BUCKNEBV. STREET.
365
admitted further that the officers not only have the power, but it is their duty, to represent the corporation in litigation against, it.. Why, then, should not the result of such litigation, as much as the acts of the officers and agents of effect? the corporation in reference to contracts, be given its ordinary Oincinnati, March 1, 1883. J. d. HARPER.
BUOKNER 11. STREET.
(Oireuit Oourt, E. D. Arkansas L EQUITY.-MISTAKE.
October Term, 1882.)
The mutual mistake against which equity relieves. relates to something not within the contemplation of the parties in making their contract, and, therefore, not covered nor intended to he covered by it. If there is, no riiisrepresentaUon or fraudulellt concealment of a material fact or a mistake, consisting in an unconsciousness, ignorance, or forgetfulness of a material fact, the contract :must stand. 2. f}UFFICIENT TO VOID CONTU,ACT.
A contract may not be set aside on the ground of misrepresentation, unless it be of some material matter constituting some motive to the contract, something in regard to which reliance is placed by one party on the Other, and by which he ,was actually misled, and not merely a matter of opinion open to the inquiry and examination of both parties.' 3. SrECIAL W AURANTY DEED:
A deed with a special warranty against all persons claiming by, through, or under the grantor, cannot be extended to a general covenant of against all persons; and the ruleis that a party has no remedy on the ground of a mere failure of, title, if he has taken no covenants to secure the title, and there is no fraud in the case, 4. SAME-STATUTE OF LIMITATIONS.
In Arkansas the plea of the statute of limitations of five,years, to a note p;iven for the purchase money of lands, is not good in bar of a decree in rem for a sale of the lands; but it is a bal' to the recovery of a persona.l juagment against the defendant. ,I
In Equity. The plaintiff filed his' bill to. foreclose a vendor's lien on certain lands reeerved in the deed bywhioh heoonveyed the lands to the <leo fendant with oovenaut 'of warranty against those only,"olaimingor -to claim the same by, through, or:under" the. grant\>r. The filed, an answer and cross-bill identical in their statements. . The plaintiff has demurred to the oross-bill and excepted to the answer. Toosubatance of theoross.bill is that the lands in question,;were ownedtnltny years ago :by'oneFaulkner, who executed whatisknown as aUreaI estate bankstvck mortgage" on them; that Faulkner be-
366
,FEDERALBJijPORTER:.
came otherwise largely indebted to the bank,and finally conveyed the lands arid other property to the bank in satisfaction of his indebtednesstq)t;that Faulkner'1tlld' his attorney and others underthat this paid and extinguished the stood and' "stock mortgage" as well as his other indebtedness to the bank; that one Sessions afterwards purchased the lands from the bank or its representatives; that Sessions became indebted to the plaintiff and executed to him a mortgage on the lands to secure such indebtedness; that this mortgage was and the lands purchased at the foreclosure sale by the plaintiff, who sold them for their full value to the defendant; that Sessions, at the time he purchased the lands, was advised by his counsel, Mr. Pike, and by Faulkner that the stock mortgage was no longer a lien ,on the lands; that the plaintiff was also advised to the Same effect by his counsel, Mr. Garland; that the defendant was ,advised to the sani,e effect by Mr;Gallaghet, whom he specially retained to examine the title, and, by all the other parties named, including the plaintiff; that both plaintiff and defendant honestly believed the mortgage had been paid; that if defendant had not so believed he would not have purchased the lands; that the deed to the defendant was not a general warranty, and contained no covenant against incumbrances, because both parties believed a special warranty sufficient to carry a good title, and that defendant was advised to that effect by his attorney, Mr. Gallagher; that lately a bill has been filed by the state to foreclose this stock mortgage, and that 'same is now pending 'in the chancery court, and if the claim of the state is sustained she' will obtain a decree against the lands for a sum largely in excess of their value. Prayers for inj unction and for' special and general relief. M. Moore, for plaintiff. Martin £t Martin, for defendant.. CALDWELL, J. It is not alleged that the plaintiff was guilty of any fraud, willful misrepresentation, or concealment, or that the parties made any other or different contract than that disclosed by the face of the deed. Nor is it alleged that the plaintiff had any other or better sources of information than the defendant, either as to the fact or the law relating to the question as to whether the stock mort, gage was or not a lien on ,the la.nds. It remained on ,the public .records unsatisfied. Thedefeudant knew. this, He knew allf that could be learned about the facts of the transaction, by consulting those oognizantof,them, and he knew'.aU about the law to the matter that could be known by consulting and able counsel.
BUOKNEfl,
v.
STREE'r.
