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December following. The title had not, therefore, passed to the Bear Lake Company when Corey Bros. & Co. commenced their work. *Nor is there any priority given to the mortgage, as claimed by the appellants, by reason of the provision contained in that portion of section 19 of the act of 1890, which reads as follows:

"All such liens shall relate back to the time of the commencement to do work or to furnish materials, and shall have priority over any and every lien or encumbrance subsequently intervening, or which may have been created prior thereto, but which was not then recorded, and of which the lienor under this act had no notice. Nothing herein contained shall be construed as impairing any valid encumbrance upon any such land, duly made and recorded be fore such work was commenced or the first of such materials were furnished."

The very question in issue is whether the mortgage was a valid incumbrance upon any after-acquired land prior to these liens. Inasmuch as the title to the right of way did not pass until the completion of the work, we hold the mortgage was not a valid incumbrance upon such right of way until that time, and that the title came to the Bear Lake Company burdened with the lien claimed by the lienor, which attached to the property at the very moment of, and simultaneously with, the vesting of such title in the company, and in priority to the lien of the mortgage.

This principle is in entire harmony with that laid down in the already cited cases of Railroad Co. v. Cowdrey, 11 Wall. 459, and Toledo, D. & B. R. Co. v. Hamilton, 134 U. S. 296, 10 Sup. Ct. 546, and with the cases therein referred to. In neither of the above-mentioned cases did the title to the property come into the hands of the company burdened with any lien. Most of the property in the first abovecited case came to the company before any work was done, and a small portion only was purchased by it after the work was done; and it was held that the lien of the mortgage upon the property, as after acquired, was superior to that of the constructor who did the work. His work did not transfer the title, or create the condition upon which the vesting of the title could take place in the mortgagor, and consequently there was no basis for the claim that the property came to the mortgagor burdened with the lien. In the Toledo Case the dock was built upon property to which the mortgagor had a good, equitable title, and which was covered by the mortgage, just the same as if the title were a legal one; and it was held that the dock became subject to the lien of the mortgage, as prior and superior to any lien of the mechanics for construction. It was urged in that case that, at the time the mechanic's lien was claimed to have been created. the legal title to the property sought to be affected was not in the railroad company, but was in one George W. Ballou, and therefore the mortgage of the property by the railroad company created no legal lien, and al

though, by the decree of foreclosure, the legal title was transferred to the mortgagor, yet it was transferred subject to the burden of the mechanic's lien. The court held that the mortgagor had the equitable title to the property before foreclosure, and that the mortgage given by the mortgagor covered property to which it had an equitable title, as well as property to which it had a legal title. In the case at bar the mortgagor never had any title at all, legal or equitable, until after the work had been performed by the constructors, and only then by virtue and through the means of such work.

This case bears great similarity to that of Botsford v. Railroad Co., 41 Conn. 454, the principle of which case was approved in 134 U. S. 296, 10 Sup. Ct. 546, supra. The mortgage executed by the company in the Connecticut case covered after-acquired property. After the execution of the mortgage it entered into an agreement with the owner of land by which the owner agreed to thereafter convey the land to the company upon condition that the depot of the company should be established thereon, and other things done in connection therewith. The court held that the agreement amounted to a conditional sale, and that no title to the property passed to the railroad company unless and until it performed the conditions Hence it was held that the lien acquired by the constructor of the depot, who was employed by the railroad company for that purpose, attached to the land, and that when the title subsequently came to the rail. road company by reason of the performance of the conditions by it, the land came burdened with the lien upon it in favor of the constructor of the depot, and such lien was therefore superior to the lien of the mortgage.

It is said that in any event the title which finally vested in the Bear Lake Company by virtue of the completion of the work, as claimed by the respondents, relates back to the time when possession of the land over which the right of way existed was first taken, and that such possession was taken by the Bear Lake Company prior to any work being done by either the plaintiff Garland or by the defendants Corey Bros. & Co., and the title thus became subject to the lien of the mortgage before the work was done by the lienors. This doctrine of relation, by which it is claimed that the lien of the mortgage attached to the right of way prior to the lien of the constructor, is a fiction only. It is indulged in for the purpose of thereby cutting off intervening adverse claims of third parties against the right or title set up and acquired by the first possessor. It will not be indulged in for the purpose of thereby effecting an injustice, by subjecting the right of way to the prior lien of a mortgage. when the existence of the title to the right of way in the Bear Lake Company was made possible only after and by the labor of the lienors. In such case the actual fact will be considered, and not the fiction.

