Gambar halaman

[1] 2. It is the statutory law in Tennessee that actual possession, under adverse claim and under a deed, held for more than 7 years, is a perfect bar against a superior paper title, and that this bar extends to the entire tract as described in the defendant's deed. Shannon's Code, § 4456; Earnest v. Land Co., 109 Tenn. 427, 75 S. W. 1122; Mayse v. Lafferty, 1 Head (Tenn.) 60. It follows that the question to which most of the testimony has been directed-viz, whether the Gall line must be taken as the true south line of 1931—is wholly immaterial; defendant's established, and, indeed, unquestioned, possession for more than 30 years is the end of the case, except for the question of estoppel by judgment. True, plaintiffs suggest a conflicting possession; but it is only by construction through actual possession outside of the overlap, while defendant had actual possession of the overlap itself, and this constructive possession is insufficient. Byrd v. Phillips, 120 Tenn. 14. 23, 111 S. W. 1109.

[2] 3. Plaintiffs at last rest upon the claim that the title was adjudicated by the Supreme Court decree. We are unable to find any sufficient basis for this claim. If the decree had remained in the form in which it was drafted, it would still, in view of the opinion, have contained certain ambiguities as to its effect upon the parcel of land now involved, and the attending circumstances would have required that every ambiguity should be resolved against plaintiffs' present claim. This was a very valuable parcel. It had been in the exclusive and undisturbed possession of the defendant for over 20 years. Neither party had taken any proof whatever regarding it, and the plaintiffs, in the court below, had made no claim to it. It is incredible that either party could have supposed that it was involved in the litigation, or would have deliberately contended that the decree ought to cover it. However, the paragraph inserted in the decree leaves no ambiguity. The proposed decree affirmed the action of the lower courts in favor of the Glen Mary Company as to all 4 of the parcels about which there had been an actual controversy. Then, by a general phrase, it awarded to the plaintiffs all other lands within their boundaries. Thereupon this paragraph expressly provided that, as to the other lands claimed by the Glen Mary Company within these boundaries, it was not intended to make any adjudication whatever. It is not necessary to resort to the testimony of the counsel that this exception was intended to reach, also, parcels which were actually claimed, but which he had not described and claimed in his answer; for we find that the parcel in dispute is one of those claimed in the answer. The claim under the head "Eleventh Tract” must refer to this parcel. This eleventh tract so claimed is described only as "being entry 1931”; but since the tract sued for was 1935, and since this reference to the eleventh tract could have no possible pertinence in the answer, unless it referred to something that might be within the boundaries sued for, and since no part of 1931 could possibly be in 1935, excepting through an overlap, actual or claimed, and since this overlap was the very thing which was claimed to give to defendant a part of the ideal 1935 under defendant's deed to 1931, it is clear to a demonstration that this reference in the answer to the eleventh tract was intended to reach this very parcel, and to

present a claim that plaintiffs could not recover this parcel because it really belonged in 1931. Not only is this the natural, if not the inevitable, construction to be put upon this claim of title to the eleventh tract, after we know the conditions which make the situation intelligible, but to give it any other construction would be to make it meaningless and futile. With this construction, it is clear that the title to this parcel, as well as to all the other parcels claimed by the defendant, and which had not by earlier parts of the decree been awarded to the defendant, was left untouched by the decree, and the claim of res judicata must fail.

[3] It is said that to take this view of the later paragraph in the decree neutralizes what had, in the earlier paragraphs, been adjudged, and that, for this reason, such a construction cannot be right. To some extent this premise is true. So far as the general language of the decree awarded to plaintiffs all lands within the boundary not claimed by the defendant the Glen Mary Company, this general language remained operative; but the fact that the broad terms of tlie earlier part of the decree are inconsistent with specific provisions found later therein can cause no hesitation in giving to the specific provisions precise and full effect. The inevitable inference from the face of the decree in connection with the opinion and the pleadings would be that the draftsman of the decree, by mistake, made it too inclusive, and later corrected this mistake by apt words. This inference, which would be sufficiently supported by the record itself, is confirmed by the testimony showing that all these other parcels were, by agreement, withdrawn from the case in its early stages; that plaintiffs, in the lower courts, made no claim of title to them; that such claim of title was first urged in the Supreme Court, and by new counsel not familiar with the agreement; that the Supreme Court, in ignorance of the agreement, approved the claim of the new counsel; and that, as soon as this came to the attention of the former counsel, the blunder was corrected by the consent of everybody. The general phrasing of the earlier paragraph was allowed to stand for whatever benefit it might be to plaintiffs as against other defendants, but the Glen Mary Company fully protected itself by insertion of the amendment.

