130

of location and construction which are to be observed by the defenllants in exetcising the authority granted, (act .June 16, 1886,) and requires the approval of the secretary of war to the plan and location of the structure, precedent to its erection; It is now insisted in behalf of the defendants that the court must presume that these conditions have been complied with, alld conseq1Jently that the' bridge is, a lawful structure. The demurrer thus raises the question of the burden of proof in a case where the navigati?Il of public waters has been obstructed under circumstances that constitute a nuisance, unless those concerned are authorizedby competent authority to maintain the obstruction in the manner and to the extent in which it exists. I have no hesitation in deciding that those whp,(:lbstruct the use of a public highway, whethElron land or water, must justify the act by producing their authority, and proving that they have exercised it in essential conformity to its terms. Their ¥t is an. encro'a,chment upon the rights common to all,unless they have a peculiar .privilege which exempt& them from the general rule of obligation.. The fact that a bridge over'navigable waters has been sanctioned by congresll, or by the state, within whose limits thE)Y are situated, and that it, has, been built by the person or corporation authorized to build it, does not render it a legal structure, unless as built it conforms to the terms and limitations of the authority. Oityof Georgetown v. Canal 00., 12 Pet. 97j Paeleet 00. v. Railroad 00.,2 Fed. Rep. 00. v. Pa,eleet Co., 125 U. S. 260,8 Sup. Ct. Rep. 874; Rutz v. City of St. Louis, 7 Fed. Rep. 438. If the contention for the demurrer is !lonnd, it would devolve, upon a plaintiff, whose right to the free of waters has been interrupted by' an impediment which prima facie is a nuisance, to prove that the acted under an assumed authority, but was not justified, because his acts were outside of the limitations 6f: his authority; in other words, to negative facts by way of defense which lire peculiarly within the knowledge of the defendant. It would be as reasonable to contend that the burden of proof is upon a plaintiff, who has'sued an officer for false imprisonment for takirig him in cust'ody on the public highway, to show that the officer acted without process, or under void, process,or without proba.ble cause. The demurrer is over-' wed, with leave to the defendants to answer upon the usual terms.

WILCOX

v.

CARR

et al.

';-;

(Otnmlt

(JOUf't,

8. D. Iowa, W; D.

December 81,1888.)

. ,';" '

Plaintiff, a Qf ,Connecticnt·. placed In the, hands of her agent l:q that state a sum for investment in western 10Rns, which the agent procnred to be . negotiated by C.; in Iowa. Part of the amount was loaned through C. to de: fendant. the principal interest being made paYable at the agent's office in Connecticut. C. collected the principal and interest of the various Joans, in. cluding nine installments of interest. from defendant; 'and returnedto defend-

,AND AGENT.

V. C4RJ;t.

J.31

ant hfscoupons" Held, thJl,t,the payment of the prIncipal to C. In response to the usual.notice from him,of its maturity was justified, and discharged the debt; notwithstanding O.'s e1D;bezzlement of it. " ,

In Equity. , Bill by Almira R. Wi1{:()x against Benjamin W. Carr and others fodhe foreclosure of a mortgage on real estate. ' , Cummi1l8& Wright, for complainant. L. L. Delano and Lehman & Park, for defendants.
SHIRAS, J. This suit is brought for the purpose of foreclosing a mort,. gage on realty, ,executed by Eenjamin W. Carr and his wife, to secure the payment ofa coupon bond for $700, dated May 1, 1880, and ma:' turing May 1 ,1885. The defense is that the debt has been paid. The evidence shows that it is another of the contests caused by the emhezzlements of Hugh R. Creighton, of which several have already been heard and determined in this court, and in which the ultimate question to be solved is, which of the parties, both being free from fault, must bear the loss occasioned by the wrong-doing of the said Creighton?' In this case it is not disputed that about the date of the maturity of the mortgage debt the defendant Carr, for the purpose of paying off com": pljlinant's debt and mortgage, negotiated a loan of $650 of the, German Savings Bank of Davenport, Iowa, and through Holmes, Nash & Phelps remitted the same, with $78 additional, to Hugh R. Creighton, at Des Moines; the amount thus remitted being sufficient to pay in fuilthe prineipal due complainant; with the six months' interest due May 1, 1885. The money th,us sent was received by Creighton, but was not forwarded to complainant; and in the June following Creighton absconded, being a defaulter in a large amount. In determining upon whom the loss must fllli it is necessary to ascertain the position occupied by Creighton when he received the money, and whether he received it as the representative of the complainant or of the defendant Carr. On behalf of complainant it is claimed that as the bond and mortgage by their terms were payable at the office of B. R. Abbe, in Hartford, Conn., no payment was completed until ,the money was actually recehred at the designated place of payment; that the complainant had no knowlege of Creighton, and never authorized him to receive any payments for her; and that he must be beld to be the agent of the defendant, charged with the duty of fOI'warding the money received from defendant to Hartford; and that the consequences of his failure so to do must fall upon defendant. On behalf of the defendant it is claime<i that Creighton acted, in receiving the money, as the representative of complainant; that defendant was justified in dealingwith him as complainant's representative, and in making the payment to him as ,such. To settle this question it is necessary to ascertain tbef'acts attending the inception of the loan, and the relation of the partillS who were instrumental in negotiating the same. On part of complainant is submitted the testimony of complainant and of B. R. Abbe, by which it is sought to show tbat the latter, as the agent of the Union Loan Association of Des Moines, sold to complaingnt