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It is also said that the mortgagee occupies a position superior in equity to that of the Corey firm, because the mortgage was executed and on record a long time before the firm did any work upon the ditches, and it must have known, or, at any rate, notice from the record will be imputed to the firm, that the mortgage lien was in existence. The answer to this position is that, under the law as above stated, the firm knew that, prior to the completion of the work by it, the Bear Lake Company would have no title, and the mortgage would not be a lien upon the property, and that when the work was completed the title would pass to the Bear Lake Company burdened with the lien of the firm, and such lien would be superior to that of the mortgage. To one occupying the position of these lienors, the mortgage was not in existence. Upon the same principle, the mortgagee would know that it could acquire no lien on *this property superior to that of the lienors, and that the title to the property created by the lienors would come to the Bear Lake Company burdened with their lien. It is plain that in this light the equity of the lienors is superior to that of the mortgagee, and their lien should, if possible, be preferred.

The general principle upon which the lien of Corey Bros. & Co. upon the right of way over the public lands is claimed as being prior to that of the mortgage also applies to and covers the case of the land procured by the Bear Lake Company from Kerr, and mentioned in the foregoing twenty-ninth finding of fact. It was a conditional gift by Kerr to the company of the right of way, to take effect and be valid upon the construction of the canal through the lands of Kerr. As to the portion of the land which was obtained by purchase by the Bear Lake Company at various times from individual proprietors after May 1, 1890, the finding is too general upon which to predicate error calling for a reversal of the whole judgment. The party alleging error should clearly show it, and. where it is of a kind that ought not to carry a reversal of the whole judgment because of it, he should in that case show the amount of the error, and the extent to which it affected the judgment. Here the case is barren of any finding as to the extent of the purchase from private individuals, and whether the purchases were made prior to the work being done, or after the same had been performed. Interpreting the thirtieth finding of the court upon this subject as being one of fact, we should say the purchase was not fully accomplished, nor was the title finally transferred, until after the work had been done. The thirtieth finding is as follows: "All the right of way of the Bear Lake & River Company, as described in finding 19, was acquired by said Bear Lake &

River Waterworks & Irrigation Company after the mechanic's lien of the plaintiff Wiiliam Garland and the mechanic's lien of the defendants Corey Bros. & Co. attached to the same." The appellants criticise this finding as a conclusion of law. It is made by the court as one of fact, and it may be there is some matter of fact mixed with a legal conclusion. At any rate, the whole matter is left in some uncertainty as to the exact* facts relating to the purchase of the right of way after May 1, 1890, and as to the extent of such purchases from individuals, and as to the conditions upon which the purchases were made.

They may have been made under such cir cumstances as to bring them directly within the principle of the case last cited. If so, the lands would be subject to a lien to the same extent as the lands otherwise acquired.

We will not, in such case, indulge in any presumptions unfavorable to the judgment, and for the purpose of reversing it, unless they are natural and probable, and such as ought to be drawn from the facts actually found by the court below. We do not find this to be the case here.

As another answer to the claim of Corey Bros. & Co., the appellants assert that if the Bear Lake Company were not the owner of the right of way over or through the public lands, or lands of Kerr or of the other individuals, until after the completion of the work, then, of course, it was not owner thereof at the time when the contract with Corey Bros. & Co. was entered into, and in that case they would be entitled to no lien under the act of March 12, 1890

The first section of that act provides "that whoever shall do work or furnish materials by contract, express or implied, with the owner of any land, to any amount," shall be entitled to a lien. The same section also provides that for the purposes of the act "any person having an assignable, transferable or conveyable interest or claim in or to any land, building, structure, or other property mentioned in this act, shall be deemed an owner."

We think the Bear Lake Company was such an owner as comes within the meaning of the statute of 1890 providing for a lien. Although without a legal or an equitable title until the work was done, yet the Bear Lake Company. when the work was completed, became such owner, and in the mean time, and after the execution of the contract with Corey Bros. & Co. and with the plaintiff Garland, it occupied such a position with regard to the property as brings it within the equity of the statute for the purpose of the lien for work done, and we* think such lien, when the work was completed and the statement of claim filed, was superior to the lien of the mortgage.

Our conclusion is that the whole judgment should be affirmed.

(164 U. S. 49)

UNITED STATES ▼. KURTZ.
(October 26, 1896.)
No. 530.

CLERK OF COURT-FEES-COMPUTATION OF FOLIOS
-DOCKET FEE-RECORD OF JURORS-

PAYMENT OF Money.

