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thorize the recording of a deed, and the only acknowledgment was before the alteration. Therefore it was filed without authority, was not entitled to registration, and, as we have said, had no effect as against the petitioner. Act of 1900, Tit. 1, $ 15. Title 3, 8$ 82, 95. 31 Stat. 327, 503, 505. Code, Part III, § 15. Part V, 88 82, 94. Alaska Exploration Co. v. Northern Mining & Trading Co., 152 Fed. Rep. 145. 81 C. C. A. 363.
LEARY, ADMINISTRATRIX OF LEARY, v.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE
No. 508. Argued April 29, 30, 1912.—Decided May 13, 1912.
In a suit brought by the United States to charge the defendant with a
trust in respect to funds obtained by another through fraud against the United States, held that the personal representative of a third party claiming an interest in the funds under an agreement indemnifying him as bail of the party fraudulently procuring such funds was,
under the circumstances of this case, entitled to intervene. A contract that certain specific assets in the hands of a trustee should
be held as security for a specific contingent claim is necessarily express, and is none the less so if conveyed by acts importing it than if
stated in words. Where the intervenor has not legal title and is not claiming against an
admitted prior equity as a purchaser without notice, allegations of ignorance of facts not admitted and not finally established are not
essential. Bail no longer is the mundium, and distinctions between bail and
suretyship are nearly effaced. Quære; whether a contract to indemnify bail which is legal by statute in New York where made is void as against the public policy of the United States.
Argument for Appellant.
In this case, as the intervenor did not know of the suit or the position
taken by defendant, who was legally her trustee, she should not
be held guilty of laches. 184 Fed. Rep. 433, 107 C. C. A. 27, reversed.
The facts are stated in the opinion.
Mr. J.T. Coleman, with whom Mr. David McClure and Mr. A. E. Strode were on the brief, for appellant:
An express contract to indemnify a person on his becoming bail for a prisoner charged with crime is not illegal in violation of public policy. United States v. Ryder, 110 U. S. 729, distinguished. That case only holds that where a recognizance in a criminal case is forfeited and paid by the bail, there is no implied contract on the part of the criminal to refund the money to the bail; but it also holds that an express contract to indemnify the bail in such case may be sustained.
In the bill of intervention in this case an express contract was averred. See Simpson v. Robert, 35 Georgia, 183; Rev. Stat., $ 1014; United States v. Rundlett, 2 Curtis, 44; United States v. Ewing, 140 U. S. 142; United States v.. Horton, Fed. Cas. No. 15,393; United States v. Evans, 2 Fed. Rep. 147; United States v. Case, 8 Blatchf. 250.
In the State of New York, where the contract between Leary and Green was made, a contract to indemnify a bail is not contrary to public policy. Maloney v. Nelson, 144 N. Y. 189; S. C., 158 N. Y. 355.
The public policy of a State, with respect to contracts made within it and sought to be enforced therein, is obligatory upon the Federal courts whether acting in equity or at law. Missouri &c. Trust Co. v. Krumseig, 172 U. S. 351.
Indeed, there is no national public policy in cases like the one under consideration. Congress has adopted the statutes, and therefore the policy, of the several States in reference to bailing persons charged with crime, and has
Argument for the United States.
assimilated all proceedings in such cases to the usual proceeding in the State in which the person is let to bail.
For one accused of crime to solicit bail is not immoral. For an accused person to offer indemnity to another to become his bail can hardly be illegal. If a stranger in a strange land could not offer such indemnity, he would, in most cases, have no alternative but to submit to deprivation of his liberty without trial.
Mr. Marion Erwin, Special Assistant to the Attorney General, with whom The Solicitor General was on the brief, for the United States:
The petition is without jurisdictional merit, and the appeal is for delay only.
The property in controversy equitably belonged to the United States, from a time antecedent to when it is claimed that Leary acquired the rights in the property relied upon in the petition; the petitioner failed to plead that such rights had been acquired by a bona fide purchaser.
