JULY 1829. V. Caller. obnoxious law, a law which brought the government as a grand speculator into the land market, and which in effect wrung from the citizens exorbitant sums for a very inad- Carrington equate consideration; a law which of itself was directly in the teeth of sound policy, is to be regarded with the same reverence which is due to those wise regulations, the salutary effects of which on the happiness of society, have been sanctioned by long experience? It is an unusual course for a nation to pursue in disposing of its domain to its citizens by selling it to the highest bidder at public auction; and at least in this State, has been oppressive to all, and entailed irretrievable ruin on many, by loading the whole community with an immense land debt. During the existence of such a law, it is difficult to believe that any combination of the people for the purpose of buying the public lands at a fair and reasonable price was against public policy. But suppose such combination of individuals with such an object in view, forms no exception to the general rule, and further suppose that some members of the company joined mainly with a view to speculation; it is yet maintainable on principles of law and reason, that the purchasers at the sale by the company, cannot refer back to the mode of acquisition or circumstances under which the company acquired the land from the United States, in order to avoid their contract with the company. The United States voluntarily sold the land to the comIf the combination on the part of the company pany. was unlawful, and vitiated their purchase, the United States might have complained and set it aside; but with a knowledge of all the circumstances, through their agent, the Register, they acquiesced in the proceedings of the company, and confirmed the sale by receiving part payment and granting certificates to them; with their eyes open they confirmed a contract which otherwise might have been avoided; and thus made it good and lawful, and vested in the company an exclusive right to the land. And all the authorities support the position, that if one party know of the imposition practised, or attempted to be practised by the other party, and if instead of rescinding, he proceed to a completion of the contract, this amounts to a waiver or extinguishment of the imposition, and renders the contract lawful and binding. It must then be coneeded on all hands, that the company, by their purchase from the United States, became the legal owners of the JULY 1829. Carrington V. Caller. land, and had a right to sell and dispose of it on any terms they pleased. As to the case of Meggison, he was not a member of the company, and cannot possibly have any thing to do with the mode or manner in which the company acquired their right to the land. He claims directly from the company, who being the rightful owners when they sold to him, he cannot refer back to the conduct of the company previous to their purchase from the United States, in order to avoid payment of his purchase from the company. To me the doctrine docs seem preposterous, and not sustained by law, that after Meggison had purchased land from the company, and with a full knowledge of the imposition, if any had been practised, gave his note for payment, received title, and has since sold the land, he should now be permitted to avoid payment, by a reference back to any circumstance attending the original acquisition from the United States. He has got the land which was unquestionably the property of the company; and does not justice require, and will not the law compel him to pay the price of his purchase to the company who were the rightful owners. But it is here objected that May, a member and agent of the company, agreed with Meggison that he should have the land at an advance of two dollars. It will be recollected that afterwards, by a vote of the company, he actually got one quarter section on those terms: but the company disavowing the authority of May to make the agreement, the other quarter was sold to Meggison at auction for eleven dollars per acre, but instead of then annulling his contract, with a knowledge of all the circumstances, he proceeded to its confirmation by receiving titles from the company, and giving his note for the purchase, and which is the ground of the present action. I will admit, pro hac vice, that May was authorized by the company to make the agreement with Meggison; yet it seems that he placed no reliance on that agreement; for his subsequent conduct in purchasing the land at eleven dollars, giving his note and receiving titles with a knowledge of all the circumstances, is conclusive evidence that he had abandoned May's agreement, and treated it as a nullity, if any such ever existed. And in any point of view, I hold it as absolutely necessary, that Meggison should have offered a restoration of the land to the company, and to have placed them in statu quo, before he JULY 1829. V. Caller. could set up such a defence to defeat a recovery on the note. It can make no difference whether Meggison is suing for a recission of the contract, or whether the plain- Carrington tiffs are suing to recover the purchase money. In either case the same principle of law and justice applies. In either case, before Meggison could succeed, he should place or offer to place the company in the same condition in which they stood before they sold him the land. As to the case of Caller, the same reasons which create a liability on Meggison, make him equally liable, though he was a member of the company. If the company, by virtue of their purchase from the United States, became the true owners of the land, Caller cannot refer back to the mode of acquisition from the United States, in order to avoid payment for his purchase. The taint of the original transaction was cured or removed by the United States consenting to the sale under the circumstances, before the company resold to Caller: nor can it be readily perceived by what rule of law or logic, the original taint under these circumstances, can be extended to vitiate his contract, and to defeat a recovery of the purchase money. The rule in pari delicto melior est conditio defendentis cannot aid him. Though he was a member