1. The provision of Rev. St. § 828, entitling the clerk to a fee of 15 cents per folio, does not authorize him, in computing his fees for making up a record, to treat each document, judgment, or order separately, for the enumeration of folios, instead of counting the folios of the record as one instrument continuously from beginning to end.

2. The clerk's right to a docket fee, under Rev. St. § 828, "where issue is joined," attaca. es at the time such issue is in fact joined, and is not lost by the subsequent withdrawal of the plea constituting the issue.

3. Rev. St. § 828, restricting the docket fee to one dollar in a case which is dismissed or discontinued, applies only in case of dismissal or discontinuance before issue has been joined.

4. Where the practice in the court requires the clerk to make a record of the names of jurors, with their residences, or to do any other incidental work in connection with the names of the jurors drawn, he is entitled to charge for that, as for making a record.

5. The statutory fee of 1 per cent. "for receiving, keeping and paying out money in pursuance of any statute or order of court," does not deprive the clerk of fees to which he would have been entitled if the money had been kept and disbursed by another officer.

Appeal from the Court of Claims.

This was a petition by Kurtz, who was clerk and commissioner of the circuit court for the Eastern district of Wisconsin, for fees alleged to have been earned by him in both capacities.

clerk charged a fee of 15 cents per folio, in pursuance of the eighth subdivision of Rev. St. § 828, which entitles him to this amount "for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record, return or report." The only objection was to the clerk's method of computing folios by treating each document, judgment, order, and direction of the court as a separate instrument for the enumeration of folios, instead of counting the folios of the record as one instrument continuously from beginning to end.

The assignment is well taken. By his method of computation the clerk charges for each entry, many of which are less than a dozen words in length, as for 100 words. This may be proper where the charge is made under the first clause of the paragraph, "for entering any return, rule, order," etc., upon the journal of the court; but the evident intent of the statute is that, for the pur pose of making up the record as a history of the case, the entire record shall be taken as one instrument.

2. The next item to which the government objects is to the allowance for making dockets, indexes, taxing costs, etc., in nine cases, in which defendants at first pleaded not guilty, and at a later day, with no steps or proceedings intervening, withdrew such plea, pleaded guilty, and judgment was entered upon such plea.

In this connection, section 828 provides as follows:

"For making dockets and indexes, issuing venire, taxing costs and all other services, on the trial or argument of a cause where issue is joined and testimony given, three dollars."

The case resulted in the allowance of a large number of disputed items, and a final Judgment in favor of the petitioner in the sum of $165.10. 26 Ct. Cl. 630. The government appealed, and assigned as error the allowance of certain items specifically set Joined, but no testimony is given, two dolforth in the opinion.

Asst. Atty. Gen. Dodge, for the United States. C. C. Lancaster, for appellee.

Mr. Justice BROWN delivered the opinion of the court.

1. The first assignment of error is taken to the allowance to the petitioner of clerk's fees for recording in the final record books the entries and proceedings in various criminal cases, consisting of the indictment or information, warrants, recognizances, judgments, and other proceedings, as required by rule of court, at 15 cents per folio. It seems that these records were made by him in compliance with a rule of the circuit court adopted November 3, 1890, requiring the clerk to keep a criminal final record book, in which should be recorded "the indictment or information, and all recognizances, warrants, process (except writs of subpoena and proceedings thereunder), judgments, and other | proceedings in every prosecution for violation of the criminal laws of the United States." For making up these records the

For like services "in a cause where Issue is

lars."

For like services "in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue, one dollar."

The argument of the government is that as the plea of not guilty, which constituted the issue, was withdrawn, and a plea of guilty subsequently entered, upon which judgment was rendered, the case should be treated as one in which no issue was ever joined, and that the condition in which the case stands when finally disposed of is the criterion for the fee to be charged; in other words, if the case be finally disposed of upon a plea of guilty, regardless of the issue previously joined, the clerk is only entitled to the fee which would have been allowed him if no issue had ever been joined.

While we have held that a docket fee is not taxable until the case is finally disposed of (U. S. v. McCandless, 147 U. S. 692, 694, par. 3, 13 Sup. Ct. 466), we are still of the opinion that the clerk's right to the docket fee as upon issue joined attaches at the time such is

sue is in fact joined, and is not lost by the subsequent withdrawal of the plea which constituted the issue. Even when the clerk is allowed three dollars, there is no requirement that judgment shall be entered upon the issue, but only that testimony shall be given; the only difference between the first and second paragraphs being that testimony must be taken to entitle the clerk to three dollars, while, where none is taken, he is entitled to two dollars. If the position of the government be sound, it would seem to follow that if the defendant plead not guilty, and a jury trial be had, and the jury disagree, or before verdict actually rendered the defendant withdraw such plea and enter a plea of guilty, the clerk is entitled to no more than he would have been if the defendant had pleaded guilty upon first being arraigned. We think this could not have been the design of the statute.