This view of the result of the litigation in the state court is made entirely consistent and natural by observing that the title to this 99-pole strip was not put in issue by the pleadings in that case, unless by that very eleventh paragraph of the answer which also serves to take it out of the decree, and by the inference—which we think a fair onethat McBurney did not care to litigate with the Glen Mary Company its claim of title to any of the tracts of which it was in possession, excepting as to those 4 tracts where there had been a severance of the coal in the ground from the surface fee, and where, therefore, he thought he might prevail against the statute of limitations; but on this, his only substantial theory, the Supreme Court held against him.

The decree is reversed, and the record remanded, with instructions to dismiss the bill.


(Circuit Court of Appeals, Sixth Circuit. June 5, 1917.)

No. 2917.


A proceeding to deport a Chinese person was of a civil and not of a criminal character, though it was the purpose of the government to proceed upon the hypothesis that the alien had entered the United States surreptitiously and in violation of Immigration Act Feb. 20, 1907, c. 1134, g 36, 34 Stat. 908 (Comp. St. 1916, § 4285), forbidding entry into the United States, except at specified places, and also that he was in the United States in violation of the Chinese exclusion laws, and hence there was no valid objection to the government calling the defendant to state the place of his birth and explain his presence in the United States, without calling other witnesses to show that he was unlawfully within the United


Where, in a proceeding to deport a person of Chinese descent, who claimed to be a citizen and introduced substantial evidence in support of this claim, the recommendation of deportation was based in part on statements of immigration inspectors received by the inspectors conducting the hearing, subsequent to the hearing, and the government never informed defendant that he would be given an opportunity to explain and meet these statements, nor even exhibited to him a photograph, by reference to which one of the inspectors making such statements identified defendant as a person formerly seen in Mexico, he was denied a fair hearing.

{Ed. Note.-For other cases, see Aliens, Cent. Dig. § 94.) 3. CONSTITUTIONAL LAW 318—DUE PROCESS OF LAW-DEPORTATION OF ALIENS.

While the decisions of an executive officer, clothed with power to deport aliens, will not be subjected to technical tests, yet the guaranty of due process forbids deportation without according a full and fair hearing.

(Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $ 949.] Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.

Habeas corpus proceeding by Chan Foo Lin, alias Frank Chan. From a decree dismissing the writ, the petitioner appeals. Reversed and remanded, with directions.

John A. Cline, of Cleveland, Ohio, for appellant.

Joseph C. Breitenstein, Asst. U. S. Atty., of Cleveland, Ohio, for appellee.

Before WARRINGTON and DENISON, Circuit Judges, and SATER, District Judge.

WARRINGTON, Circuit Judge. This is an appeal from an order dismissing a proceeding in habeas corpus. Petitioner, Chan Foo Lin, alias Frank Chan, claimed he was unlawfully deprived of his liberty by an inspector in charge of the immigration department of the Cleveland district of Ohio. The usual writ having been issued, the inspec

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & ludexes

tor answered that he was holding petitioner in virtue of a warrant for his arrest which had been issued by the Acting Secretary of Labor ; that upon the matters involved in the warrant of arrest petitioner had been granted a fair and full hearing in accordance with law and with the regulations of the Secretary of Labor; that upon due consideration the Acting Secretary of Labor had by wire instructed respondent to convey petitioner to New York for deportation. Petitioner filed a reply, consisting of denials and a series of allegations of fact, among which it was stated that he was born in the United States, and that he had not been granted a fair trial. Discharge of petitioner was denied, and hence the appeal.

The question here must turn upon the issue whether petitioner was granted a fair trial prior to the suing out of the writ of habeas corpus. The warrant of arrest, bearing date June 19, 1914, is addressed to Inspector Fluckey and signed by the Acting Secretary of Labor. The warrant states :

"Whereas, from evidence submitted to me, it appears that the alien," petitioner, "who landed at an unknown port on or subsequent to the 1st day of July, 1911, has been found in the United States in violation of the act of Congress approved February 20, 1907, amended by the act approved March 26, 1910, for the following among other reasons: That the said alien is unlawfully within the United States, in that he has been found therein in violation of the Chinese exclusion laws, and is therefore subject to deportation under the provisions of section 21 of the above-mentioned Act, and that he entered in violation of section 36 of the said act, thereby entering without inspection."