,

-132

FEDERAL REPOR'l'ER.

the bond and mortgage in suit,'alid that there was in fact no connection between complainant and, Oreighton in the transaction. The true facts of the case, however, are quite clearly shown in the correspondence that passed between -Abbe and Creighton. It should be first noted that the" complainant, in answer to thequestion, "Who acted for you as your agent in making the loan to the defendant Carr?" replied, "Mr. B. R. Abbe;" and she also testified that in the early part of the year 1880, she placed in the hands of B.R. Abbe the sum of $2,000, to be by him invested in western loans for her. On January 7, 1880, Abbe wrote as follows to Creighton, at Des Moines: "Mrs. Almira R. Wilcox, of Hartford. has left an order for $2,000 of farm loans, none of the loans to be over $500, all at 9 per cent., good choice ones. Now, Brother Creighton. I want you to get some extra loans for this lady. She has been dealing with Pearson, of Chicago, but has come to me, because I represented you as choice. reliable, and sound. and that you would get her just what she wanted. Don't disappoint her. She has more to invest beside in time....... *" January 21,1880, Creighton repHed to Abbe as follows: "I have your telegl'am of the 20th, and Thomas A. French, Thomas Snyder, and Mary E. Do well will be clol:led at once. * * ... I will draw on you today for the Almira R. Wilcox money,-$2,OOO. less 1 per cent, com. to you, $20.00; amt. of draft. $l,980.00,-:"as authorized by your letter of the 7th inst. If I am obliged to place any of it at8 per cent. interest I will allow you a little more. Mr. Smith of this ofliceis Qut now looking up some good applications for Mrs. Wilcox." February 12, 1880. Creighton wrote Abbe a statement, showing that he had forwarded him for Mrs. Wilcox: Note of Abraham Angervine for $200; note of August Kastfor$500; and of Adam Buter for $500,"which leaves to be placed $100; papers to be dated January 10, 1880." In a number of letters passing between Abbe and Creighton reference is made to the investment of this $700, until in letter of July 1, 1880, Abbe . acknowledged receipt of the evidence of investment. Turning now to the mortgage ex cuted by the defendant Carr, we find it was acknowledged on the 26th day of June, 1880. Thus it is made clear that in January, 1880, the cOlnplainant placed in charge of B. R. Abbe, as her agent, at Hartford, the sum of $2,000, to be invested for her in loans upon western lands; that Abbe intrusted the actnal making of the loans to Creighton; that Creighton drew for the money about .lanuary 21, 1880, the draft being for $1,980, the balance being left with Abbe as a commission due him; that in February $1,300 of the sum had been invested in the loans to Angervine, Kast, and Buter; that the remainder was not invested until about June 26th, when it was loaned to the defendant Carr, and the bond and mortgage sued on were taken and forwa,rdedto Abbe for complainant.;, There can be then, no possible question that the money of complainant was by Abbe placed in Creighton's hands for investment before any loans had been secured. He held it asher money, to be invested as directed by Abbe; and in seeking the investments and in pllll:ling the loans he was beyond question acting for Abbe, and through him for the complainant. Had ,he then embezzled

\

WILCOX fl. CARR.