3. The next item differs from the last only in the fact that after issue was joined the case was subsequently discontinued upon nol. pros. entered. Literally it falls within the third paragraph of a cause "dismissed or discontinued," but, we think that clause applies only to those cases where the case is dismissed or discontinued before issue has been joined, and that, as in the previous case, the clerk's right to the larger docket fee attaches at the time issue is joined. There is somewhat more doubt as to the construction of this paragraph than the last, but upon the whole we think that it was the design of the statute to allow the larger docket fee in every case where issue was joined in the course of the proceedings.

4. Objection is made to a folio charge for making a record of the names of jurors, with their residences, as drawn by the jury commissioner. In the case of U. S. v. King, 147 U. S. 676, 678, 13 Sup. Ct. 439, we held that the statute creating jury commissioners (21 Stat. 43) did not make the clerk of the court such commissioner, although it required him to act with the commissioner in selecting the names of jurors, and placing them in the jury box, and that a new duty was thereby imposed upon him as clerk, for which no compensation was provided by law. The question in that case was whether the clerk was entitled to a per diem fee of five dollars for services in selecting jurors, in analogy to the compensation allowed to the jury commissioner, and it was held that he was not. But it was not intended in that case to hold that the clerk was bound to forego any of his ordinary fees as clerk simply because he was aiding the jury commissioner in the performance of a new duty, and it seems to us that if the practice in that court requires the clerk to make a record of the names of jurors, with their residences, or to do any other incidental work in connection with the names of the jurors drawn, he is entitled to charge for that as for "making a record." It does not appear that a list of the jurors, with their

residences, is strictly a part of the records of the court; but assuming that such list is required to be made by the order or the practice of the court, and posted up in the clerk's office, or preserved in the files, and no other method of compensating the clerk is provided, we think it may be properly charged for by the folio.

5. The final objection of the government is made to an item for entering an order of court, directing the clerk as to what disposition to make of the money received for fines in certain cases, and for filing 13 certificates of deposit of the bank for tines paid in to the credit of the treasurer of the United States. The claim of the government is

that the statutory fee of 1 per cent. "for receiving, keeping and paying out money in pursuance of any statute, or order of court" covers all incidental services in this connection, including the entry of all orders for the payment of the money, and a filing of all receipts given by the persons to whom it is paid.

We think, however, the commission of 1 per cent. was intended to compensate the clerk for his services and responsibility in the receipt, the safe-keeping, and the proper disbursement of the money, and was not intended to deprive him of fees to which he would have been entitled if the money had been kept and disbursed by another officer. As the charge seems to be equitable, and has the sanction, not only of the court of claims, but of several other courts, we are not disposed to disturb it. Goodrich v. U. S., 42 Fed. 392, 394; Van Duzee v. U. S., 48 Fed. 643, 646.

It results that, for the error of the court of claims in respect to the first item, its judgment must be reversed, and the case remanded for a new judgment in conformity to this opinion.

(164 U. S. 42)

UNITED STATES v. GILLIAT.
(October 26, 1896.)
No. 535.

FRENCH SPOLIATION CLAIMS - BENEFICIARY-As-
CERTAINMENT BY COURT OF CLAIMS.

The provision in Act Aug. 23, 1894 (28 Stat. 487), providing for the ascertainment by the court of claims, upon sufficient evidence, of the person entitled to receive the amount appropriated to be paid to John A. Brimmer. Jr., on account of a French spoliation claim under Act March 3, 1891 (26 Stat. 862. 900), did not authorize any appeal from the decision of the court of claims on that question.

Appeal from Court of Claims.