The command is that the inspector "take into custody the said alien and grant him a hearing to enable him to show cause why he 'should not be deported in conformity with law.” It is to be observed of the warrant that petitioner is charged with the violation of both the Immigration Act and the Chinese exclusion laws. The section (36) of the former act so charged to be violated forbids an alien to enter the United States, except at "seaports” or at such “place or places as the Secretary of Commerce and Labor may from time to time designate." 34 Stat. 908, c. 1134, § 36, passed February 20, 1907 (Comp. St. 1916, § 4285). The amendment of March 26, 1910, mentioned in the warrant, does not affect section 36 (36 Stat. 263-265, c. 128 [Comp. St. 1916, § 4244]). The telegram (the "wire") mentioned in the inspector's answer shows that the portion of the warrant charging violatina of the Chinese exclusion laws was intended to apply to section 6 of the act of May 5, 1892, as amended November 3, 1893 (27 Stat. 25, C. OU; 28 Siat. 7, c. 1+ Comp. St. 1916, § 4320]), and to section 7 of the act of September 13, 1888 (25 Stat. 447, c. 1015 [Comp. St. 1916, § 4308]), and “rule 1, Chinese Rules.” Section 6, so referred to, in terms required Chinese laborers, at the date of the act or within one year thereafter, to apply to a collector of internal revenue for a "certificate of residence"; but in view of the date of the act (1892) and of petitioner's age, seemingly 22 years, the object of the charge made under this provision is not perceived. Section 7 exacts production of certificates of re-entry by Chinese laborers who, having previously entered this country and returned to China, seek to re-enter here; and rule 1, Chinese Rules, forbids a Chinese person to enter

the country, except at designated ports and under prescribed conditions.

The warrant of arrest appears to have been issued upon a statement made by the petitioner, June 1, 1914, to Inspector Francis at a laundry in Cleveland, and a further statement of the inspector in charge at Detroit, who from a photograph of petitioner concluded that he had seen him in Windsor, Ontario. The statement of petitioner was made in the form of answers to questions put by Inspector Francis through a Chinese interpreter and taken and transcribed by a stenographer. At the beginning of the examination the petitioner answered the questions with apparent frankness, giving his name as Frank Chan, and also as Chan Foo Lin, his age at 22 years, and the names of his parents, stating that he was born in San Francisco, that his mother had died there and his father in China, also that he had a birth cer- · tificate, but the so-called certificate is described in the record as a "red slip of Chinese paper, unsigned, stating that this boy was born on February 23, 1893; it does not state where he was born.” Later, however, he seems to have thought the examiner was disinclined to believe him, and he refused to answer questions. The inspector sought in several ways to induce him to state in detail such facts and circumstances as might tend either to corroborate or discredit the claim that he was born in San Francisco, saying that if he would frankly answer the questions the inspector would give him "a square deal," but this elicited no answer except "I have nothing to say.” Whatever else may be said of the examination, some answers were secured which apparently were not reconcilable with some of the petitioner's later statements. On June 25, 1914, and after issue of the warrant petitioner was arrested and ordered "to show cause why he should not be deported in conformity with law." A hearing was begun July 29th, before Inspector Francis, as examining officer; several delays having occurred upon request of petitioner's counsel. Inspector Francis and J. A. Fluckey, inspector in charge, with an interpreter and stenographer, also petitioner, with his counsel and a Chinese interpreter furnished by them, were present at each session of the hearing that ensued.

[1] Counsel for petitioner objected to 'Inspector Francis as the examining officer, for the reason that he had conducted the investigation upon which the warrant of arrest was issued, and would be expected later “to render final decision" in the case; also to any examination of petitioner, because the government had introduced no proof that he was unlawfully within the United States, or that he is an alien. We shall have something to say later of the first of these objections; but the last objection is untenable. If we assume that the purpose of the government was to proceed under the Immigration Act upon the hypothesis that petitioner had entered the United States surreptitiously and in violation of section 36 of that act (34 Stat. 908), and also that he was within the United States in violation of the Chinese exclusion laws, still the proceeding was of a civil and not of a criminal character (Low Foon Yin v. United States Immigration Comr., 145 Fed. 791, 793, 76 C. C. A. 355 (C. C. A. 9] ; United States v. Tom Wah, 160 Fed. 207, 210, 211, and citations (D. C.), affirmed

« SebelumnyaLanjutkan »