therefrom to be paid over annually to the | the Act of Congress.' None seems to be nec-
trustees of said University for the general pur
poses of said institution.'

essary in reference to the fund to be derived
from what are called the ultimate net profits
from the location and sale of the lands by Mr.
Cornell, under the agreement of August, 1866.
By his contract with the State he is to pay these
profits into its treasury, and he has twenty
This fund is, in our opinion, a part of the pro-
ceeds of the scrip within the purview of the Act
of Congress, and cannot be legally distinguished
from the other fund. Mr. Cornell seems to
have taken this view before entering into the
contract, for in a public communication, dated
October 26, 1869, referring to a letter from
himself to Comptroller Hillhouse in June, 1863,
he says: I volunteered to create a fund three
or four times as large as that which the State
could produce, for the same object that Con-
gress intended, and at my own risk and ex-
penses, without charging a single dime to any.
body for my services.' He could not impose
on the state treasury a new and distinct trust
as to any part of the consideration he was to
pay. Unless these profits are part of the pur-
chase money, the State gave to him, for the
college bearing his name, a monopoly of the
scrip on long credit for a price much less than
its cash value. The second thirty cents per

It is unnecessary to notice the other portions
of the correspondence, or to review the con-
tract, for all of significance is expressed in this
proposition. It is not an absolute sale of the
scrip for so much money. The obligation as-years in which to complete the sale of the lands.
sumed by Mr. Cornell to the State was thirty
cents an acre, and the net profits of the location
of the scrip on public lands, and sale of the
lands. In briefer words, thirty cents an acre
and net profits was his offer. True, he pro-
posed that only part of the profits, to wit,
thirty cents an acre, should pass to the fund;
but what authority had the commissioners for
making such a limitation in the contract?
Suppose, after the making of the contract, the
commissioners had declined to transfer the
scrip to him, could he have compelled the
specific performance, by mandamus, of that
contract? Would not a clear and satisfactory
answer have been that the commissioners had
no authority to partition the profits. The limit
of their authority was a contract by which
the agent and locator should pay to the State
the whole net profits of the location. As Mr.
Cornell could not have compelled, by manda-
mus, the performance by the commissioners of
the contract, so, on the other hand, having re-acre, provided for in the agreement, being de-
ceived the scrip and located it, and disposed of
the land, and paid the money into the State,
that unauthorized stipulation becomes surplus-
age. It cannot relieve the State of New York
from its liability as trustee. It is not potent to
turn a portion of the proceeds of this scrip
into other channels, or to other uses. The fact
that all the proceeds were going to the selected
beneficiary doubtless led the commissioners to
indifference as to the stipulations of the con-
tract; but such indifference did not enlarge
their powers nor make valid the stipulation in
excess thereof. It seems strange that a trustee
can avail itself of a disregard by its agent of
his instructions so as to relieve itself of respon-
sibility for about four fifths of the proceeds of
the trust property; yet such is the result of the
conclusions reached by this court.

pendent solely on contingent profits, which
might not be realized, if at all, for twenty
years, and then without interest, was not at the
date of the agreement equivalent to more than
from seven to ten cents. These profits, being
part of the purchase money, the State is bound
to receive them, when, from time to time, re-
alized, and invest them in the manner pre-
scribed by the Act of Congress, and to appro-
priate the income to educational purposes in
the Act defined."

It is true, a minority of that commission dissented; but the reasoning of the minority makes [211] the contract of no validity, except as to the sale of the scrip for thirty cents an acre, and leaves only that amount as the fund for which the State is responsible. The reasoning is that the State was not authorized under the Act to itself We are sustained in this view by a report of locate scrip on lands in another State; and if a majority of the commission, appointed in the profits of the location were to belong to 1874 by the Legislature of the State of New the State, it would follow that the State was York, to inquire into this fund; for they say: the beneficial owner of the lands thus located, "The question was raised in the comptroller's and therefore there was a direct evasion of report of 1869, and earlier, whether this agree- the Act of Congress. Concede the force of ment of 4th August, 1866, was a sale of the that reasoning, and who can take advantage of scrip to Mr. Cornell, whether it was not, 'in it? Can the State which has received the prosubstance, an agency with a transfer of title ceeds of such location say that it had no aufor the purpose of facilitating the object in thority to receive them; and can it, after review.' We are of the opinion that the agree-ceiving them, repudiate its liability as trustee ment was an actual sale to Mr. Cornell; but for that which it has received as the proceeds that all his profits, made from these lands, are of the trust property? part of the purchase money, and so subject to the restrictions of the Act of Congress. Everything that forms a part of the consideration for the sale of the trust property by the State belongs to the trust fund created by Congress." And again: "We are are asked, finally, to recommend 'what legislation is necessary to properly secure said funds in compliance with 446

