FRANK, Circuit Judge.
This appeal presents the issue of whether the Seneca Nation of Indians, as lessor to the appellees of lands located within the City of Salamanca, New York, may cancel a ninety-nine year lease because of default in the payment of rent. Although there is directly before us only one lease, on which the annual rent is but $4, the question is of greater importance because the Nation, by resolution, has cancelled hundreds of similar leases. The Salamanca Trust Company, which holds a $15,000 mortgage on the property here involved, and three other financial institutions intervened as parties defendant because of their interest as mortgagees of similar plots. The City of Salamanca, which has acquired by tax sales a number of properties under lease from the Seneca Nation, has also intervened. These lands are part of the Allegany Reservation, which, with several others, was set aside by the United States pursuant to treaties, for the Seneca Nation. See The New York Indians, 5 Wall. 761, 18 L. Ed. 708; Seneca Nation v. Tyler, 14 How. Prac., N.Y., 109; Seneca Nation v. Christie, 126 N.Y. 122, 27 N.E. 275; F. S. Cohen, Handbook of Federal Indian Law (1941) 416-424. During the railroad-building era beginning about 1850, railroad companies and settlers leased reservation lands from the Senecas, and these leases were purportedly ratified by the State of New York. When this ratification was invalidated by
Pursuant to this authority, the lease here involved was made on February 19, 1892 (as a renewal of an earlier lease), for ninety-nine years to Hector G. Forbes, who, in 1919, assigned it to Frank A. Forness and his wife, appellees here. The lease provided for the payment
Cancellation of these leases, although obviously unexpected by Forness and his neighbors, was not prompted by caprice. There is overwhelming evidence that lessees of these lands were customarily lax about paying their rent. In 1911, for example, 1,095 leases were in default; in 1915, 494; in 1931, 529. An attempt was made in 1911 by the Senecas to retain an attorney to collect the arrears, but the Department of the Interior ruled that the 1901 Act, which allocated the disposition of the rentals, prevented use of the funds for this purpose. In 1915, the Nation adopted a resolution cancelling defaulted leases; the cancellation, however, was not enforced. The present action by the Nation, then, represents the culmination of a long struggle by the Indians to enforce their economic rights. In spite of this undenied provocation, they coupled with their cancellation of the leases an offer
Appellees argue first that this suit, brought by the United States on behalf of the Seneca Nation to enforce the cancellation, is in effect an action of ejectment, and that the action is barred by Sections 997-999 of the New York Civil Practice Act, which provide that upon a tender of the arrears of rent before judgment, the court shall dismiss the complaint. But state law cannot be invoked to limit the rights in lands granted by the United States to the Indians, because, as the court below recognized, state law does not apply to the Indians except so far as the United States has given its consent. Worcester v. Georgia, 6 Pet. 515, 560, 8 L.Ed. 483; Patterson v. Seneca Nation, 245 N.Y. 433, 157 N.E. 734; Mulkins v. Snow, 232 N.Y. 47, 51, 133 N.E. 123; cf. The New York Indians, 5 Wall. 761, 18 L. Ed. 708. But, it is argued, such consent to the application of state law was granted by Congress, by the Act of February 19, 1875, which authorized this lease and permitted the laying out of villages on the Cattaraugus and Allegany reservations of the Seneca Nation. Section 8 of that Act provided: "That all laws of the State of New York now in force concerning the laying out, altering, discontinuing, and repairing highways and bridges shall be in force within said villages, and may, with the consent of said Seneca Nation in council, extend to, and be in force beyond, said villages in said reservations, or in either of them; and all municipal laws and regulations of said State may extend over and be in force within said villages: Provided, nevertheless, that nothing in this section shall be construed to authorize the taxation of any Indian, or the property of any Indian not a citizen of the United States."
Appellees assert, and correctly, that the words "municipal laws" often are used to refer to the laws of a country dealing with intra-mural matters as distinguished from "international laws" dealing with its extra-mural affairs. Appellees then go on to insist that the symbol "municipal laws" has only that single referent, regardless of context. Such an argument involves the "one-word-one-meaning" fallacy.
