Opinion of the Court. both like to sell out, as our interest in the grant is but little value to us except in the good will we may have for our grandchildren." He closed his letter with an offer to surrender to the heirs their entire interest in the lands upon being refunded the $10,000 already divided, and with a request for a decision at once, "as it should not remain an open question." To this Latham replied under date of November 19, saying that, after consultation with some of the heirs, he had decided, with their advice and coöperation, to accept the offer. "You may, therefore,” said he, “from this date, consider the part interest" (meaning part) "of the lands in question mine and proceed to make the necessary legal transfer. The money, $10,000, will be ready at an early date." Barney replied under date of November 30, expressing his pleasure that the heirs had concluded to take the interests in the lands to themselves, and saying that it could not be sold to other parties than those now owning of the interest. "Should they buy it they might be charged with misrepresentation should the purchase prove profitable. Should it not prove a good investment for the heirs, none will be able to say that they 'went in blind."" To this Latham replied, under date of December 26, saying that he supposed the moneys accrued upon sales made since the division and estimate will be deducted from the $10,000; asking the amount to be refunded, and saying that he had it in his hands, and would forward it as soon as the parties could come to an understanding of how and when the transfer should be made. Barney replied, January 2, 1873, that the parties had no title to the lands, the title being in the railroad company, and suggesting that he make a contract for the purchase from each individual heir, and saying that since the division of the estate $1265.38 had been collected. Again he wrote him on January 13, saying that he was not in a position to give him title to any interest in the lands owing to the fact that it was still in the railroad company, and suggesting as follows: "I see no way for you to get an interest in the property other than your legal share, except by contract with each heir, and then file said contract with me, and I will make the distribution of the proceeds of VOL. CXLIII-36 Opinion of the Court. the sales the same as I do all others holding the original interest." The affair remained in this condition for more than two years, when Barney, being informed that all objections to the sale had been withdrawn, remitted him, under date of April 16, 1875, a final statement with explanations and a check for $298.33 to close the estate. This check was acknowledged and retained, though he declined to give a receipt. No further correspondence passed between these parties, until December of that year. In the meantime, however, and on January 30, 1873, William H. Latham wrote to Mr. Barney that he had been in communication with his brother Edward; had seen Mr. Barney's last letters to him, and was glad he was willing to give up to him, and such others of the heirs as desired their share of the proceeds of these sales, upon being reimbursed the $10,000 paid, and saying that six, if not more, of the heirs were willing to make this arrangement, and that if he had known anything whatever of these lands he would have been unwilling to sign away his interest for one-ninth of $10,000. This letter was partly, at least, in reply to Mr. Barney's letter to Mr. Edward P. Latham of January 13. To this Barney replied, under date of February 10, protesting that the parties had no title to the lands, and offering to make a distribution of all the money in his hands for lands sold since the date of the final distribution, upon being refunded the $10,000, and offering to continue to make such distribution as long as he continued to be the agent of the party now having an interest in the proceeds of the lands. Again he wrote him under date of April 4, saying that the $10,000 had been promised last December by his brother Edward, and that it was due to the parties that advanced it that it should be at once refunded. Receiving no answer to this, he wrote him again, May 13, to the same effect, saying that there were important suits being threatened, which, if successful, would take from them a portion of the lands, and saying that the purchasers were perfectly willing that the heirs should have their interest returned to them, provided a decision were made, "within say thirty days from this date; but they are not willing to pay for the prop Opinion of the Court. erty and have you hold the right at any future time to elect to return the money for the purchase and take the interest. They have now held the matter open for six months." To this Latham replied, May 19, by a somewhat evasive letter, saying that he had been ready to pay his proportion; but, as Barney required the assent of all the heirs before relinquishing the lands as a whole or any portion, he had dismissed the whole thing from his mind as impracticable. He closed by saying that perhaps his brother had acted hastily and injudiciously, and he had written and urged him to immediate decisive action. On June 19, Mr. Barney wrote again, protesting that none of the parties desired to make a great bargain out of the estate; that the settlement was made to avoid expense; that the time had passed which he had named for the heirs to avail themselves of the privilege of taking their proportion of the lands; but, that there might be no cause for complaint, he would again open the matter for a thirty