It scarcely need be said that no subsequent legislation on the part of the State of New York, and no agreement between it and Cornell University as to the possession of these funds, can have the effect to relieve the State from its liability as trustee, or place the title to those funds elsewhere than in the State.

136 U. S.

2. A complete contract binding under the Statute of Frauds may be gathered from letters, writings and telegrams between the parties relating to the subject matter of the contract, and so connected with each other that they may be fairly said to constitute one paper relating to the contract.

& In Michigan, it is not essential that the description in the proposal of sale have such particulars

and tokens of identification as to render a resort to extrinsic aid entirely needless.

4. The description in the proposal of sale in this case of the lands proposed to be sold, giving the number of the sections and the parts thereof and

the township and range, is sufficient (although there is no statement of the particular village in which the lands were situated), when taken in connection with the Act of Congress authorizing the purchase at or near the Village of Sault Ste.

Marie.

6. The deed, if delivered only for purposes of examination, and if the previous memorandum of sale is fatally defective under the Statute of Frauds, is competent to show the precise locality of the property which the memorandum of sale

was intended to embrace.

6. A mere offer to sell real estate, upon specified

terms, may be withdrawn at any time before its acceptance. But if the offer be accepted without conditions, and without varying its terms, and the acceptance be communicated to the other party without unreasonable delay, a contract arises, from which neither party can withdraw at pleasure.

7. When the deed is delivered in the execution of the contract with the intention that it shall be operative when the grantee approves of the title, he has the right to put the deed on record, on his approving of it and tendering the consideration money.

8. A party who contracts to sell lands which he does not then own, but the title to which he acquires and then conveys by general warranty, cannot, in an action of ejectment, set up that he

had no title when he agreed to sell.

. Where one assumes by his deed to convey a title and obligates himself to protect the grantee in his enjoyment of it, he is estopped from asserting an after-acquired title and turning his grantee over to a suit on his covenant for redress.

IN ERROR to the Circuit Court of the United
States for the Western District of Michigan
to review a judgment in favor of the United
States, plaintiff, against Thomas Ryan for the
recovery of certain lands in Michigan. Af.
firmed.

Statement by Mr. Justice Harlan:

This action of ejectment was brought to
recover certain lands in the Village of Sault
Ste. Marie, Chippewa County, Michigan,
of which the United States claims to be the
owner in fee, and the possession of which is
alleged to be wrongfully withheld from the
government by the defendant, Thomas Ryan.
They are described in a deed from Ryan and
wife to the United States, of date December
18, 1886, and recorded in the proper local
office on the 25th of May, 1887. At the con-
clusion of the evidence the jury, under the
direction of the court, returned a verdict for
the government, and a judgment was entered
against the defendant. The present writ of
error brings that judgment here for review.
whether the title to the premises in dispute
The principal question to be determined is
ever passed from the defendant to the gov.
ernment. It is claimed that the negotiations
in reference to the sale of these premises
never resulted in a binding contract between
the United States and the defendant; that
the deed of December 18, 1886, although
signed and acknowledged by the defendant
and his wife, was delivered to the officers of
the government, pending such negotiations,
only for examination, and was not placed
upon record with the assent, express or im-
plied, of the grantors; that the proposal
made in Ryan's name for the sale of the
property was withdrawn by him bei ore it
filed for record; and that therefore no title
was accepted, and before the above deed was
passed to the United States.
propositions is controverted by the govern-
ment.