Appellees argue that if the tender does not prevent cancellation by virtue of the provisions of the Civil Practice Act, it nevertheless has resulted in a waiver of any right to a cancellation of the lease by the Indian Agent, as agent of the Seneca Nation, since he accepted appellees' check for the amount of rent due, deposited it to the credit of the Treasurer of the United States, and failed to return the proceeds to them. They point to the Act of February 28, 1901, which provides that all rents due on leases of lands within this reservation "shall be paid to and be recoverable to the United States Indian Agent for the New York Indian Agency for and in the name of the said Seneca Nation," section 1, as proof of his
Another ground urged by appellees in support of their theory that there has been a waiver of the right to cancel the lease, needs only brief mention. It is that the notice sent to appellees by the Agent said that rent, though due on February 19, might be paid on or before April 20. In the case before us the appellees paid the overdue rent to the Agent before April 20. We will assume arguendo that the terms of this notice were sufficiently acquiesced in by the Seneca Nation to prevent cancellation unless default in any particular installment continued beyond April 20. But whatever its effect as to rent due for the current year, the notice did not purport to extend the time for payment of rents due for previous years. Here appellees were in default for nine years; they are in no position to rely, as to the rent not paid in any of the previous eight years, on the two-month-grace period with reference to the currently due installment.
It is urged that the lease cannot be cancelled because no proper "demand" was made for the rent. Appellees refer to the ancient common law requisite of a demand, as reported by Coke, viz., that the landlord must ask for "the precise sum due, at a convenient time before sunset upon the day when the rent is due, upon the land, at the most notorious place of it, though there be no person on the land to pay." Prout v. Roby, 15 Wall. 471, 476, 21 L.Ed. 58, citing and relying on Coke on Littleton (Coke's First Institute) 201b; cf. 2 Tiffany, Landlord and Tenant (1912) 1378; Taylor, Landlord and Tenant, §§ 493-4. The details must be strictly observed by the landlord; thus, we are told, "he cannot demand it at the back door of the house but at the fore door." Coke, ibid. The requirement was based on the feudal
At any rate, the lack of such a demand on the due date was not alleged, nor did the defendants tender this issue at the trial. More important, to require such a demand here would be to insist upon an empty gesture, since the defendants knew that the rent was due.
The rigid doctrine as to demand on the due date is a product of the medieval era. It has been called a period of "strict law," the salient characteristics of which are formalism, inflexibility and indifference to the moral aspects of conduct.
So far at any rate as English medieval law is concerned, this picture of a period of "strict law" has perhaps been overdrawn. Too much should not be made of such historical periodizations. Too often that kind of history-writing, as Aldous Huxley somewhere suggests, results from the ignorance or prejudices of historians.
Nevertheless, if we regard primarily the common law courts, the period when there arose the rigid rule of demand for rent on the due date may, with some justification, be called a period of "strict law." Such rules "devised for purposes now forgotten, survive their occasion in the shape of formal requirements * * *. The rules which make up the traditional element of a legal system often grow up with reference to quite different ends from those we now seek and before the ends we now seek had been recognized * * *. Today, when interests and rights are defined and remedies exist only for securing them within defined limits, there are better means of controlling judicial action than hard and fast formal procedure."
The strict doctrine for which appellees contend derives from the status of landlord and tenant.
Fortunately, we are not trammelled by the ancient doctrine. No legal rules of any particular State are here controlling. Accordingly we are in the same position as federal courts often were during the ninety-six years before Erie R. Co. v. Tompkins, supra, came to bury Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, that of making an independent judgment as to the appropriate legal rules. We must look to the "common law" for a determination of this case. But as Holmes has forcefully pointed out, there is no "transcendental body" of common law uniform and unchanging for all jurisdictions having an Anglo-American legal system, nor are courts prohibited "from refusing to follow the English decisions upon a matter where the local conditions are different."
We cannot believe that Congress intended that, in our times, the rights of American Indians as landlords should be determined by the early 17th century views of Coke — an antique dealer in obsolescent medieval ideas
Moreover, in deviating from Coke, we are not without precedent. As early as 1730, Parliament, recognizing that the requirement of demand for rent on the due date was unduly ritualistic, abolished it when the lessee is in default for more than six months. Statute of 4 Geo. II, c. 28. A number of states have enacted similar or more liberal statutes.
