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Opinion of the Court.
no independent action, but who did a day's work or a stated job under the direction of a superior; that the word "servant" must be limited by the more specific words "laborer" and "apprentice," with which it was associated, and be held to comprehend only persons performing the same kind of service that was due from laborers and apprentices; and that a general manager was not ejusdem generis with an apprentice or laborer.
In Gurney v. Atlantic & Great Western Railway, 58 N. Y. 358, in 1874, a case relied on by the appellant, a receiver of a railroad company was directed by an order of court to pay out of moneys in his hands "arrearages owing to the laborers and employés" of the company "for labor and services actually done in connection with" the company's road. Claim was made by a counsellor-at-law for professional services as counsel for the railroad company, rendered prior to the appointment of the receiver. The question raised was whether the language of the order covered employés who had not been in the stated and regular employment of the company. The court held that, in view of the special language of the order, it included the claim for the professional services. It appeared that the order was made as the result of negotiations in regard to which the counsel under whose advice the order was obtained testified that the word "employés" was used in the negotiations "not in any particular or strict sense, but according to its ordinary and general meaning, as including attorney's compensation as well as that of other persons employed by the corporation." The decision appears to have gone upon the ground that the person who made the claim had rendered "services" in connection with the railroad, and was consequently an employé within the meaning of the order.
We are, therefore, of opinion that Vane had no lien under the act of March, 1877, § 5286 of the Revised Statutes.
It is further contended that Vane had a lien by virtue of the general mechanics' lien law, before referred to, which was re-enacted by the act of March 6, 1883, Laws of 1883, 140; Elliott's Supplement of 1889, §§ 1688 and 1690, in the following language:
"SECTION 1. Be it enacted by the General Assembly of the
Opinion of the Court.
State of Indiana, That mechanics, and all persons performing labor or furnishing material or machinery for erecting, altering, repairing, or removing any house, mill, manufactory, or other building, bridge, reservoir, system of water-works, or other structure, may have a lien, separately or jointly, upon the house, mill, manufactory, or other building, bridge, reservoir, system of water-works or other structure, which they may have erected, altered, repaired, or removed, or for which they may have furnished material or machinery of any description, and on the interest of the owner of the lot or land on which it stands, or with which it is connected, to the extent of the value of any labor done or materials or machinery furnished, or both."
"SEC. 3. Any person wishing to acquire such lien upon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty days. after the performing of such labor or furnishing such materials or machinery, notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth therein the amount claimed, and giving a substantial description of such lot or land on which the house, mill, manufactory, or other building, bridge, reservoir, system of water-works, or other structure may stand or be connected with, or to which it may be removed. Any description of the lot or land in a notice of lien will be sufficient, if from such description or any reference therein, the lot of land can be identified."
In regard to this it is sufficient to say that the notice of lien filed by Vane in September, 1884, did not comply with section 3 of the statute, in regard to a description of the "lot or land" on which the structure stood upon which he claimed a lien.
A common law lien and an equitable lien are also claimed. As to the common law lien the master reported that, by perfecting his claim for a lien under the statute, Mr. Vane waived the right he had, if any, to assert his common law lien." We concur in this view, as to the personal property and earnings of the corporation. As to the poles and wires they were real estate, on which there could be no lien, at common law.
Statement of the Case.
In addition to this, Vane gave up any right he had to a common law lien as to the wires, by giving up possession of them on November 19, 1884. The lien referred to in the paper of that date, signed by the receivers, as a lien claimed by Vane, was the statutory lien which he had attempted to secure by his notice dated September 15, 1884. Nor do we see any ground for saying that he had or retained an equitable lien.
It is also claimed that the instrument of November 19, 1884, fixed a lien upon the property. We do not so understand it. It conferred no new right upon Vane. It only refers to such lien, if any, as existed, to a lien claimed by him. Where it speaks of "the lien of the said Vane," it refers to what it had before spoken of as the lien claimed by him. The purport of the paper is simply that the use of the wires by the receivers shall not be construed as impairing or interfering with the lien claimed by Vane, that is, with any lien which existed under the statute under which he had given and filed his notices, dated September 15, 1884.
REDFIELD v. PARKS.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
No. 27. Submitted November 5, 1889. - Decided November 18, 1889.
In the courts of the United States an action of ejectment is an action at law, and the plaintiff must recover on the legal title. While the title to public land is still in the United States, no adverse possession of it can, under a state statute of limitations, confer a title which will prevail in an action of ejectment in the courts of the United States, against the legal title under a patent from the United States.
A deed of land sold for non-payment of taxes, which recites that the sale was made on a day which was not the day authorized by law, is void on its face, and is not admissible in evidence to support an adverse possession under a statute of limitations.