Each of these

The facts upon which these several propositions depend are very numerous, and are to be gathered principally from letters and telegrams between the parties and their agents. They are substantially as follows:

By the third section of an Act of Congress, approved July 8, 1886 (24 Stat. 128, chap. 747), the Secretary of War was authorized to sell the military reservation known as Fort Brady, in the Village of Sault Ste. Marie, in the State of Michigan, except certain portions thereof. By the fourth section he was authorized to purchase grounds in or for fortification and for garrison purposes, near the same village, suitable and sufficient and to construct thereon the necessary buildings, with appurtenances, sufficient for a four-company military post, to be known as Fort Brady, in accordance with estimates to be prepared by the War Department; and the sum of one hundred and twenty thousand dollars was appropriated to enable the Secretary The delivery and acceptance necessary under Stat-That section contained the proviso "that the to comply with the provisions of the Act. ute of Frauds. See note to Mahan v. United States,

[No. 1307.]

Submitted April 21, 1890. Decided May 19, 1890.

NOTE.-A8 to Statute of Frauds; what is sufficient note or memorandum under,-see note to Barry v. Coombe, 7:295.

21:307.

Oral evidence as applicable to written contracts. See note to Bradley v. Washington, A. & G. S. P. Co. 10:72.

title to lands authorized to be purchased un-
der the fourth section of this Act shall be ap-
proved by the Attorney-General." It was
declared by the sixth section that section

[70]

[71]

[72]

three should not take effect until the pur- the same day General Kelton, acti
chase of the new site provided for in section
four should have been effected.

t

P

Marie, owned by Thomas Ryan, as the site for Fort Brady, at the proposed pr $12,000. Papers on file show Mr. R address to be Michigan Exchange Hote troit. Please take the proper steps wi delay to collect and forward to this De ment the necessary deeds and other papers for the conveyance of this land t United States, for examination by the