There is this further fact: According to Coke, demand must ordinarily be made on the land, "because the land is the debtor, and that is the place of demand appointed by law," but the rule was otherwise if some other place was designated at which the rent was to be paid. Coke on Littleton, 201b, 202a. Van Rennselaer v. Jewett, 2 N.Y. 141.
We turn, then, to the argument based upon the tender made by appellees, which they assert will stimulate a court of equity to overturn the cancellation of the lease. It is well-established that, as a general rule, equity will relieve against a forfeiture cause by non-payment of rent on the due date. Story, Equity Jurisprudence (14 ed.) § 1727ff; Pomeroy, Equity Jurisprudence (4 ed. § 453).
Circumstances like these cannot be excused by the lame apology that others were doing likewise, and that the Senecas were known to be long-suffering. Even if such an excuse were not tantamount to an astonishing claim of a vested right in wrongdoing, preventing any correction of an evil condition, it would still fall far short of proving laches on the part of the Indians. It would be both impractical and unfair to require the Indians to bring suit each year for the paltry sum owed on this plot, a suit costing more than the amount which it would yield, and it would be equally impractical and unfair to hold that they must expend part of the rent for badgering defendants and their neighbors into prompt payment. To hold that the Senecas cannot cancel this lease because they have treated defendants and others generously in the past would, in these circumstances, be a miscarriage of justice. We do not say that complacency by a landlord may never amount to a waiver of the right to strict enforcement of his lease, but under the circumstances disclosed here, where there has been shown a flagrant abuse of a landlord, helpless because of the small amounts involved, if not for other reasons as well, the conduct does not amount to a waiver. The very difficulty of enforcing the payment of rent due on this and similar leases creates some possible doubt as to the application of the doctrine against forfeiture, upon which appellees build their case. The common-sense behind the granting of relief is that the primary object of the parties is the payment of rent, for which the right to re-entry is only security; on this reasoning, landlords are denied the use of their power of re-entry where the rent payment, to which that power is only incidental, is made. We may question, though we need not decide, whether the doctrine should be applied when experience indicates that lessees are so recalcitrant that only a vigorous enforcement by the landlord of all its rights will be effective.
There is another reason why such relief is not proper here. Defendants, at least, are entitled only to relief against a "forfeiture." The Indians, as we have said, offer to enter into a new lease upon most equitable terms, and, on oral argument, the United States, on their behalf, expressed complete willingness to have those terms embodied in our decree. No doubt the loss of an advantageous bargain can be a forfeiture, and if the defendants here have to pay $115 annually instead of $4, they will suffer a financial loss which will be diminished neither in amount nor in intensity by our refusal to call it a "forfeiture." But equity will not relieve against any and all losses; we must first find some shocking or clearly unfair feature. Suppose, in the case at bar, the parties by agreement had provided that on a default in the payment of the $4 rent, the landlord could not retake possession, but would be privileged to charge thereafter rent computed as the appellants here have offered to compute it. Would we have them relieved against the provision for increased rent on the ground that it worked a forfeiture? We think not, and we think that this answer is decisive of the argument made by appellees. Cf. Emery Bird Thayer Co. v. Williams, 8 Cir., 98 F.2d 166.
Our refusal to exercise our equity powers in these circumstances is reinforced by an unhappy realization that the dealings of certain of our citizens with the Indians have often been far from praiseworthy.
Under seriously adverse conditions, guardianship of the American Indians by the federal government has been necessary; they have accordingly been considered the nation's "wards."
It is of interest that, after the decision in Worcester v. Georgia was rendered, Mr.