.133

the money, or had he otherwise ffiiled in ,the proper performance· of his duty, the complainant, either directly or through Abbe,·could certainly h/tve called him to account for her money thus in his Havillg,however, made the investments as stated, he returned the papers to Abbe, and the question is whether he was authorized to represent the complainant in collecting the interest and principal of the loans thus made by him. Up to the time of the disappearance of Creighton the correspOlldence in regard to these loans was conducted between Abbe and Creighton, and from these letters it clearly appears that to;Creighton was intrusted the duty of collecting the several installments of interest as they matured, and also the principal of the loans made. In his deposition Abbe denies that Creighton had any authority in the premises, yet he admits that he never had any correspondence with the debtors in regard to the loans, and that all letters touching the same were sent to Creighton; and further that he expected thl1t the interest and principal would be sent through Creighton to him, the loans being payable at his office. The letters, however, passing between Abbe and Creighton, as already said, clearly show that Abbe expected Creighton to. look after the collection of the amount due on theee loans, and at least eight payments of interest were made by the defendant Carr to Creighton, and the coupons therefor were duly returned to the defendant. As au illustration of the relation held by Creighton to these loans owned by complainant, take the correspondence in regard to the loan of Abraham Angervine. Un.. der date of August 13, 1881, Creighton writes to Abbe: "We find it necessary toforectose loans No. 550, Wm. Boardman to Sani!, B. Hull; No. 600, Almira R. Wilcox to Abraham Angervi ne; and No. 726, Wm. Bolles to Andrew J. and Fannie Childs. The papers in No. 550 are notes, mtg.. and abst.; in 726 are notes, mtg., and his pulicy. Please send these papers. if possible, by return mail, as we have begun first two for term of court beginning Aug. 25th, and the third for a term a few days later; 50 please send as soon as you can. There will be no trouble to get full amount of mortgagee'iJ claims out of the premises." . , . May 30,1882, Creighton writes to Abbe: "Get the Angervine certificate of sale from Almira R. Wilcox, and send it on, as I am informed the money is paid to the clerk of Audubon county. and interest is stopped, and we will collect and forward." , . June 7, 1882, Creighton to Abbe: "Your favor of - - is received, with inclosures as stated, Almira R. Wilcox cert., which will be collected." The correspondence further shows that as the six months' interest came due upon the other loans belonging to complainant for the years 1881; 1882, 1883, and 1884, the same was collected by Creighton, and forwarded to Abbe for complainant. When Abbe learned the fact that Creighton had made an assignment, he wrote him under date of June 15, 1885, as f o l l o w s : ' ".. .. .. Also give me an itemized account of any monies paid to you on of any of the mortgagees whose loans have been made payable at my

134
.... ...

FEDERAL REPORTER.

