"J .,;, 'l'EDERAL, REPORTER.. '
the application for removal is made. But apart from this restrictive view of the language of the -Revised Statutes, which constituted the law when the act of 1875 was passed, it is to be observed that the main ground of removal under the act of 1867, embodied in this clause of the Revision, is the existence of 'prejudice or local influence.' Uemoval, where citizenship alone was the cause, has been provided for by other statutes, and is fUUlid in other sections of the Revision. But since removal for prejudice could not constitutionally be made without the required citizenship, it was necessary to incorporate into this statute so much on that point as to make the statute constitutional. It is not necessary, in that view, that the citizenship should have existed when the suit was brought. It is fair to presume that congress meant to say that whenever the requisite citizenship co-exists with such prejudice or local influence as will prevent a fair trial in the state court, the party liable to be injured by that prejudice-namely, the oue who is a citizen of another state-may have the cause removed, As regards the case of Ins. Co. v, Fechner, I think I am not mistaken in saying that the ground of that decision was that congress had not intended-and the language used showed this-to allow a case to be removed on the ground of citizenship alone, except where that cause of removal existed when the suit was commenced. In the case before you citizenship is a necessary incident to removal, but is not the principal ground on which the right is founded, and there exists no language in the statute which implies a limitation of the right to citizenship in different states existing when the suit was bronght. .Nor does the reason apply; for surely it is right that, when prejudice or local influence will prevent a fair trial, a change of venue should be had; and if then the parties have the requisite citizenship, no reason is percei ved why the change should not be to a federal. court. No prOVision of the statute, nor any sound policy of law, forbids such a transfer of the case." . . .
The motion to set aside the order remanding the case is sustained.
LOVE, J., concurs..
Section 639 of the Revised Statutes is not repealed by the act of March 3, 1875, except by merger; and a case which could have been removed under the former provision, but could not be under the latter act, may still be 1'8-' moved. State of Texas v. Le1ois, 14 FED. REP. 65. A suit cannot be removed from a state court, under the act of 1875, unless the requisite citizenship of the parties exists both when the suit was and when the petition for removal is filed. Gibiun v. Bruce, Sup. Ct. Rep. 873.-[ED.
June 25, 1883.)
. (Circuit Court, D. Colorado.
OF ATTACK, Upon a confession of judgment by a corporation, the court in which the action is pending must, of necessity, judge uf the authority of any natnral person who may appear fur the company in that hehalf, whether it he an attorney at law or an agent of the company, and its judgment as to the right and authority of the pers' -a soappeario); to bind. the corporation, must be conclusive in_ alI other proceedmgs where the same Judgment is drawn in question and not open to collateral attack.
'JURISDICTION OF CIRCUIT COURT-,-UESTRAININOP.rrOCEEIJING IN STATE COURT.
A bill to restrain the sheriff of a county in the exeention of process of a connty'conrt of 'co-ordinate jnrisdiction with the cirCllit conrt of the United States, or to restrain the execntion of a deed in pursnance of a sale under snch execution, cannot be maintained in the circnit conrt; bnt when the parties to whom such deed would go are before the court, the court maydeal With , them and dismiss the hill as to the sheriff, '
The circuit court has not jnrisaiction to set aside a sale made in the court of the state, with a view of ordering another sale, hecause the sale Ivas not inade pursuant to the statnte, and the party claiming such sale to be void mnst proceed in the state court.
OF PART OF
'Where a party owning an interest in the property of a corporation-that has lJeen sold under execution and pnrehased by several parties constitlfiing a pool, has, with a view to redeeming such property, paid to such parties a portion of the claims against the cfimpany, they canuot, while retaining the nmounts so paid, deny the right of snch party to redeem, on the ground that the time allowed by the statute}..r redemption has expired; and unless within a reasonable time they refund the money so paid, a decree allowing rcdemption or payment of the balance of the claims will be passed.