There were included in the record proposed findings and objections thereto. This was improper. Federal Rules of Civil Procedure, rules 52(a), 75(e), 28 U. S.C.A. following section 723c. Although we cannot condone this practice, it happens that in this case the inclusion of this material in the record seems to show that the appellant's objections were made not to the findings listed in the record as defendants' requests to find, but rather to other proposed findings with which the findings of the district court are apparently identical. We have recently asked for "brief and pertinent findings of contested matters * * * rather than the delayed, argumentative, overdetailed documents prepared by winning counsel." Matton Oil Transfer Corp. v. Tug Dynamic, 2 Cir., Dec. 1, 1941, 123 F.2d 999, 1001. Otherwise, we lose the benefit of the judge's own consideration. In the instant case, a comparison of the findings with the opinion seems to show that the findings proposed by the defendants were mechanically adopted, with the consequence that some of the findings made by the district court are not supported by the evidence and not substantially in accord with the opinion. Such a result can usually be avoided by following what we believe is the better practice of filing findings with the opinion, when the evidence is still fresh in the mind of the trial judge, and permitting the parties to file objections under Federal Rules of Civil Procedure, rule 52(b). See Matton Oil Transfer Corp. v. Tug "Dynamic," supra.
We stress this matter because of the grave importance of fact-finding. The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably "right" legal rule applied to the "wrong" facts yields a decision which is as faulty as one which results from the application of the "wrong" legal rule to the "right" facts. The latter type of error, indeed, can be corrected on appeal. But the former is not subject to such correction unless the appellant overcomes the heavy burden of showing that the findings of fact are "clearly erroneous." Chief Justice Hughes once remarked, "An unscrupulous administrator might be tempted to say `Let me find the facts for the people of my country, and I care little who lays down the general principles.'"
It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose — that of evoking care on the part of the trial judge in ascertaining the facts.
The judgment dismissing the complaint is reversed, and the case is remanded for entry of a judgment for the plaintiff, on condition that the offer of the new lease, as set forth in plaintiff's affidavits, be kept open for sixty days following the entry of the judgment.
Thayer, writing of trial by oath, speaks of its "highly formal character * * * and the perils which attended it * * *. All comes to naught if the principal withdraws his hand from the book while swearing, `or does not say the words in full as they are charged against him * * *.' We are told (Lea, Superstition and Force, 4th ed. 78) that in the city of Lille, down to the year 1351, the position of every finger was determined by law, and the slightest error lost the suit irrevocably." A Preliminary Treatise on Evidence (1898) 25 note; cf. Maitland, The Constitutional History of England (1908) 115.
As to the relational aspects of contracts, cf. Markby, Elements of Law, §§ 604-622, 626-628; Langdell, A Brief Survey of Equity Jurisdiction, 1 Harv. L.Rev. (1887) 55, 56 and note 1; M. R. Cohen, The Basis of Contract, 46 Harv. L.Rev. (1933) 553, 554, 555; Gardner, An Inquiry Into The Principles of the Law of Contracts, 46 Harv.L.Rev. (1933) 1, 43; 3 Williston, Contracts (revised ed. 1936) 1768, 1922, 1923, 2312, 2313; Llewellyn, What Price Contract? 40 Yale L.J. (1931) 704; Adler, Business Jurisprudence, 28 Harv.L.Rev. (1914) 135; Adler, Labor, Capital and Business, 29 Harv.L.Rev. (1916) 241; Notes, 28 Harv. L.Rev. (1914) 84, 496, 620; Pound, The Spirit of the Common Law (1921) Chap. I; Hume v. Moore-McCormack Lines, 2 Cir., 121 F.2d 336, 342, 343, and notes 20 and 22.
Note Holmes' remark that a man can "commit a contract" as well as a tort, Collected Legal Papers (1921) 175.
That the feudal status relations were bottomed on contract is a fact which has been much neglected by lawyers, although often recognized by historians and political scientists; see e.g., Goebel, loc. cit., 26, 27; Hume v. Moore-McCormack Lines, 121 F.2d 338 note 2, 343 note 22; Figgis in 3 Cambridge Modern History, 737, 762; Sabine, A History of Political Theory (1937) 216, 221; Catlin, The Story of the Political Philosophers (1939) 151-153, 155; Jacob in The Legacy of the Middle Ages, 505, 529. For criticism of Maine's epigram (in Ancient Law, 3d Am.Ed. 163-165) as to the movement "of progressive societies" from "Status to Contract," see Pound, The Spirit of the Common Law (1921), 28; for an effective vindication of Maine, on the ground that he has been misinterpreted through neglect to note his specific qualifications of his thesis, see 3 Holdsworth, History of English Law (3d ed. 1923) 455.