days' option for one or all of the heirs. "If," says he, "the heirs do not take the interest I am compelled under my agreement to become one of the purchasers; that being the case I wish to rid myself of the ugly position of being a seller and a purchaser. I would not for thrice the value of the property have the ill will of the heirs." It seems that at this time a controversy had arisen between the Winona and St. Peter Railroad Company and the St. Paul and Sioux City Railroad, which was pending before the Secretary of the Interior, and had been decided alternatively in favor of each party, and was subsequently carried into the courts. There was also a claim pending in favor of one Drake for a three-eighths interest in all the stock, lands and other property of the defendant; and another by one Kirk, who claimed one-fourth of the property, franchises, stock and profits of the defendants, which culminated in a suit in the following October. The State had also made a claim for taxes upon these lands, and it was then believed that these taxes, if enforced, would render them nearly valueless. Opinion of the Court. No reply was made to Barney's letter of June 19, 1873, and all correspondence between these parties with respect to these lands ceased for a time, although during the year 1874 a number of friendly letters were exchanged between W. H. Latham and himself with reference to some United States Express stock, but no allusion was made to the lands. On February 15, 1875, Mr. Barney remitted William H. Latham a statement and check for $298.34 due him as heir of the estate. On March 27 Latham reopened the correspondence by stating his reluctance to give up his interest in the lands, having never been fully informed as to their status, and desiring to know how many acres they were entitled to, and how many had been sold, etc. To this Mr. Barney replied, calling his attention to the offer he had made, and asking him if he were not satisfied, to let him know what he desired, and saying that the Drake suit would be tried in June, and that the tax suits would probably be decided against them. On April 26 he wrote him a very full letter, saying that he had given the heirs the option to take their proportion of the proceeds of the land, and three times extended this option, and continued the same until September, 1873, "when my brother said he had talked with you about it, and you were satisfied," and giving considerable information with regard to the number of acres claimed by them, the number sold, and probabilities with respect to the pending suits, etc. To this Mr. Latham replied in a short note, April 29, acknowledging receipt of a statement and check enclosed in his letter, and saying that the whole matter appeared satisfactory as far as a cursory examination would indicate. "I am obliged to you for the evident effort made to satisfy me and will write more fully in a few days." On the same day Mr. Barney wrote him from New York, saying that the decision of the full bench on the question of taxation had been adverse; that the suit had been promoted by his brother, and that $40,000 a year would not pay their taxes. No other correspondence took place until December 17, 1875, when the plaintiffs wrote a joint letter, saying that each of them would pay one-ninth of the $10,000, "paid by yourself, Opinion of the Court. In directly or indirectly, for proceeds of sales of lands made since January 1, 1872, or for receipts of sales made anterior to that date." Owing apparently to the pressure of business engagements, Barney did not reply to this until March 1, 1876, wherein he rehearsed at length what had been done, and protested that it would not be fair, after having taken all the risk of making the property valuable, for the plaintiffs to demand their proportion back again, "now that we have been in the main successful." He closed by declining to comply with their request for the two-ninths interest in the lands. reply, Mr. Latham wrote him, March 23, a long letter stating his reasons why he should not be bound by what had been done, and renewing his proposal to take his interest and pay the corresponding proportion of the $10,000. This letter is certainly a very cogent statement of the position from his standpoint. To this and another letter, not produced, Barney replied under date of April 24, presenting also a full statement of facts, urging the injustice of his claim, and offering still to give him and his brother two-ninths of one thirty-seventh interest in the Winona and St. Peter Land Company, formed by the former associates, who took the same proportional interests in the new company they held before it was organized, for two-ninths of $10,000. (This company was organized in 1876 by the defendant Barney and his associates, and had taken the title to all these lands from the railroad company.) This offer was declined by Mr. Latham, and the correspondence was closed by a letter of Mr. Barney, August 1, 1876, saying that he would have transferred to the plaintiffs oneninth of one thirty-seventh of the stock of the new land company, carrying dividends from its organization for all receipts. for lands sold and to be sold since its organization. "The difference between what you ask and my offer would not pay the lawyers' fees for prosecuting or defending a suit brought to seek what you ask for." This entire correspondence, which is very voluminous, was characterized by the most courteous language; with an evident desire on the part of each to take no unfair advantage of the other, but with a failure to agree upon what, under the |