HALLETT, J., (orally.) In the year 1881 the Btittenstein :Mining Company owned six or eight mining claims in the county of Chaffee. In the course of its operations it had incurred debts which it waf) unable to pay, amounting in all to $5,000 or $6,000 ; and early in the following year, 1882, these claims were put into judgments by the parties who held them. There were five of these judgments, and upon three of them sales were made of the property 'of the company during the month of June, 1882: The delay .inexecution of the judgments was procured by the officers of the company, through some negotiationscanied on with a view to the settlement of the demands. One of these judgments was obtained by Joseph R. Crow, Upon a claim assigned to him by John B. Henslee, who was a stuckholder in the Brittenstein Company, and the agent of the company in this state to receive service, appointed by the company pursuant to the statute of the state. He at one time had something to do with the management of the company, but at the time that he assigned his demand to Crow, and at the time judgment was entered on that demand, he had no official connection with the company, but was in correspondence with its officers, residing in New York, in to the settlement of these claims. He assigned his demand agamst the ,company on the first day of January, 1880, or about that time, an.d on the ninth day of that month Crow brought suit, and served Ins process upon Henslee, as the agent of the company in the stat.e. Four days later, on the thirteenth of January, Henslee appeared III -the county court of Lake county, in which the suit was brought, and .confessed judgment in favor of Crow against the company for the mand, amounting to $1,79!.33. No execution was issued upon tlns -judgmellt,or upon the other judgments, until some time in the month of June following, or if executions were issued no sale was made until that time. I have not inquired as to the date of exe9u-
tions. The time for the redemption of the property expired in December of the same year. were had III a court of the state of New York, upon which the property of the company was sold by a receiver to Mr. John D. White, plaintiff in the bill in equity, on which a decree is now to be entered. Mr. White was also a stockholder in the Brittenstein Company; he was at one time its president. At the time of these transactions he was a director of the company, aud at the time of these proceedings in the court of New York, also; and if the company was still in existence-of which I am not advised-afterthe sale of the property, he was still a director. In December following, as a purchaser of the property, he telegmphed to Mr. Smith, an attorney residing at Denver,-I think, on the six! h of December,-to proceed to Leadville and Buena Vista, to confer with parties thereamong others, Mr. Henslee-in respect to claims and demands again,;t this property, with a view to reueem from the sales which had been made on jUllgments obtained against the Brittenstein Company, as I have stated. An interview took place between 1\fr. Henslee and Mr. Smith on the seventh of December, in reference to these matters, in which something was stated as to these several demands against the company, and some things, which were not stated, it was agreed might be ascertained from the records of Chaffee connty at Buena Vista, to which Mr. Smith proposed to proceed for the purpose of getting full particulars in respect. to matters in which he was acting for Mr. White. Among other matters discussed at that time was a demand on the part of Henslee against the Brittenstein Company, and Mr. White, as the successor of that company, for annual work done on the claims of the company during the years 1881 and 1882. Henslee represented that some of this work had been done, and some of it was still in progress; he expected to have evidence of its completion in a day or two to present to Mr. Smith, and if the property was to be redeemed he desired to have the money so expended refunded to him. At this point it may be proper to state, also, that while Mr. Henslee had been corresponding with the officers of the Brittenstein Company, in New York, and with 1\1r. While, plaintiff in this snit, to some extent as to the settlement of these claims, he had also been acting for certain parties in St. Louis and Leadville-five or six of them-called in the evidence the Western Pool. These parties, some of them,-aU, I believe, but one,-had been stockholders in the company, and had agreed together to unite in the purchase of the several claims against the company with a view to secure the property; to protect the interest which they had in the company; to protect themselves in respect to moneys which t.hey had expended in behalf of the company, and so on. It seems to have been thought desirable on the part of all persons who were connected with these affairs to get this property; property was much more valuable than the demand against it, and anyone who should secure it would be able to realize some-
WHITE V. CROW.