The fact is that Maine clearly perceived not only the relational aspect of contracts but also — to a far greater extent than Pound — the contractual aspects of feudal relations. Ancient Law, supra, 305-335, 352-354.
Much criticism of Maine, as too much interested in Roman influences on English legal developments, arose in the 19th century when English and American historians were eager to find Teutonic origins for all English institutions. World War I seems to have led to a reaction to that excessive worship of Teutonism. Cf. the comments on Holmes in Radin, Anglo-American Legal History (1936) 431; Wingfield-Stratford, 1 History of British Civilization (1928) 35.
Perhaps now that we and the English are at war with both Germany and Italy, we can attain a more dispassionate attitude towards both German and Roman influences.
Maine, writing in 1861, had used the same metaphor when he referred to the doctrine, which he criticized, "that somewhere in nubibus, or in gremio magistratutuum, there existed a complete, coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances." Ancient Law (3d Am.Ed.), 31. Still earlier, in the latter part of the 17th century, the Marquis of Halifax wrote: "Now I would fain know whether the Common Law is capable of being defined, and whether it doth not hover in the clouds * * * and bolteth out like lightning to be made use of for some particular occasion?" Political Thoughts and Reflections, Foxcroft II, 496, quoted in Holdsworth, 6 History of English Law, 287 note 7. Cf. Corbin, The Laws of The Several States (1941) 50 Yale L.J. 762, 765.
Littleton's book, published in 1481, "summed up and passed on to future generations the land law as developed by the common law lawyers of the Middle Ages, before it was remodelled by the growth of the new equitable principles administered in the Chancery * * *. Many of the complications of this land law, as expounded by Littleton, arose partly from the enthusiasm of the legal profession for the technicalities of a vicious system of procedure * * *. Many of the old doctrines became gradually dormant, but it was still possible to revive them; and so, although with new doctrines, new complexities were introduced, the old doctrines still influenced the law. But it was impossible to understand the real meaning of these old doctrines without a knowledge of the old procedural rules from which they originated. When that origin was forgotten, fictitious or a priori reasons were invented; and ignorance of history became the real foundation for much abstract and arbitrary legal doctrine * * *. Such doctrine was regarded with the reverence which is always at the disposal of the incomprehensible: and the law became infested with that mysticism which, as Mill has pointed out, was not dispelled till Bentham arose. This process was only just beginning in the days of Littleton." 2 Holdsworth, loc. cit. (3d ed. 1923), 574, 575, 588, 589. But it was at its height when Coke, in 1628, republished with his own elaborate commentaries (and as his own First Institute) Littleton's book, which Coke described "as the ornament of the Common Law, and the most perfect and absolute work that ever was written in humane science." With such devotion to a 15th century book, Coke, at times, treats as living 17th century law, rules which were then well on the way to being discarded by his contemporaries. "It cannot be denied that the victory of Coke's views has had unfortunate effects both upon the form and certain parts of the substance of English law," says Holdsworth, adding that "the very conservative character of his writings has led to the retention * * * of rules and doctrines which were already almost obsolete in his day." 5 Holdsworth, loc. cit., 491; see also 474 note 4. Coke "had all the defects of the historical lawyer in an exaggerated form. He is ready with an explanation, and sometimes with a defense, of all the anomalies which disfigured the law. He almost justifies trial by battle; and he regrets the decay of the cumbersome apparatus of the real actions. He is ready also with detailed explanations of all the technical rubbish with which the premature hardening of the procedural rules into a definite system had burdened it; and between explanation and justification it never occurred to him that there could be any distinction." Ibid, 479. "The law of contract and the law of personal property were becoming independent branches of the law — as important as the land law itself. But it was hardly to be expected that a man like Coke, who was saturated with medieval law, whose outlook both as judge and politician had ever been directed to the past, should appreciate these new developments." Ibid, 468.
Cf. Maitland, The Constitutional History of England (1908) 142; Goebel, loc. cit., 723; Winfield, The Chief Sources of English Legal History (1925) 312.