THIS cause was submitted April 15, 1889, at the last term, the briefs of counsel for both parties having been filed in due course with the clerk of this court. The court there
Citations for Defendants in Error.
upon refused to consider the case on its merits for the reason that the record did not contain copies of the pleadings, and leave was granted to the plaintiff in error to sue out a writ of certiorari to bring into this court the papers omitted from the transcript. Redfield v. Parks, 130 U. S. 623. Such certiorari was then sued out, and return thereto duly made. The case made by the original record and the papers brought up on return to the certiorari is stated in the opinion of the court.
On the 15th of October of the present term the counsel for the plaintiff in error moved for leave to file an additional brief, and for leave to have an oral argument when the cause should be reached on the docket. The court on October 16th granted the counsel on both sides leave to file additional briefs, but denied the motion as to oral arguments.
Mr. John F. Dillon thereupon, on the 16th of October, filed an additional brief on behalf of the plaintiff in error, citing: Sutton v. Stone, 4 Nebraska, 319; Trustees of Kentucky Seminary v. Payne, 3 T. B. Mon. 161; Toll v. Wright, 37 Michigan, 93, 100; Moore v. Brown, 11 How. 414; Walker v. Turner, 9 Wheat. 541; Waterson v. Devoe, 18 Kansas, 223; Skyles v. King, 2 A. K. Marsh. (Ky.) 385; Cutler v. Hurlbut, 29 Wisconsin, 152; Mason v. Crowder, 85 Missouri, 526; Sheehy v. Hinds, 27 Minnesota, 259; Gomer v. Chaffee, 6 Colorado, 314; Wofford v. McKinna, 23 Texas, 36; S. C. 76 Am. Dec. 53; Lindsey v. Miller, 6 Pet. 666; Bagnell v. Broderick, 13 Pet. 436; Gibson v. Chouteau, 13 Wall. 92; Wilcox v. Jackson, 13 Pet. 498; Oaksmith v. Johnston, 92 U. S. 343; Thompson v. Prince, 67 Illinois, 281; Wood v. Ferguson's Lessee, 7 Ohio St. 288; Clark v. Southard, 16 Ohio St. 408; Miller v. Dunn, 62 Missouri, 216; Dunn v. Miller, 75 Missouri, 260, 272; Cline's Heirs v. Catron, 22 Gratt. 378, 392; Iverson v. Dubose, 27 Alabama, 418; Chiles y. Calk, 4 Bibb (Ky.) 554; Clements v. Anderson, 46 Mississippi, 581; Gardiner v. Miller, 47 California, 570; De Miranda v. Toomey, 51 California, 165.
Mr. A. H. Garland, Mr. A. G. Safford and Mr. D. W. Jones on the 4th November, 1889, on behalf of the defend
Opinion of the Court.
ants in error, filed an additional brief, in reply to Mr. Dillon's additional brief, reviewing the cases cited in it, and further citing: Daniel v. Lefevre, 19 Arkansas, 201; Fleming v. Johnson, 26 Arkansas, 421; Percifull v. Platt, 36 Arkansas, 456; McCool v. Smith, 1 Black, 459; Litchfield v. Railroad Co., 7 Wall. 270; Sicard v. Davis, 6 Pet. 124; Wilkes v. Elliot, 5 Cranch C. Ct. 611; Lagow v. Neilson, 10 Indiana, 183; Cutter v. Hurlbut, 29 Wisconsin, 152; Lindsay v. Fay, 25 Wisconsin, 460; Mason v. Crowder, 85 Missouri, 526; Pil low v. Roberts, 13 How. 472.
MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the Eastern District of Arkansas. The action in that court was in the nature of ejectment to recover possession of real estate, brought by Jared E. Redfield, the present plaintiff in error, against William P. Parks, Charles Harper and others. The case was submitted to the court without a jury, which made a finding of facts on which was rendered a judgment for the defendants.
The principal issue in the case before that court was on the defence under the statute of limitations. The plaintiff relied upon, and introduced in evidence, a patent from the United States, dated April 15, 1875, conveying the property to the Mississippi, Ouachita and Red River Railroad Company, reciting the purchase by that company of the land in controversy and the payment of $594.48 for it.
The plaintiff Redfield purchased this land at a judicial sale, on a judgment against that company, for the sum of five hundred dollars, and received a deed under that purchase. It further appears from the findings of the court that the railroad company made payment in full for the land September 10, 1856, and received at that time the certificate of the register of the land office. The approval of this entry for the issue of a patent was made at the General Land Office in Washington, June 1, 1874. The circumstances under which the delay in the issue of a patent was had are not stated.