except Wm. BGlles, vlz.,'John .. ... Almira.R.. Wilcox. ... 1 want if been paid t.!> account of t,hese Pll.rties, ,WhiCh you have nots,(mt to me, and, If, so, how much, and from whOIll, as mortgagor, it was paid to YOll·. Also you are hereby forbidden to receive any money from anymottgagor, for the account of any of the above-men,tionEld parties." Further quotations need not be made from the correspondence to show that Abbe intrusted to Creighton the duty of collecting and forwarding the money due complainant,-both the principal and interest; and it is no less clear that· Creighton held .himself out to the defendant Carr as one authorized. to demand and receive the payments as they matured. The following, then, are the facts. in this case as established by the ev· idence: In January, 1880, the complainant placed in the hands of B. R. Abbe, as her agent, $2,OOO,:to be invested in western loans, and intrusted to him the supervision of s-ach investments after the same had been made. B. R, Abbe applied to Creighton, at:Des Moines, Iowa, to make the investments contemplated, and about January 21st the money was transferred to Creighton at Des ,Moines. During the months of February, March, and June, 1880, the entire sum was invested in four separate loans; one of $700 being made to the ,defendant Carr, the principal beingpayable May 1, 1885, and the interest and principal being payable aUhe office of B. R. Abbe, at Hartford, Conn. The arrangement between Abbe and Creightonconlemplated the collection by the latter of the principal and interest of these loans as they came due, and the forwarding of the amounts collected to Abbe, at Hartford, to be,by him paid to complainant. Creighton, in pursuance of this arrangement, notified the defendant Carr. and the other debtors of the time when the respective payments came due, and requested payment to be made to him. The defendant Carr and the other debtors paid the installments of interest as they came due to Creighton, and subsequently received from him the coupons that had been attached to the bonds or notes executed by them. Nine payments ofinterest were tqus made by the defep.dl1nt Oarr to Creighton, the coupons being returned to him through Creighton. Shortly previous to the maturity of the principal of his loan, he received a notice from Crei'ghton of the time it would mature, and the amount needed to discharge the debt in full, which amount the defendant in due time forwarded to Creighton. The sum thus sent was received by Creighton, but he failed to forward it to Abbe, atidin fact he embezzled it. These facts justify the conclusion that Abbe was the agent of complainant, with authority to invest the $2,000 in western loans, and to supervise the collection of the principal and interest thereof. That in the usual course of such business it would be necessary for Abbe to employ some party or pllrties in the west to make the loanf\ and attend tothe collection thereof, ran!! that it must be deemed that Abbe ·possessed the'right so to do. That Abbein fact did employ not only to invesUhe money, but to collect the same, and that the defendant was justified in paying the debt, when demand there(jlf was made of him by Creighton, to the latter. That such payment, when made, discharged the debt evidenced by bond

BRIGGS tl.WABH-PUBC-QUA.

135

and mortgage held by complainant. The facts :of the case bring it fairly within the rules stated by the supreme court in !3raruJtm's Ex'r v. Chappell, 12 Wall. 681. . The defense of payment being sustained by the facts, it . follows that complainant's bill must be dismissed on the merits, and that defendants recover the costs of this proceeding; Decree accordingly·

. BRIGGS

etal.". WASH-PUK-QUA

tit al.

(Gircuit Gaurt, D. Kan8a8. December 26,1888.)
INDIANS-RIGHTS OF HEIRS-CONVEYANCE 011' LUID BBFORB PATENT--ESTOPPEL. " '

Act Congo Aug. 4, 1886, 2, (24 St. at Large, 219,) provides that on the death of an allottee of land under the treaty of June 28,1862, with tbe Kickapoo Indians, leaving beirs, and without having obtained patents, the secretary of the interior shall cause patents in fee-simple· to issue in the name ,of the orig, inal allottee, and that such original allottee shall be regarded as a citizen. of the United $t8tes and ofthe state of Kansas; the land to become apart ofbis , estate, to be administere!i or descend to his heirs, etc. Reld, that the United States holds 'the legal title in fee-simple in trust for the heirs of the allottee.; and the latter are estopped by ·their warranty deed conveying the land be· fore obtaining a patent frpm title against the grantee.

tn Equity. . , Bill by Lewis M.Briggs and others against Wash-puk-qua and to quiet ,titre to certain Jands conveyed to com;plliinants by defendants. Jackson &: Royse, for complainants. . Waters, Chase &: Tillotson, for defendants.
FOSTER, This is a bill, to,quiet title to the following real estate: The N. W. t of section 9, township 5, of range 17, and the S. E. t of the N. :E. t of section 8 of the same township and range, situated in Atchison county. The first-named tract was allotted to Wash-ka-ta-mosha-wa, a Kickapoo Indian, under and by virtue of the treaty with the Kickapoo Indians of June 28, 1862. 13 St. at Large, 623. The lastnamed tract was allotted to Ke-ve-nes, also a Kickapoo Indian, under the same treaty. The right of an allottee under that treaty to obtain a patent and to alienate his land depended upon his showing by proceedings in the federal court that he was competent to manage his own property, and had severed his tribal relations, adopted the habits of civilized life, and in fact should become a citizen of the United States. Both of these allottees died some time prior to without havingobmined ptttents to their lands,andwithout having taken any steps under the treaty of 1862 to procure the same. The defendant Wash-puk-qua was the wife of the first-named allottee, and the mother of the last-named, and was the only surviving heir. She afterwards married Wah-b, who is made cO-deferidant in this case. On August 28,1886, said Wash-pukqua, as·the heir of said allotteesjl1nd her husband and co-defenaant, con-