have, for the present purposes of this cause, so treated it; but I do not at all assent to that theory, though I need not decide it, and only refer to it to reserve the point. Courts get possession of property by a seizure of it, or by voluntary surrender to its officers, 'and possibly not otherwise. Transfers of property may not be effectual, or may be prevented by injunction, and thus it may be in one in custodia legis; but the possession of the party may not be the possession of the court in the sense of the rule we have been considering. The pleas are insufficient.
and others v.
May Ii, 1882.)
(CirCUit Oourt, S. D. Nf/W York.
EQtJITY-JURItIDIPTION-REMEDY AT L A W . "
In a suit inequity, the objection that ther.e is It!) I).dequate remedy at raises a jurisdictional question, and which will be enforced by the court Bua sponte,although not raised byfbe pleadings Dor suggested by coun,seI;' and, even where the bill is framed so as to avoid the point, where it is apparent: on the face of the bill that the remedy is at }aw"it is thc duty of thQ;oourt to decline jurisdiction and dismiss the bill.
2. SAMJIl-RELIEF, WllEN NOT OBTAINABLE. Where the case made by the bill resolves itself into a complainants and defendant as to defendant's right to withhold from complain-' ants certain city bonds, to which complainants have legal ,title, alld,defendant no title whatever, it is not a controversy of equitable for an aetion at law for conversion, or in replevin, which affords a 'plain and appro, priate remedy. ', 3. SAMJIl-PARTIES-REPRESENTATIVlD CAPACITY. ,'. That a party is sueq. iI;!. his representative capaelty a8 tnlstee ;a,·third party will not confer jUrisdiction, il?- equity where he does not bear sucl;l to . the parties btingiiig; the suit: '
E. A. Hutchins, for complainants. Platt Ii Bowers and Man a: Parsons, for defendants. WALLACE, C. J. The bill in this cause does not present '8 contro· versy which this court, sitting in equity, can entertain. It states a cause of action for which there is a plain and adequate remedy at law. The defendants have not demurred, but have answered,and do not even now raise the objection. But the court can only entertain the case made by theoill. As was said in Washington R. R. Brai/.l(y, 10 WaH. 299, 303: "It is hardly' necessary to repeat· the; luioms in the equity law of prooedure that 'the allegations and· proofs(
1)1Uj3t agree,; that the court can only consider what is put in: ,by!' the pl'eadings; that averments without proofs, and proofs without averments, are alike unavailing; and that, the decree must conform go beyond them," to the scope and object of the prayer, Story, Eq. PI. §§ 10, 481. The objection that there is an adequate remedy at' law raises a jurisdictional question, and will be enforced by the court S'lta sponte, although not, raised by, the pleadings nor suggested by couDsel. Oelricks v. Spain, 15 Wall. 211. Even where it is not apparent upon the face of the bill, but the bill is framed so as to avoid the point, if in looking at the proofs it appears that the case is one for which there is a plain and adequate remedy at law, it is the duty of the court to decline jurisdiction and dismiss the bill. Lv/.liis v. Cooks, 23 Wall. 466. ,' : There are precedents to the effect that it is too late to raise the question when 'the cause has gone to a hearing and the point has not been taken by demurrer or answer, but these precedentsha've not been followed in the federal courts. The case of Wylie 'v. Ooxe, 15 How. 415, gives a pa,rtial sanction to such a rule by declaring "that it is too late to raise suchan objection on the hearing in the appellate court, unless' the want of jurisdiction is apparent on the face of the bill." ' .. It. case it is apparent on the face of the bill that the is at law. The 'bill alleges that the complainants are the owners of ,232 bonds, (jf'$l,OOO each, by the city of New Orleans; that these bonds are in the possession of Fry; the trustee in bankruptcy of Schuchardt & Sons; that, although thereunto requested, Fry refuses to deliver the' bonds that Fry claims to hOld the bonds as f6r a pretended indebtedness owing froni the assignees in bankruptcy of Caverre & Sons and from the receiver of the New Orleans Banking Association; that in fact the bonds were never hypothecated' for any such indebtedness; that a sum of money is now on. deposit in the Union Bank of London which belongs either to Fryar to the receiver of the New Orleans National Banking Association, and should be applied to the reduction of the alleged indebtedness for which Fry claims to hold the bonds as security; that several other per.s6nR who are made defendants "claim to have liens upon the said bonds or some p'ortion thereof, or claims affecting the said bonds, the exact whereof your ora,tors are ignorant, and the validityofwhicb .}rour orators dispute." The pray-at,pf the bill is tbatFry' shall be