upon whose advice' he aeteddIi.' 'a, deed without covenants of warranty. It is not alleged that the plaintiff expressed any opinion on the question based or claimed to be based on 11is personal knowledge, or that the expression of his 'belief founded on information, the sources of which were equally open to defendant, was the inducement to the , purchase. He was a citizen of another state; he allquired,the lands, not by a purchase from free choice at private sale as an investment, but at judicial sale, whElll he was compelled to for better for i worse to save a debt. He acquired the lapds without warranty, and it is clear from the avermentl'iin the cross-bill that it was his purpose to convey them as they came to him; to sell whatever he quired by his purchase at the marshal's sale and no more; and toeJ;l" ter into no covenant that would render him liable beyond ,that. He seetned to realize the hazard of relying on the uncertain and fading recollections of men to overcome a solemn written record" and he knew that with lapse of every year tois hazard would be increased, and he probably also recognized the fact that the law IS not one of the exact sciences, and that the most learned counsel, as well as courts, sometimes err; and/having rib personal' knoWledge on -the subject, he prudently declined' tocovl:lna.n:t against' this incutnbrance a-pparent upon the public although it 'was stillEr with age and' was reported to be paid. The defendant,possessed of a. mOre san> guine temperament and less caution, or having more faith in the' memories of men and the advice of his counsel, chose 'to' take the risk. It is not alleged the stock mortgage 'is'lt lien npon the land. In· deed, it is in effect said that it is paid, but that, ne\Tertheless, it is possible the state will have a decree, and that in thll.t event the loss should faU on the plaintiff, because it would then be a eaSEl of nlUtuaf mistake. Mutual mistake ahout what V the terms of the contract, for that is in writing, and is conceded to express the agreement 'of the parties. Not about the existence of tne stock mortgage, for that was well known to both parties.' If the parties were mutually mistaken about anything, it wa.s as to whether or not the state It was because the. could enforce the plaintiff recognized that the information which' he, i1J.commdri' with the defendant, possessed on that subject might be erl'oiieOl1B, tMt he declined to warraritaigainst incu.:mbrances. Ifit shall turn out tliat the parties weremutrtally ,on this pdint, :it is a mutual mistake about a ma'tter which in its very nature possessed
868
FEDERAL REPORTER.
elements of uncertainty; and which party should take the risk and bear the loss, in the event of a mutual mistake on the point, was made a matter of convention between the parties, and found expression in the terms of the deed. The mutual mistakes against which equity relieves relate to something not within the contemplation of the parties in making their contract, and therefore not covered, nor intended to be covered, by it. , All the cases cited by the learned counsel for the defendant.have been examined. In all {)f them, where the facts are given, there was the element of misrepresentation or fraudulent concealment of a mao terial fact, {)r a mistake consisting in an unconsciousness, ignorance, or forgetfulness of a material fact. All of these elements are want. ing in. this case. "It is well settll1d that to set aside It cOlltracton the ground of ·misrepresentationit must be of something material constituting some motive to the contract, something in regard to which some reliance is placed by one party on the other, and by which he was actually misled; not a matter of opinion merely, equally open to the inquiry and examination of both parUes." v. Richards, 13 Pet. 26; Hill v. B1J,sh, 19 Ark. 522.
In Raymond v. Ra.ymond, 10 Cush. 134, the court say the grantee "took a deed with covenants ofa very limited character, and having thus taken certain express covenants of his vendor he must be reo stricted to them, and cannot ingraft upon them the more extended engagement found in a verbal promise made at the time of the exe· cution· of the deed. A deed with a. special warranty against all per· sons claiming by, through, or under the grantor cannot thus be ex· tended to a general covenant of warranty against all persons." And the rule is that a party has no remedy on the ground of a mere fail· ure of title, if he has taken no oovenants to secure the title, and there is no fraud in the case. Chesterman v. Gardner, 5 Johns. Ch. 29; G01J,lJeneurv. Elmendorf, Id. 79. There is a plea of the statute of limitations to one of the notes given for the purchase money. More than five and less than seven years elapsod between the maturity of the note and the institution of this suit. The plea is not good in bar of a decree in rem for a sale of the lands. Hall v. Denkla, 28 Ark. 507; Birnie v. Main, 29 Ark. 591. But it is a bar to the recov.ery of a personal judgment again3t the defendant. In the course of the opinion in v. Main, supra" there is an expression from which it might be inferred that the court held the law on the last point to be otherwise. Such a doctrine is so obviously
UNITED STATES V. MISKELL.
869
unsound and so clearly against all authority that we must suppose that, if the expression referred to is susceptible of such So construction, it is the result of inadvertence or clerical misprision, and does not express the deliberate judgment of the court. The demurrer to the cross-bill and the exceptions to the answer, except so much thereof as pleads the statute of limitations in bar of a personal judgment on one note, are llustained.
UNITED STATES V. MISKELL.-
(Circuit Oourt, D. Kentucky. March, 1883.) MAKING OR USING FALSE AFFIDAVIT TO OBTAIN PAYMENT 01' CL!.W..,..8EOTIOlf
5438, REV. ST. To support a conviction under section 5438, Rev. St·· for making 01' using a false affidavit for the purpose of obtaining the payment or approval of certain claims against the government, it must be shown, not onlrthat the .affidavit was false. but also that the claim, the payment of which was sought to be obtained by thetlse of the affidavit, was false, fictitiousj or fraudulent.
Indictment.
Motion for new trial.
Geo. M. Thomg,s, Dist. Atty., for the Government. Samuel McKee; for defendant. BAXTER,
The act under which the indictmeut in this case was framed (section 5438, Rev. St.) provides that "every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining, or aiding to obtain, the payment or approval of such claim, makes, uses, or causes to be made or used, any false affidavit, etc., knowing the same to contain any fraudulent or fictitious statement," etc., shall be punished, etc. The indictment follows the statute. It contains one count for making and presenting, or causing to be made and presented, for payment a false, fictitious, and fraudulent claim; etc., and another c.ount for having made and used a false affidavit, etc., for the purpose of obtaining the payment of a false, fictitious, and fraudulent "Reported by J. O. Harper, Esq., of the Oincinnati bar.
J.
.
v.15,no.G-24