tant-general, telegraphed to Lieutena nel Abbot, president of the board By direction of the Secretary and in exe- patches nine (9) and eleven (11) cution of the above Act, a board of officers received. The Secretary of War of the army was constituted, to meet at Fort the recommendation of board for pur Brady, Michigan, on the 7th of September, two (2) tracts designated at the 1 1886, or as soon thereafter as was practicable, twelve thousand dollars ($12,000). A for the purpose, among others, of selecting edge receipt. No further instru for purchase suitable and sufficient grounds This telegram was received; for on as indicated in the fourth section of the of September, 1886, Lieutenant-Colo above Act of Congress. The board was di- bot, the president of the board of rected to report by telegraph to the adjutant-wrote from Fort Brady to Ryan at Sa general with its recommendation for the ap- Marie: "You are hereby notified proval of the Secretary of War, as soon as a acting Secretary of War has appro new site was selected. Shortly before the recommendation of the board of office day fixed for its convening, Ryan and his in session at this post, that your attorney, Mr. Cady, met in Detroit, and dated September 8, 1886, be accepted during their interview in that city some con- for the sale of certain tracts of land de versation was had between them in relation in your proposal as follows: 'The S to the meeting of this board, and the pur- of the S. W. of sec. 6 and the S. poses for which it was to be convened. It the S. E. of sec. 1, subject to the appears that for a number of years prior to ing of Easterday Avenue along the that date this property had been mentioned line, for twelve thousand dollars.’” in military circles and among citizens as a letter was first delivered to Mr. Cad possible site for a fort. was by him delivered to Ryan within On the 7th of September, 1886, Cady tele- or four days after it came to his graphed from Sault Ste. Marie to Ryan at The receipt of it by Ryan is not dispu Detroit, Michigan: "Telegraph price to me On the 30th of September, 1886, the of southwest quarter of southwest quarter of Secretary of War wrote to Colonel Po section 6 and southeast quarter of southeast of the board: "The recommendation quarter of section 1, for Fort Brady. Answer board, approved by the Department, immediately." To this telegram Ryan re-a tract of about 75 acres of land at Saul sponded on the same day under his own signature: "Twelve thousand dollars." On the next day Ryan, by Cady, telegraphed to the board convened by the Secretary of War: "I am instructed by Mr. Ryan to offer the S. W. of S. W. of sec. 6 and the S. E. of the S. E. of sec. 1 (both in towns. 47 N. of ranges 1 E. and W.), containing eighty (80) acres, more or less, if sold together, for the sum of twelve thousand dol-torney-General as required by law. lars ($12,000). Although not authorized Orders 47, H'dq'rs of Army, A. G. C yet, I assume that Mr. Ryan would sell any 1881, publishes regulations of the De portion of said lands at a price in ratio to ment of Justice concerning such title pa the above (i. e., $150 per acre)." To this a copy of which will be forwarded to telegram was appended a postscript: "P. S. by mail." Under date of October 4, The above offer is subject to the opening of Mr. Cady wrote to the adjutant-genera Easterday Avenue along the south line." the army at Washington: "On the Under date of September 9, 1886, the pres- ulto. Mr. Thomas Ryan, of Sault Ste. M ident of the board of officers telegraphed to Mich., was notified by Henry L. Abbot, the adjutant-general at Washington: "The tenant-colonel of engineers, president board recommends for purchase the two ad- board, that his offer of certain lands as a joining forty-acre tracts on the hill, half for Fort Brady had been accepted. I mile due south of west end of canal, divided the honor of acting for Mr. Ryan in pre through the center of length by meridian of ing his title for the Attorney-General. V Sault Ste. Marie, aggregating about seventy- you please furnish me with a copy of five acres; price, twelve thousand dollars." printed directions for preparing abstracts General Drum, acting Secretary of War, the use of the government? Any comm under date of September 11, 1886, made the cation relative to the matter should be following indorsement on this telegram: dressed to W. B. Cady, Sault Ste. Ma "Under ordinary circumstances action in this Mich." Two days thereafter, October case would have been deferred until the re- 1886, Colonel Poe wrote to Ryan: turn of the Secretary of War or the lieuten- received from the War Department the ant-general. In view, however, of the im-lowing letter of instructions, viz.: [Let portance of the selection of this site, and of above of September 30, 1886.] I have the the fact that inaction here would delay fore to request that you will proceed further action by the board, which is now rapidly as possible with the preparation in Michigan awaiting reply, the recommend the requisite papers, and to aid you in ation of the board as contained in the within I inclose herewith a copy of General Ord telegram is approved. The board will be No. 47, Headquarters of the Army, Adjuta advised by telegraph of such approval." On General's Office, May 13, 1881. above referr

Ge

"I h

[71]

[72]

three should not take effect until the pur- the same day General Kelton, acting adju
chase of the new site provided for in section tant-general, telegraphed to Lieutenant-Colo-
four should have been effected.
nel Abbot, president of the board: "Dis-