adjudg.ecLto deliver the bonds:. to.:tlie .complainants,' and·. tliat.'the rights of Fry and. the receiver of the' New Orleans Banking Company t.othe money in bank in Londbn may be settled, and the deposit plied where it may belong. :130 .Inasmuch as the complainants do not allege that they have')lt:lj interest in the controversy between 'Fry and the receiver of theN-e:-..t Orlewns Banking A.ssociation· as, to the deposit in the London banki or that their rights are in any manner involved in that controversy.; and nothing appears by which such a conclusion is suggel;lted or can be inferred, all the allegations in regard to that controversy, for ent purposes, may ,be the· bill. . The,.same - may be said of the allegations in regard to the claims of the other defendants. It is not alleged, and nothing in the bill authorizes the inference, that such defendants have any control over the bonds, or any apparent or colorable title thereto, or interest therein. No relief hardly be is prayed for' as to such defendants. If it had Men; it supposed the COtlrt would undertake to adjudicate upon the merits of the naked assertion of these defendants. ' The case made by the hill, when analyzed, resolves itself into a, dontroversybetween the complainants and the defendant Fry as to Fry's right to withhold frorilthe complainants the bonds to which complainants have the legal title, and Fry no title whatever. This controversy is not of equitable cognizance. An action at law for conversion, or in replevin, is the plain and appropriat(remedy.· If, indulging in surmis.e, it should be assumed that the defEmdallts other than Fry have some interest in these bonds, as between themselves and Fry, which they may be able to assert against the complainants if the complainants recover .against Fry, the case is no If the complainants are the owners of property which J:1.nother wrpngfully withholds, their cause of action at law is not changed into one of equitable cognizance because there are other partie.s· who may Bssail their title after it has been established against him who wrong. fully invades it, unless there are present Bome of the peculiar incidents which authorize the intervention of a.caurt of equity. Hipp' v. Babin, 19 How. 271. The fact that Fry is Buedas ,a.trnstee was suggested on. the argument.'c:The reply is, he is not sued as a trustee fodhe complAinantS:, and no element of·trust appeats in the cont-roversyset forth in the bill. lie is sued in his representative. capacity as abllsteeciu bank;. ruptcyof,Scliullhiudt & for acts for which he ,aUy,upon ·the tHeory of the bill. '!J
Looking outside of the pleadings into the proofs, enough appears to indicate that if the complainants had asserted an equitable title to the bonds, the extent of which is to be determined by ascertaining and settling the rights of various other parties, the jurisdiction would have. been properly invoked. The defendants Fry and Saborde and Beynes seem to have supposed that an answer instead of a cross-bill entitles them to affirmative relief. It is much to be regretted that the parties, all of whom are interested in a speedy settlement of the controversy, should have been subjected to the delay and expense of this fruitless proceeding. The bill is dismissed for want of jurisdiction, without costs.
(Oircuit Court, E. IJ. Michigan.
EQUITY-SETTING ASIDE DEEDS-CONCURRENT JURIBDICTION.
A court of equity has concurrent jU1;,isdiction with a court of law to set a$ide deeds of real estate made to hinder, delay, and defraud creditors.
2. SAME-ExEcUTION SALE-RIGHTS OF Pu'liCHABER.
This jurisdiction may be invoked by" judgment creditor either before 01 after sale upon execution. A purchaser upon execution has the same right in this respect as a judgment creditor.
3. JUDGMENT DEBTOR-AsSETS.
The interest of a judgment debtor in lands fraudulently conveyed by him is a legal and not an equitable asset.
4. PRACTICE-DEMURRER OVERRULED-ONJ:NING PROOFS.
Where a defendant answers and demurs, but takes no testimony in support of his answer, and elects to go to a hearing upon his demurrer, leave will not be granted to open proofs upon overruling the demurrer.
In Equity. On motion for rehearing. This was a bill by a judgment creditor, who was also purchaser upon the execution sale, to set aside a fraudulent conveyance made by the judgment debtor. The proofs showed that judgment was obtained in this court against the defendant Philo H. Budlong, June 12, 1877, execution issued and levied July 3, 1877, upon lands theretofore owned by the defendant, and a certificate of the levy filed in the county register's office; that the lands were sold upon such execution November 30, 1877, and were bid in by the complainants. A certificate of sale under the statute was recorded December 1st. This judgment was rendered upon a bond given by the defendant