This is one of the claims originating in the depredations committed by French cruisers upon the commerce of American citizens prior to the year 1800, commonly called "French Spoliation Claims." Pursuant to the provi sions of the act of January 20, 18S5 (23 Stat 283), the claim mentioned in this proceeding (among many others of a like nature) was pre

*

to

sented to the court of claims, and that court made an award, advising the payment of the claim, which was reported to congress, pursuant to the act above mentioned; and congress, by the act of March 3, 1891 (26 Stat. 862), appropriated money (section 4, p. 897) "to pay the findings of the court of claims on the following claims for indemnity for spoliations by the French prior to July 31, 1801" (among others, on page 900): "On the ship Hannah, Richard Fryer, master, namely, John A. Brimmer, administrator of John Gilliat, deceased, $35,840.44." By the last clause in the act (page 908), congress added a proviso as a condition to the payment of the awards mentioned therein, which reads as follows: "Provided, that in all cases where the original sufferers were adjudicated bankrupts the awards shall be made on behalf of the next of kin instead of to assignees in bankruptcy, and the awards in the cases of individual claimants shall not be paid until the court of claims shall certify to the secretary of the treasury that the personal representatives on whose behalf the award is made represent the next of kin, and the courts which granted the administrations, respectively, shall have certified that the legal representatives have given adequate security for the legal disbursement of the awards."

John A. Brimmer, the administrator to whom, by the act of 1891, the appropriation was ordered to be paid upon the condition above recited, was unable to comply with the same; and congress, by the act of August 23, 1894 (28 Stat. 487), enacted "that the sum of $35,840.41, appropriated to be paid to John A. Brimmer, Jr., administrator of John Gilliat, deceased, in the act entitled 'An act making appropriations to supply deficiencies in the appropriations for the fiscal year ending June 30, 1891, and for prior years and for other purposes,' be paid to the person or persons entitled to recover and receive the same, to be ascertained by the court of claims upon sufficient evidence and certified to the secretary of the treasury." Proceeding under the above enactment, Charles G. Gilliat, the appellee, presented his petition to the court of claims for the payment of one-third of the sum named, on the ground that he was a grandson of one of the three original sufferers by reason of the seizure of the ship Hannah, above mentioned, and had been duly appointed administrator de bonis non of the estate of his grandfather by the chancery court of the city of Richmond and state of Virginia. The attorney general answered the petition of the claimant, denied the allegations therein, and asked judgment that the petition be dismissed.

Upon the hearing, the court of claims decided that the petitioner was the administrator of the estate of Thomas Gilliat, who was one of the three members of the firm of Gilliat & Taylor, the original sufferers, and that the petitioner represented the descendants and next of kin of the above-mentioned Thomas Gilliat; and the court certified to the secretary of the v.17s.c.-2

treasury for payment to such administrator to the extent of one-third of the sum of $35,840.44, appropriated by the act of March 3, 1891, being the sum of $11,946.81, which was the extent of the interest of Thomas Gilliat in the partnership of Gilliat & Taylor. The attorney general, in his notice of appeal, described the certificate of the court of claims, which it made to the secretary of the treasury, pursuant to the above act of March 3, 1891, as a judgment, and, as such, assumed to appeal therefrom to the supreme court of the United States. The notice of appeal was filed, and allowed in open court by the chief justice of the court of claims; and, the record being now before this court, a motion is made to dismiss the appeal.

Asst. Atty. Gen. Dodge and Chas. W. Russell, for the United States. Frank W. Hackett, for appellee.

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court.

The appellee moves to dismiss the appeal in this proceeding on the ground that the action of the court of claims was conclusive, under the special statute of August 23, 1894 (28 Stat. 487), providing for the hearing of the question of fact by the court as to what person was entitled to recover and receive the amount appropriated to be paid to John A. Brimmer, Jr., under the act of March 3, 1891 (26 Stat. 862, 900).

We think the appeal should be dismissed. The original act of congress of January 20, 1885, by which the claimants in the spoliation cases were referred to the court of claims, gave no power to that court to enter judgment upon its finding. By section 6 of that act, the finding and report of the court were to be taken merely as advisory as to the law and facts found, and were not to conclude ei-* ther the claimant or congress. No appeal, therefore, could be taken from the report of the court of claims made to congress under that act. The liability of the government for the payment to those entitled to it of the amount of damages sustained by them by reason of the capture of the ship Hannah and its cargo, owned by the firm of Messrs. Gilliat & Taylor, was found by the court of claims, and reported to congress, pursuant to the act of 1885; and the appropriation was subsequently made by that body for the payment of such damages. The person to whom the appropriation was made was unable to receive the same, because of his inability to comply with the proviso contained in the act of appropriation. For the purpose of ascertaining the person who might be entitled to recover and receive the sum already appropriated by congress for the payment of the damages described, congress passed the act referring to the court of claims that single question; and that court, after having ascertained the fact upon sufficient evidence, was by the act di

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