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cannot be brought within the rule of application to a purpose as nearly as possible resembling that denounced. Nor is there here any counterpart in Congressional power to the exercise of the royal prerogative in the disposition of a charity. If this property was accumulated for purposes declared illegal, that does not justify its arbitrary disposition by judicial legislation. In my judgment, its diversion under this act of Congress is in contravention of specific limitations in the Constitution; unauthorized, expressly or by implication, by any of its provisions; and in disregard of the fundamental principle that the legislative power of the United States as exercised by the agents of the people of this republic is delegated and not inherent.






No. 1307. Submitted April 21, 1890.– Decided May 19, 1890.

The facts stated by the court constituted a valid contract, mutually bind

ing on the parties, for the sale to the United States of a tract of land in Michigan for purposes of fortification and garrison, as specified in the

act of July 8, 1886, 24 Stat. 128, c. 747. In the absence of the Secretary of War the authority with which he was in.

vested by that act could be exercised by the officer who, under the law,

became for the time Acting Secretary of War. Under the Michigan statute of frauds it is not essential that the description

in a memorandum for the sale of real estate should have such particulars and tokens of identification as to render a resort to extrinsic evidence needless when the writing comes to be applied to the subject matter; but it must be sufficient to comprehend the property which is the subject of the contract, so that, with the aid of extrinsic evidence, without being contradicted or added to, it can be connected with and applied to

the tract intended, to the exclusion of other parcels. A complete contract, binding under the statute of frauds, may be gathered

from letters, writings and telegrams between the parties relating to its subject matter, and so connected with each other that they may fairly be said to constitute one paper relating to the contract.

Statement of the Case.

If an offer is made by an owner of real estate in writing to sell it on speci

fied terms, and the offer is accepted as made, without conditions, without varying its terms, and in a reasonable time, and the acceptance is communicated to the other party in writing within such time, and before the withdrawal of the offer, a contract arises from which neither party can

withdraw at pleasure. When, under a contract to sell real estate, the vendor delivers to the ven

dee a deed of conveyance for the purpose of examination, its recitals, if the memorandum of sale is not fatally defective under the statute of frauds, are competent for the purpose of showing the precise locality of

the parcel referred to in the memorandum. When one assumes by his deed to convey a title to real estate, and by any

form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire and assert an adverse title, and turn his

grantee over to a suit upon the covenant for redress. In an action of ejectment, involving merely the legal title, the plaintiff

is entitled to recover upon showing a good title as between him and the defendant.

EJECTMENT. The case, as stated by the court, was as follows:

This action of ejectment was brought to recover certain lands in the village of Sault Sainte Marie, Chippewa County, Michigan, of which the United States claims to be the owner in fee, and the possession of which is alleged to be wrongfully withheld from the government by the defendant, Thomas Ryan. They are described in a deed from Ryan and wife to the United States, of date December 18, 1886, and recorded in the proper local office on the 25th of May, 1887. At the conclusion of the evidence the jury, under the direction of the court, returned a verdict for the government, and a judgment was entered against the defendant. The present writ of error brings that judgment here for review. The principal question to be determined is whether the title to the premises in dispute ever passed from the defendant to the government. It is claimed that the negotiations in reference to the sale of these premises never resulted in a binding contract between the United States and the defendant; that the deed of December 18, 1886, although signed and acknowledged by the defendant and his wife, was delivered to the officers of the government, pending such negotiations, only for examination,

Statement of the Case.

and was not placed upon record with the assent, express or implied, of the grantors; that the proposal made in Ryan's name for the sale of the property was withdrawn by him before it was accepted, and before the above deed was filed for record ; and that, therefore, no title passed to the United States. Each of these propositions is controverted by the government.

The facts upon which these several propositions depend are very numerous, and are to be gathered principally from letters and telegrams between the parties and their agents. They are, substantially, as follows:

By the third section of an act of Congress, approved July 8, 1886, 24 Stat. 128, c. 747, the Secretary of War was authorized to sell the military reservation known as Fort Brady, in the village of Sault Sainte Marie, in the State of Michigan, except certain portions thereof. By the fourth section he was authorized to purchase grounds in or near the same village, suitable and sufficient for fortification and for garrison purposes, and to construct thereon the necessary buildings, with appurtenances, sufficient for a four-company military post, to be known as Fort Brady, in accordance with estimates to be prepared by the War Department; and the sum of one hundred and twenty thousand dollars was appropriated to enable the Secretary to comply with the provisions of the act. That section contained the proviso “that the title to lands authorized to be purchased under the fourth section of this act shall be approved by the Attorney General.” It was declared by the sixth section that section three should not take effect until the purchase of the new site provided for in section four should have been effected.

