(Oircuit Oourt, W. D. Penn31/lfJania.
EQUITY-JURISDICTION-TITLE TO PROPERTY.
July Term, 1878.)
Complainants, as heirs of Howd, deceased, filed an amended bill, alleging that said Clarissa and herdecellsed husband, before their marriage, agreed that each" should have nO,thing to do with the other's property; that his should go to his children, and hers to her heirs and relatives ;" that upon the death of said <.Jlarissaher husband had asserted his exclusive ownership to ail of her property, and devised the same to his two children, against whom and . the execut.or this bill is filed. Held, upon a consideration of the facts, that there was nothing in this case to give an equity court jurisdiction ; that the· only effect of such an agreement would, b.e to estop the devisees and executor of the deceased husband from to the property; that the parties must proceed at law; and, the reM estate'having been converted into personal, the administrator of said marissa wasthe proper party to sue at law, and that the legal representatives of said could only acquire title through administration on her estate. "
McKENNAN, C. J. This, bill is Dledby the complainants, as relatives' by consanguinity of Clarissa Rowd, deceased, against the executor of the will of her deceased husband and others, and prays for decree that they deliver up or pay the value to the complainants of all the property which' the said husband of Mrs. Rowd derived from Rowd was childless; that she her estate. It alleges that was the recipient of a large quantity of real and personal property under the will of her first husband, Frederic Miles, which was intended, ultimately, for her blood relations; that her second husband fraudulently induced her to sell and convert into personalty a large portion of hetreal estate; that he had fraudulently prevented her from making a will disposing of her property among her blood relatives; that she died intestate and without issue, and that the complainants are her collateral relatives; and that, upon her death, her husband asserted his exclusive ownership of all her estate, and made his will devising and bequeathing the same to his two children. These are the main averments of the bill, as it was originally framed. The proofs fall far short of sustaining the hypothesis of actual fraud propounded in the bill. Indeed, they show that on the only occasion when the making of a will by Mrs. Rowd was discussed, she was induced to forego such purpose by the advice of one of the complainants, John C. Strong, Esq.; certainly not by any improper interference on the part of her husband. So, also, as to the sale of
STRONG V. WIGGINS.
Mrs. Rowd's estate; the proofs altogether fail to sustain the allegations of-,the bill touching the motives and agency of her husband in it. There is evidence, however, of statements and declarations by Mr. and Mrs. Rowd that, before their marriage, it was ,understood and agreed between them that each "should have: nothing to do with the other's property; that his should go to his children, and hers to her heirs and relatives. .. And the bill has been so amended as to' make this alleged agreement the basis of the relief prayed for. Assuming that the ownership of the property of Clarissa Hoitd at her death was vested by the alleged antenuptial contract in the complainants, it is a contest between p'arties, each of whom claims title to the property, and the determination of this belongs properly to a court of law, in an appropriate action, and not to a court of equity; Or, if the property is wrongfully in the possession of the respondents, without any claim of ownership, a court of equity is not the proper tripunal in which to recover it. Standing upon the same footing as if they had acquired the property in any other mode, a court of law is the forum in which alone they may enforce their ownership. If they claim in the character of heirs at law of Clarissa Rowd, as they do, there is no such fiduciary relation between them and the respondents as would give a court of equity jurisdiction to make the decree prayed for. The only effect of the antenuptial contract would be to estop Sylvester Rowd and his representatives from asserting his right as husband to the property of his deceased wife. But it could not render available to them a jurisdiction or a remedy to which they could not otherwise resort. The law devolves upon the personal representative of Clarissa Rowd the title to all her personal property, and it is only throngh him that it can be asser.ted. There is, then, neither legal ownership, nor the privity incidental to the relation of trustee and ce8tui que tru8t, which would supply a basis of accountability by the respondents to the complainants. To whatever accountability the respondents are subject, it is to the legal representative of Clarissa Rowd. Whatever right the complainants may have is as distributees of her estate, when it is collected and ascertained by the process of legal administration. The bill is therefore dismissed at the costs of the complainants, but without prejudice.
D. J. I concur fully in the foregoing opinion of the cir.
and others ".
(Oircuit Oourt, D. Oalifornia. August 21, 1882.\
EQUITy-RESTRAINING PROCEEDINGS AT LAW-TITLE:
In 1856, J. t H. & C., as tenants in common, owned certain real estate in Oakland, California. J., in that year, contracted to sell to one Henry A. Cobb his interest in one undivided third thereof, and executed a deed supposed t.o contain the whole thereof, but by mistake the land in controversy was omitted ill the deed. Cobb went into possession and so continued until he sold to J. F. Cobb, in 1857, when a partition of the land was had, and in such partition the land in cootroversy was allotted to J. F. Cobb; and Crellin and others, deriving title through him, have been in possession ever since, and have erected valuable improvements on the land. J. executed in New York a conveyance in general terms of all of his property to Ely and others, who thereupon brought an action against Crellin and others torecover the land, with damages for its wrongful deteotiQo, and the rents and profits thereof; whereupon complainants filed a bill in equity to stay the proceedings at law. Held, that complainants were entitled to the aid of a court of equity to restrain the proceedings at law until they could perfect their title to the property, upon filing proper bond.
2. SAME-PRACTICE-SUBSTITUTED SERVICE-NoN-RESIDENT DEFENDANTS.
Where attorneys have instituted a suit at law for Don-residents of the state where the suit is instituted, and a temporary injunction against such proceeding at law is allowed, a subprena may be served upon such attorneys, and their clients will be bound thereby, although the attorneys have not been retained, except ll.S to the proceeding at law.
Before FIELD, Justice, and SAWYER, C. J. This is a suit in equity for relief against an action at law, com· w.enced by the defendants against the complainants, for the possession of certain lands in the city of Oakland, in this state. Upon an affidavit of one of the complainants that their defense to the action at law arises out of matters which are purely of equitable cognizance; that the plaintiffs therein are non-residents of the state, and absent from it; and that a subprena issued in this suit could not be served upon them by reason of snch absence,-an order was issued and served upon the attorneys in the action at law to show cause why the subprena should not be served upon them in place of the plaintiffs. Upon its return, the attorneys reply, in substance, that they have only been retained to prosecute the action at law for the recoy· ery of the lands, and do not consider themselves authorized to appear for their clients in any other proceedings. The complaint in the action at law is in the usual form in such cases, alleging seizin of the premises and right of possession by the plaintiffs on a day designated, and the wrongful entry of the defend· ants thereon, and their withholding of the same. It places the dam·