ROBINSON V. NATIONAL STOCK-YARD CO.
the notes, would be a proper subject for equitable cognizance. On that ground it appears that the bill should be retained. The demurrer is overruled, the defendant to answer over by the next rule-da.y but one.
RoBINSON v. NATIONAL STOCK-YARD Co.'
(Oircuit OQurt, S. D. New York.
JURISDICTION-:FoREIGN CORPORATION-SEU'VICE OF PROCESS
A foreign corporation may exercise its franchises and transactbuAitless within
the state upon such conditions as the laws of the st,ate may impose,'and may consent to be "found" within the state, within the meaniqg of the Statutes, § 739.
The question whether a party has been properly served with -ptocessornot, or whether he has waived his personal privilege, is not a ,of pleading, but one of practice, and it cannot be raised by demur,rer. ·
Emott, Burnett d. Kidder, for complainant. Abbett et Fuller, for defendant. WALLACE, C. J. The defendant demurs to the complaint; and, suant'to the Code of Procedure of this state, alleges as the ground of demurrer "that it appears upon the face of the complaint that the court has not any jurisdiction of the person of the defendant." The point sought to be presented, however, is that the defE:mdarit has not been properly served with process, in that the law of e'ongress has been disregarded which provides that no civil suit sha.ll be brought in any circuit court of the United States, "against an inhabitant of the United States, by any original process in any other distl'ict than that of which he is an inhabitant, or in which he is found at the time of serving the writ.» Rev. St. § 739. The complaint avers that the defendant is a corporation organized and existing under the laws of the state of New Jersey, and is a citizen of that state. Upon this averment the defendant insists that it is to be presumed not only that the defendant is not ari inhabitant of this judicial district, but also that it was not found here ,when t,he writ was served. The demurrer is untenable for two reasons: First, no such pre. sumption can be legitimately indulged. Although a! corporation of another state cannot immigrate to this state it may exercise its fran· chises and transact business here upon such conditions as the laws
of this state may impose. It may consent to be "found" here for the purpose of being sued, within the meaning of the act of congress. Railroad 00. v. Harris, 12 Wall. 65; Ex parte Schollenucrger, 96 U. S.369. The presumption that a corporation cannot be found out of the state which created it, is no more cogent than that an individual is not to be found out of the state of which he is an inhabitant; and no one has ever supposed a presumption obtains when an individual is the party. Secondly, the point sought to be raised cannot be presented by a demurrer. The statute in question does not affect the general jurisdiction of the court. It confers a personal exemption or privilege upon a defendant which can be waived and is waived by a general appearance in the action. Irvine v. Lowry, 14 Pet. 296; Flanders v. Ins. 00. 3 Mason, 158; Kitchen v. Strowbridge, 4 Wash. C. C.84; Kelsey v. Pennsylvania R. 00. 14 Blatchf. 89. How can'it be ascertained on demurrer whether the party has been erly served with process or not, or whether the personal privilege has been waived,? .It is not the office of a complaint to exhibit the proceedings which have caused the defendant's appearance in the action. The complaint treats the defendant as present in coul't, and exhibits the issue between the parties. How the defendant came there is an extr8;neous matter. If the person selected as a defendant is one who, is not subject to the jurisdiction of the court, and this is apparent upon the pleading, the objection may be by demurrer. If.a party is subject to the jurisdiction it may be that jurisdiction has, not been properly acquired; but this would preaent a of pleading, but one of practice. The precise question question, was ruled in Nones v. Hope Mut. Life Ins. 00. 5 How. Pro 96, where it was held that the defendant could not raise by a demurrer under the Code, upon the ground assigned here, the question whether he had been properly served with process. 'l'his defendant is subject to the jurisdiction of the court. If the writ was irregularly served there was an adequate remedy by a motion to quasb. Judgment, is ordered for plaintiff. Leave is granted the defendant to answer within 20 days upon payment of costs of the demurrer. See Anderson v.Shaffer, 10 FED. REP. 266, and LoveJoy V. Ha11J'ord Ins. Co. 11 FED. REP;, note, 69.
(Circuit Oourt, W. D. Michigan, 8. D. June 10, HI82.)
CoNVEYANCE-MORTGAGE BACK-ABSOLUTE DEED.
A conveyance of land by a deed absolute on its face for the expressed conSIderatIOn of $20,000, in notes of the grantee, which were recelved by the grantor,-the grantee giving back a mortgage of the same date as the deed t<> secure the payment of the notes given for the purchase prjce paid, and accepted by the grantor,-is an absolute deed and not a mortgage.
In Equity. Charle8 F. Burton and C. I. Walker, for complainant. Harri80n Geer and Ashley PaM, for defendant. WITHEY, D. J. The bill of complaint seeks to give to a. deed the effect of a mortgage. In 1872 complainant borrowed of defendant his two promissory notes, payable to the order of Cadman at 90 days, for $5,000 each. They were renewed by defendant from time to time for the accommodation of complainant. The last renewal was between the fifteenth and twentieth of October, 1875, for the same time. On the twenty-fifth of October, the bill states, defendant agreed to loan to complainant the additional sum of $20,000, by the notes of defendant payable at four and six months, and take a deed of 5,400 acres of land in Newaygo county, owned by complainant, of the esti. mated value of upwards of $40,000, as security for the payment of both sums, $10,000 and $20,000. The deed, absolute in form, was executed by complainant and wife, and delivered to defendant on the day last named, and at the same time defendant gave his notes to complainant for $20,000, the consideration nttmed in the deed. The bill of complaint states the- balance of the agreement as follows:
.. Peter was to hold said land until such time as it might be sold at a profit, or for a greater sum than could be then realized, and when such time should possible, and out come was to sell said land in the most advantageous of the proceeds pay himself the said sums of $10,000 and $20,000, and interest and the taxes, and divide the surplus, if any."
The prayer is for an accounting, that the deed may be found to be ttn equitable mortgage, and that complainant may redeem. The answer denies the agreement to loan $20,000; denies that thi;! deed was given as security; and states that defendant purchased the land from complainant for the consideration of $20,000, for which Bum he gave his notes,and long since paid them. The answer denies that complainant has any interest whatever in the land, legal or