By direction of the Secretary and in execution of the above act, a board of officers of the army was constituted, to meet at Fort Brady, Michigan, on the 7th of September, 1886, or as soon thereafter as was practicable, for the purpose, among others, of selecting for purchase suitable and sufficient grounds as indicated in the fourth section of the above act of Congress. The board was directed to report by telegraph to the Adjutant General with its recommendation for the approval of the Sec

Statement of the Case.

retary of War, as soon as a new site was selected. Shortly before the day fixed for its convening, Ryan and his attorney, Mr. Cady, met in Detroit, and during their interview in that city some conversation was had between them in relation to the meeting of this board, and the purposes for which it was to be convened. It appears that for a number of years prior to that date this property had been mentioned in military circles and among citizens as a possible site for a fort.

On the 7th of September, 1886, Cady telegraphed from Sault Sainte Marie to Ryan at Detroit, Michigan: “Telegraph price to me of southwest quarter of southwest quarter of section 6 and southeast quarter of southeast quarter of section 1 for Fort Brady. Answer immediately.” To this telegram Ryan responded on the same day under his own signature: “ Twelve thousand dollars.” On the next day Ryan, by Cady, telegraphed to the board convened by the Secretary of War: “I am instructed by Mr. Ryan to offer the S. W. 1 of S. W. of sec. 6 and the S. E. 1 of the S. E. 1 of sec. 1, (both in towns. 47 N. of ranges 1 E. and W.), containing eighty (80) acres, more or less, if sold together, for the sum of twelve thousand dollars ($12,000). Although not authorized yet, I assume that Mr. Ryan would sell any portion of said lands at a price in ratio to the above (i.e., $150 per acre).” To this telegram was appended a postscript : “P. S. The above offer is subject to the opening of Easterday Avenue along the south line.” Under date of September 9, 1886, the president of the board of officers telegraphed to the Adjutant General at Washington : “ The board recommends for purchase the two adjoining fortyacre tracts on the hill, half mile due south of west end of canal, divided through the centre of length by meridian of Sault Ste. Marie, aggregating about seventy-five acres ; price, twelve thousand dollars." General Drum, Acting Secretary of War, under date of September 11, 1886, made the following endorsement on this telegram : “ Under ordinary circumstances action in this case would have been deferred until the return of the Secretary of War or the Lieutenant General. In view, however, of the importance of the selection of this site, and of the fact that inaction here would delay further action by the

Statement of the Case.

board, which is now in Michigan awaiting reply, the recommendation of the board as contained in the within telegram is approved. The board will be advised by telegraph of such approval.” On the same day General Kelton, Acting Adjutant General, telegraphed to Lieutenant Colonel Abbot, president of the board: “Despatches nine (9) and eleven (11) instant received. The Secretary of War approves

the recommendation of board for purchase of two (2) tracts designated at the price of twelve thousand dollars ($12,000). Acknowledge receipt. No further instructions." This telegram was received; for on the 11th of September, 1886, Lieutenant Colonel Abbot, the president of the board of officers, wrote from Fort Brady to Ryan at Sault Ste. Marie: “You are hereby notified that the Acting Secretary of War has approved the recommendation of the board of officers now in session at this post, that your proposal dated September 8, 1886, be accepted, viz., for the sale of certain tracts of land described in your proposal as follows : “The S. W. 1 of the S. W. I of sec. 6 and the S. E. 1 of the S. E. } of sec. 1, subject to the opening of Easterday Avenue along the south line, for twelve thousand dollars.' This letter was first delivered to Mr. Cady, and was by him delivered to Ryan within three or four days after it came to his hands. The receipt of it by Ryan is not disputed.

On the 30th of September, 1886, the Acting Secretary of War wrote to Colonel Poe, one of the board : “The recommendation of the board, approved by the department, selects a tract of about 75 acres of land at Sault Ste. Marie, owned by Thomas Ryan, as the new site for Fort Brady, at the proposed price of $12,000. Papers on file show Mr. Ryan's address to be Michigan Exchange Hotel, Detroit. Please take the proper steps without delay to collect and forward to this department the necessary deeds and other title papers for the conveyance of this land to the United States for examination by the Attorney General, as required by law. General Orders 47, H’dq’rs of Army, A. G. O., of 1881, publishes regulations of the Department of Justice concerning such title papers, a copy of which will be forwarded to you by mail.” Under

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