By direction of the Secretary and in exe-patches nine (9) and eleven (11) instant
cution of the above Act, a board of officers received. The Secretary of War approves
of the army was constituted, to meet at Fort the recommendation of board for purchase of
Brady, Michigan, on the 7th of September, two (2) tracts designated at the price of
1886, or as soon thereafter as was practicable, twelve thousand dollars ($12,000). Acknowl
for the purpose, among others, of selecting edge receipt. No further instructions."
for purchase suitable and sufficient grounds This telegram was received; for on the 11th
as indicated in the fourth section of the of September, 1886, Lieutenant-Colonel Ab-
above Act of Congress. The board was di- bot, the president of the board of officers,
rected to report by telegraph to the adjutant- wrote from Fort Brady to Ryan at Sault Ste.
general with its recommendation for the ap- Marie: "You are hereby notified that the
proval of the Secretary of War, as soon as a acting Secretary of War has approved the
new site was selected. Shortly before the recommendation of the board of officers now
day fixed for its convening, Ryan and his in session at this post, that your proposal
attorney, Mr. Cady, met in Detroit, and dated September 8, 1886, be accepted, viz.,
during their interview in that city some con- for the sale of certain tracts of land described
versation was had between them in relation in your proposal as follows: The S. W.
to the meeting of this board, and the pur- of the S. W. of sec. 6 and the S. E. of
poses for which it was to be convened. It the S. E. of sec. 1, subject to the open-
appears that for a number of years prior to ing of Easterday Avenue along the south
that date this property had been mentioned line, for twelve thousand dollars."" This
in military circles and among citizens as a letter was first delivered to Mr. Cady, and
possible site for a fort.
was by him delivered to Ryan within three
On the 7th of September, 1886, Cady tele- or four days after it came to his hands.
graphed from Sault Ste. Marie to Ryan at The receipt of it by Ryan is not disputed.
Detroit, Michigan: "Telegraph price to me On the 30th of September, 1886, the acting
of southwest quarter of southwest quarter of Secretary of War wrote to Colonel Poe, one
section 6 and southeast quarter of southeast of the board: "The recommendation of the
quarter of section 1, for Fort Brady. Answer board, approved by the Department, selects
immediately." To this telegram Ryan re- a tract of about 75 acres of land at Sault Ste.
sponded on the same day under his own Marie, owned by Thomas Ryan, as the new
signature: "Twelve thousand dollars." On site for Fort Brady, at the proposed price of
the next day Ryan, by Cady, telegraphed to $12,000. Papers on file show Mr. Ryan's
the board convened by the Secretary of War: address to be Michigan Exchange Hotel, De-
"I am instructed by Mr. Ryan to offer the S. troit. Please take the proper steps without
W. of S. W. of sec. 6 and the S. E. delay to collect and forward to this Depart-
of the S. E. of sec. 1 (both in towns. 47 ment the necessary deeds and other title
N. of ranges 1 E. and W.), containing papers for the conveyance of this land to the
eighty (80) acres, more or less, if sold to- United States, for examination by the At-
gether, for the sum of twelve thousand dol- torney-General as required by law. General
lars ($12,000). Although not authorized Orders 47, H'dq'rs of Army, A. G. O., of
yet, I assume that Mr. Ryan would sell any 1881, publishes regulations of the Depart-
portion of said lands at a price in ratio to ment of Justice concerning such title papers,
the above (i. e., $150 per acre)." To this a copy of which will be forwarded to you
telegram was appended a postscript: "P. 8. by mail." Under date of October 4, 1886,
The above offer is subject to the opening of Mr. Cady wrote to the adjutant-general of
Easterday Avenue along the south line." the army at Washington: "On the 11th
Under date of September 9, 1886, the pres-ulto. Mr. Thomas Ryan, of Sault Ste. Marie,
ident of the board of officers telegraphed to Mich., was notified by Henry L. Abbot, lieu-
the adjutant-general at Washington: "The tenant-colonel of engineers, president of
board recommends for purchase the two ad-
joining forty-acre tracts on the hill, half
mile due south of west end of canal, divided
through the center of length by meridian of
Sault Ste. Marie, aggregating about seventy-
five acres; price, twelve thousand dollars."
General Drum, acting Secretary of War,
under date of September 11, 1886, made the
following indorsement on this telegram:
"Under ordinary circumstances action in this
case would have been deferred until the re-
turn of the Secretary of War or the lieuten-
ant-general. In view, however, of the im-lowing letter of instructions, viz.: [Letter
portance of the selection of this site, and of
the fact that inaction here would delay
further action by the board, which is now
in Michigan awaiting reply, the recommend
ation of the board as contained in the within
telegram is approved. The board will be
advised by telegraph of such approval." On

board, that his offer of certain lands as a site
for Fort Brady had been accepted. I have
the honor of acting for Mr. Ryan in prepar-
ing his title for the Attorney-General. Will
you please furnish me with a copy of the
printed directions for preparing abstracts for
the use of the government? Any communi-
cation relative to the matter should be ad-
dressed to W. B. Cady, Sault Ste. Marie,
Mich." Two days thereafter, October 6,
1886, Colonel Poe wrote to Ryan: "I have
received from the War Department the fol-

above of September 30, 1886.] I have there-
fore to request that you will proceed as
rapidly as possible with the preparation of
the requisite papers, and to aid you in this
I inclose herewith a copy of General Orders
No. 47, Headquarters of the Army, Adjutant-
General's Office, May 13, 1881. above referred

[73]