems now settled,' says Tomlins, citing authorities, 'that lands will not pass by the word appurtenances.' To insist that the particular tracts described in the leases are appurtenant to some one or more of the things sold by the State, would be even more absurd than to maintain that land can be appurtenant to land. It would be maintaining that land can be appurtenant to a mere easement, a right of way, a water-power, or a stream of water, natural or artificial. The lands demised cannot be appurtenant to the bed of the canal, nor to its banks, nor its margins, nor its tow-paths, nor its side-cuts, not its feeders, nor its basins, nor the right of way, nor the dams, nor the water-power, nor the structures, specified in the act. What the State meant to convey is not important. The question is, what has she conveyed? and that is to be determined by looking at the words of the statutes and deed, and interpreting them by the rules of law; rules which are of all time, and are the same whether the parties be States or subjects.

2. The leases are not under seal. Now, then a forfeiture is asserted, the party asserting it must prove the forfeiture strictly, for forfeitures are odious. Whence comes this right of re-entry at all? It comes from an English statute; a statute passed in the worst year of, perhaps, the worst of English kings, in the 32d Henry VIII; but which, in common with most statutes of our mother country prior to the fourth year of James I, is confessedly in force by statute adoption of 1818 in Indiana. The language of the English statute is thus:

'The grantees or assignees shall have and enjoy the like advantages against the lessees, &c., by entry for non-payment of rent, &c., and also shall and may have and enjoy all and every such like and the same advantage, benefits, and remedy, by action only, for not performing other conditions, covenants, and agreements, contained and expressed in the indentures of their said leases, demises, or grants, against all and every the said lessees, &c., as the said lessors or grantors themselves, &c., ought, should, or might have enjoyed, at any time or times, in like manner and form as if the reversion of such lands, & c., had not come to the hands of our said sovereign,' &c.

This statute carries with it the construction which it has received in England, as well as with us. Now, in Bickford v. Parson, Judges Wilde, Coltman, Maule, and Cresswell, severally gave opinions, each one of them assuming it to be settled law that the bring a case within this statute of 32 Henry VIII, 34, the lease must be by deed; Maule, J., saying, 'The demise not being by deed, the right to sue is not transferred to the assignee of the reversion by force of the statute.'

Doubtless, it will be said that the necessity for a seal in the true form is dispensed with by our Illinois statute of 1843. But is it? The statute provides that an ink scrawl may be used, 'except where any statute of this State shall require a specific seal.' Is it clear that, adopted by statute of Illinois as the statute of 32 Henry VIII will be conceded by all to have been, a 'specific seal' is not necessary when you attempt to eatablish the forfeiture allowed by the English act; that forfeiture especially which there, as here, is odious, and in favor of which nothing will be intended nor benignantly construed? But even supposing that an ink scrawl, or even no seal, would be sufficient between private persons, yet certainly when the State is the lessor, the private ink scrawl of the State's agent is not sufficient.

3. The demand was too late. This court has fully recognized the obligation of the common law requirements in regard to re-entry on the ground of forfeiture for non-payment of rent. One of these requirements is, that where, as in the present case, the agreement is, that 'if the rent shall be behind and unpaid by the space of thirty or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter; a demand must be made on the thirtieth or other last day.' The right to re-enter for breach here is by the terms of the lease suspended for one month from the time the rent became due. 'The month, by the common law,' says Tomlins, quoting good authorities, 'is but 28 days, and in case of a condition for rent, the month shall be thus computed. So in the case of enrolment of deeds, and generally in all cases where a statute speaks of months.' It is true that, by an Illinois 'act in relation to the construction of statutes and the definition of terms,' it is declared that the word 'month' shall mean a calendar month; but this act relates only to the construction of statutes, and to the meaning of terms as used in them. So, too, the fact that in mercantile contracts, or in other contracts where there was, obviously, such an intention, the calendar month is assumed, is not important; for this business of forfeiture is a very strict proceeding under ancient common law. Admitting, however, that a calendar month was meant, and that the court will so construe the leases, yet then the authority is, that the demand must be on the last day of the month. Here it was on the first of the succeeding.

Mr. Hendricks, contra.

Mr. Justice FIELD delivered the opinion of the court.