of the company, and a party to the orignal combination, yet all the unlawfulness of that combination having been done away by the act of the United States in confirming the sale and granting certificates to the company, at the time of his purchase there was no remaining guilt in the first transaction or purchase from the United States which could extend to or vitiate the company's sale to him. If he, with a knowledge of all the material circumstances, still proceeded to bid for the land, to buy it, to receive titles and give his note, surely he ought now to be held to his bargain. If Caller was afterwards cheated by the master spirits of the association in a division of the profits by the A. B. C. scheme, or other artifice, this happened after the sale by the company to Caller, and cannot affect the validity of the note he had given for the land. After he discovered the fraud, if any, he acquiesced, and cannot now complain, and ought to be compelled to pay the price he agreed to give for his land. If the defence insisted on were legal and available, it surely comes with a bad grace from Cciler, who is said to be equally guilty with the other members of the company in thealleged nefarious transaction. JULY 1829. V. Caller. But how these men, whether members of the company or not, are to be excused from the obligation of contracts Carrington fairly made, with a knowledge of all the circumstances, and that too consistently with the rules of law and the principles of justice, I have not capacity to comprehend. If they have received a valuable consideration from the land company, and surely they have, is it just, and is it not a dangerous doctrine to establish, that though they are permitted to retain the consideration, yet they sha:1 be excused from paying the purchase money? a Boardman In support of my opinion vide 4 Cowen, 11th Wheaton, and the references contained in the brief of counsel. I however respectfully submit to the judgment of a majority of the Court, and rejoice that this long agitated question is at last decided and put at rest, I hope forever. By JUDGE WHITE. As these cases, in my opinion, depend essentially on the same principles, I shall consider them together. The pleas which went to the delivery of the notes, and the filling of the blanks with the names of the payees, having in effect been disposed of by a case heretofore decided," it only remains to consider of the questions which arise under the pleas of fraud. In the year 1819, at the land sales in St. Stephens, there was a company formed, the object of which was to secure a large quantity of land to themselves, at as small a price as possible. Some wished to secure their own settlements and others to be profited by a resale of the lands bought. To effect this object, and attain the full purposes of the association, they resolved to put down competition. Hence the hopes and fears of many attending the sales were appealed to, with a view to influence them to join the company. On the one hand, they were flattered with the hopes of getting lands by connecting themselves with the company, at a lower price than from the government, and on the other, when it was known that particular persons wished to buy particular tracts including their improvements, they were threatened with the combined wealth and power of the association, in bidding against them. These resorts, as might be expected, were effectual to a great extent, though some held out to the last and would not join. Meggison was of this number. But to induce him not to bid, he was promised two quarter sections which he wanted, at an advance upon government price of two dollars per acre. The business of the company was managed by a committee, and one of its fundamental articles was, that none but land buyers should join, each one of whom should advance one thousand dollars. The company bought a great quantity of land, which they soon after resold at public sale, to the highest bidder, requiring from the purchasers one fourth down, and their notes or the balance payable in four years. To effect a distribution of these notes, the names of the payees were left blank, and afterwards filled by allotment. Meggison claimed two quarter sections, in conformity to a contract made with May, one of the company: but the committee disclaimed his authority, and would not ratify the contract to the full extent. They however, let him have one quarter section of the least value, at the advance agreed on, and sold him the other at eleven dollars, for part of the price of which, the note sued on was given. appears that Caller was a member of the company who sold him land at their sale, and took the note which is the foundation of the action against him for part of the purchase money. The testimony of Colonel Darrington shews, that the names of fictitious persons, and of those who were not land buyers, were put in as stockholders, contrary to the stipulations of the articles of association. These are the material facts, extracted from the vast mass of testimony given. The evidence was demurred to, and a judgment pro forma rendered for the defendants. To reverse which, writs of error are now prosecuted. It The first question which arises is, whether this association was contrary to public policy? In examining this point, I do not deem it necessary to inquire into the expediency or inexpediency of selling the lands of the United States, upon credit. If the association tended to thwart the object of the laws upon that subject, it may be admitted to have been contrary to public policy, however deleterious the laws themselves may have proven to the community. What then was the object of these laws? Evidently as I conceive, not only to secure to the government the minimum price, but also whatever the lands would command at public sale on the terms of credit proposed, and under the full operation of fair competition. But this combination had a direct tendency to put down such competition, and thus far was contrary to the policy of the statutes, and a fraud upon the rights of the United States. They then could have disaffirmed the sale, and declared it void, and they had a full opportunity of doing this. For the evidence shows that all these transactions were |