thing in additiori to the claims which were made against it. With that view these parties-Noel, of St. Louis, and Loker and Simmons-'I don't know who all-had appointed Mr. Henslee to communicate with the owners of these claims and purchase them, and he had done so. He assumed to act and did act for them in the settlement of these claims, so far as they could be settled. He did not deny Mr. Smith's right, or Mr. White's right, to redeem the property at the time, and in the manner provided by law, nor conceal his connection with the parties for whom he was acting. It seems to have been contended by counsel for plaintiff that his position in attempting to act for parties in New York, and at the same time for these other parties, was of doubtful character; but I do not discover anything in the evidence to impute wrong to him, or any effort on his part to conceal his relations with this Western Pool, or the circumstance that he was endeavoring to secure the property for them. Thus mattors stood about the seventh of December. The time for redeeming under one of the judgments would expire on the tenth, under another on the seventeenth, and under another, I believe, on the twenty-fourth, of December. Mr. Smith, as the agent of White, redeemed from all the judgments but one. He went further and paid off some judgments Upon which no sales had been made. He went still further and paid the money which was due for annual work,-some of it due to Mr. Henslee, having been advanced by him, other portions to parties who had done the work. From the judgment in favor of Crow he declined to redeem, from some notion that that judgment was void in itself, or so far irregular that Mr. White was not bound to recognize it, upon the ground, I suppose, that Mr. Henslee, having owned this claim at one time, his assignment to Crow was collusive, without consideration, done with iutent to put the matter in judgment under process served upon him as agent of the company, and without the knowledge of the officers of the company; and upon the ground, also, that this judgment was entered within four days after the service of process upon Henslee, and by his confession, he not having authorIty to act for the company in that behalf. That, I believe, is in substance the position assumed by counsel here, and this bill was filed to redeem from this judgment upon some such theory as that. . We are unable to recognize the force of these suggestions. While It may be true that Henslee was without authority, and as agent of the company, appointed to receive service of process, he would not have power under the statute to confess judgment in favor of anyone bind the company in that way, the judgment, therefore, was perhaps subject to reversal, on that account; yet we do not thmk it is open to collateral attack. Upon a confession of judgment by a corporation the court in which the action is pending must of necessity judge of the authority of any natural person who may pear for the company in that behalf, whether it be an attorney at law or an agent of the company, and its judgment as to the right and
authority of the person so appearing to bind the corporation must be conclusive in all other proceedings where the same judgment is drawn in question. What the force and effect of such a confession shall be in any regular proceeding to :vacate it, and in any court of review to which it may be carried, is not for us to say. We think that tho judgment of the county court, entered upon Mr. Henslee's confession, must be taken to be valid and binding upon the company. rt is in evidence that the claim was a valid oue; the amount for which judgment was given was due from the company to Henslee; he assigned upon good consideration to Crow. His right to assign cannot be denied; and if there be any infirmity in the matter in respect to his right and authority to appear for the company and confess judgment in its behalf, that is a matter which can only be inquired of upon some proceeding to vacate and set aside the judgment. In respect to the particular circumstances of this caso, it is in evidence that some of the officers-certainly the vice-president, in particular-knew of the entry of this judgment very soon after it was entered, and long before any sale was made under it. Mr. White, the purchaser of the property, and the plaintiff in this suit, knew something of it long before he became a purchaser of the property, and no step was takeu by the company itself to attack the judgment and set it aside in the court in which it was rendered, or to remove the record into the supreme court of the state, with a view to make inquiry there concerning it. So that we are prepared to say that in this proceeding, and so far as the right of l\Ir. White to redeem from it is concerned, that no question can be raised in respect to its validity. And the failure of Mr. White to redeem from it within the time prescribed by statute was one which probably may affect his interest very materially in respect to this property. We do not see that he offers any valid excuse for failure to do so. 1\11'. Smith was informed of the existence of this judgment, and of the time the sale was made, 10 days before the expiration of the time for redemption. Of course, it was in his discretion to act, or decline to act, as he thought best. rt is to be said further, relative to this matter, that this bill was filerl against the judgment creditors and the sheriff of the county to enjoin further proceedings under that judgment. In so far as it is proposed by the bill to restrain the sheriff of the county in the execution of process of a court of Lake county, it cannot be maintained in this court. In that respect, it is a bill to restrain proceedings in a court of co-ordinate jurisdiction, and as such we have no greater authority in respect to the execution of a deed in pursuance of the sale than we have in respect to the sale under the execution in the first instance; and so, by the express language of the statute of the United States,-"-I do not recall the number of the section,-we are forbidden to interfere with the conduct of the sheriff in respect to that matter. But having the parties before llS to whom the deed would go, we conceive we have a right to deal with them and to
WHITE ·V. CROW.