It appears from the averments of the intervention, that at the time of the alleged agreement of January 20, 1902, relied upon by the petitioner to create an equitable lien in the stocks in controversy, the stocks were and for months had been held by and in the name of Kellogg for the sole benefit of Greene, and that there was no delivery or change of possession, and it was not provided in the agreement that Leary should ever be given possession, but only that Kellogg should, in the event of Leary's being held liable on the bond, apply the stocks to the payment of Leary's debt, and with the right reserved in Greene to withdraw said securities from Kellogg's possession and substitute others in their place. The facts pleaded do not create a legal or equitable lien on the stock in favor of Leary or constitute an assignment of the fund even in equity. Christmas v. Russell, 14 Wall. 70; Trist v. Child, 21 Wall.
Argument for the United States.
224 U. S.
447; Casey v. Cavaroe, 96 U. S. 467; Third Nat. Bk. v. Insurance Co., 193 U. S. 581; Williams v. Ingersoll, 89 N. Y. 508; Thomas v. Railway, 139 N. Y. 163.
A refusal to grant leave to intervene is not ordinarily considered as finally adjudicating the rights of the parties on the merits. The petitioner may come back with a new petition or ancillary bill, curing defects of pleading and asserting rights not substantially asserted in the former petition.
This case does not fall within the exception to the rule where a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. Credits Commutation Co. v. United States, 171 U. S. 311.
Petitioner appealed from the order made on the petition as first presented, without attempting to amend or cure the defects, and by so doing waived all right to amend and made the adjudication of her rights in the subject-matter of the petition final. The Three Friends, 166 U. S. 1.
The request to amend here comes too late. Nat. Bank v. Carpenter, 101 U. S. 567.
This court is without jurisdiction to allow the amendments, or to entertain an appeal, for the mere purpose of allowing amendments not offered in the trial court, where neither the pleadings nor evidence in the trial court states a case.
Failure to aver bona fide purchase is fatal. Smith v. Gale, 144 U. S. 519; Coffey v. Greenfield, 62 California, 602; 11 Ency. Pl. & Practice, 506; Minot v. Mastin, 37 C. C. A. 238, 95 Fed. Rep. 839.
An intervenor must set out his demand as clearly and explicitly as a plaintiff. Clapp v. Phelps, 19 La. Ann. 461; Davis v. Sullivan, 33 N. J. Eq. 569; Empire Dist. Co. v. McNulta, 77 Fed. Rep. 703; Buel v. Farmers' L. & T. Co., 95 Fed. Rep. 839-842.
Argument for the United States.
It is not enough to say that Leary's claim is superior to the Government's claim, for that is a mere conclusion to be drawn or not drawn from the facts well pleaded. Gould v. R. R. Co., 91 U. S. 526.
The failure of an intervenor to make proper averments excusing gross laches apparent on the face of an intervention, as in the case at bar, is fatal. Lansdale v. Smith, 106 U. S. 391; Smith v. Gale, 144 U. S. 509; O'Brien v. Wheelock, 184 U. S. 450; Buel v. F. L. & T. Co., 44 C. C. A. 277; Trust Co. v. Toledo &c., Ry., 82 Fed. Rep. 642.
The contract as one of indemnity for bail was against public policy.
Uncertain and ambiguous averments in pleadings must be construed most strongly against the pleader. The alleged contract of January 20, 1902, must be taken as asserting only an implied contract of a principal to indemnify bail in a criminal case. If so, the suit is fatally defective. Ryder v. United States, 110 U. S. 729, 737; United States v. Simmons, 47 Fed. Rep. 577; Herman v. Jeunchner, 16 Q. B. Div. 561;3 A. & E. Ency. Law, p. 684; 16 A. & E. Ency. Law, p. 172.
Whatever may be the public policy of particular States as to the administration of the criminal laws, the public policy of the United States as declared by the Federal courts must control in the case at bar.
Prior to the enactment of the “Cash Deposit Law,” the public policy of New York was held to be against such indemnification of bail by the principal in a criminal case, but not against indemnification by third parties. People v. Ingersoll, 14 Abb. Pr. (N. S.) 23, but see New York Code Crim. Proc., $ 586.
This legislation changed the public policy of the State, so that a contract of a principal to indemnify bail is no longer against the public policy of the State. Maloney v. Nelson, 158 N. Y. 355.