dismiss the bill as tel the sheriff. The parties, whose ultimate right it is to have this property, are before the court. It appears that these purchasers of the various judgment claims from the ex.ecution creditors, Crow and Evans, and more of them, are before the court. They came in voluntarily. The members of the Western Pool made defense in their own name, becoming parties to this bill. Having them before the court, we have a right to deal with them directly in respect to this matter, and without reference to the sheriff, and to proceed against them as we would proceed against the sheriff, if it were competent for us to entertain jurisdiction as to him. This, I suppose, determines everything that can be said in reference to this matter except one. As already stated, these parties, constituting the Western Pool, bought up all these claims against the company. The amount in all is something over $5,OOO-between five and six thousand. They had also a claim for annual work done in the year 1882, and they allowed Mr. White, plaintiff in this suit, upon the them'y and proposal to· redeem from all these demands, and acquire tlie property for himself, to pay a good part of these demands,-something over $3,000,-four of the judgments, and for the annual work. In our view, and we think it should so be regarded in any court of equity, these demands, held by one party and for one purpose, should be regarded substantially as one thing, and one accepting payment of any part of them cannot deny Mr. White's right to pay the remainder without refunding what he had received from him. It is not competent for them to say, we will take part of the money in payment of these demands and keep it, because you have failed in respect to one, under some mistake of fact or law. We will hold on to this and deny your right to redeem, and keep the property also. We think that would be most inequitable and unjust, and therefore we propose to say to these defendants that they must refund the money, or admit the plaintiff's right to redeem this property. The decree will be that, within 30 days from the date of entering the decree, the defendants refund the money received in partial payment of the several demands a.gainst this property, with interest; or, failing in that, that the tIff be allowed to pay the remainder, and to have a deed from these parties of such interest as they may have acquired or may acquire under these several sales. As to the sheriff the bill will be dismissed. . There is a point ",·hich I intended to advert to in the course of discussion, to which I may allude now. In respect to the sale of the property en masse, it is alleged in this bill, and not very \VeIl denied, tha.t this property was sold in bulk-six or eight claims, whatever theIr number may be-as one claim, and upon that the plaintiff con!ended, as it is decided in some states, the sale \Vas void, or, as held ;n others, it was voidable, and he would have the right to redeem. ,ve do not think it can be regarded as a void sale, and if it be voidable the right can only be asserted in a court of the state. ,Ye haye
not jurisdiction in this court to set aside a sale made in a court of the state, with a view of ordering another sale, the sale not having been made pursuant to the statute. That portion of the bill, therefore, should .be dismissed, without prejudice to the right of the plaintiff to maintain another bill for tile same cause in any court of competent jurisdiction. . I believe that covers the whole ground. It is pretty clear to us that plaintiff has no other right than to have this money back, with interest. We are not disposed to maintain his possession by injunction. If the defendants here get legal title from the sheriff they can assert that title in an action at law; we are not dispose0 to interfere in a suit of that kind.
MCCONVILLE v.. HOWELL and others. 1
(Circuit Court, D. Colorado.
June 27, 1883.)
Under the 4atule of Colorado non-resident aliens may own, inherit, and convey property, real or personal, the same as citizens and residents.
A contract for the purchase an1 sale of an interest in mining property, at a price Hamed therein, in which contract is the following clause: "Provided, always, in the event of such failure to complete such purchase, he, (the purchaser,1 his heirs and assigns, upon the delivery of possession of sa.d lands and milling premises as aforesaId to the parlies of the first part, their heirs and assigns, shall in nowise be held responsible for the payment of said purchase money," Ilfld, that up:m refusal to redeliver the property to the sellers on demand, the latter had the right to treat the contract as a sale, and proceed to enforce its specific performance in e'oluity.
N. F. Cleary and G. G. for plaintiffs. George, Maxwell J; Phelps and Mark/Lim, Patterson J; Tholn'ls, for
defendants. MCCRARY, J., (orally.) In the case of Edll'ard MeeD/wille v. C. C. Howell et al. I have reached certain conclusions, which I am prepared now to state. It is a bill in equity, brought for tho purpose of obtaining a decree for the specific pedormance of a written contract whereby these complamants agreed to sell to the defendant Howell, and the defendant Howell agreed. to pnrchase, certain interests in mining property situated in Lake connty, in this state. It is alleged that the complainants are the heirs at law of one John McConville,'who died at Leadville some time in Novemher, 1880. Some discussion has been had as to whether the proof in this case is sufficient to establish the heirship. Some of the statements given by the principal witness, Mr. Burne, are in the nature of family history, and, to some extent,
the Colorado Law Reporter.