JOH:\'SON V. WILCOX & GIBBS
a lien, when rendered, on such interest in the land as the defendant then has in it, and that if the mere legal title is in the judgment debtor while the equitable ownership is in another, the lien does not attach to the real ownership of the property. If, however, the judg. ment plaintiff levies an execution upon the land, and he or anyone else purchases it at'the execution sale and pays his money without any notice of the equitable interest, relying on the condition of the title as shown by the record in the office at the time of the levy and sale, he then, as an innocent purchaser, acquires an interest in the land. The statutes of Nebraska, in this state of case, award the paramount right to the land to him who first puts his deed on record, or files it in the proper office for that purpose, where the prior equitable interest depends upon an unrecorded deed as in this case. While this is not the usnal rule, it is the law by express statnte in Nebraska, as it has been construed by the supreme court of that state. Compo St. Neb. p. 590, § 477, p. 389, § 16; Mansfield V. Gregory, 8 Neb. 434; S. C. 1 N. W. Rep. 382; Harral V. Gray, 10 Neb. 189; S. C. 4 N. W. Rep. 1040; Bowen v. Billings, 13 Neb.439; S. C.14 N. W. Rep. 152. As plaintiff Withnell, at the date of the levy of defendant's execution, and before the day appointed for the sale of the land, had both the legal title and the superior equity, and had his deed duly recorded, there seems to be no doubt of his right to relief. A decree will therefore be entered making the preliminary injunction perpetual, and quieting plaintiff's title against the claim of defendant under his judgment against Sibbitts.
JOHNSON V. WILCOX
(OVrcuit Oourt, 8.
n. Nf/lD York.
November 6, 1885.)
PLEADING-MoTION TO MAKE MORE DEFINITE BY SETTING OUT WRITTEN AGREEMENT--DEFECT OF PARTIES.
A motion to compel a plaintiff to make his complaint, which is on its face sufficient, more definite and certain by setting out at length a written agreement referred to therein, will not be granted for the purpose of enabling the defendant to demur to the complaint on the ground that there is a defect of parties.
At Law. Stephen A. Walker, for the motion. Stanley, Clarke If Smith, opposed. COXE, J. This is a motion to make the complaint more definite and certain. The action is to recoverdamagel:l for the infringement of a patent. The complaint alleges, in substance, that the plaintiff was the inventor of an improvement in sewing-machines; that upon his request the patent was issued to himself and one Emory; that this
request was in fulfillment of a contract previously made, by the terms of which the plaintff agreed to assign to Emory and himself, jointly, the letters patent about to be issued, in consideration of certain sums of money advanced by Emory to facilitate the common 'enterprise; that subsequently the plaintiff, in his own right, and solely for his own interest, applied for an extension of the patent, which extension was gra.nted for a term of seven years from June 22, 1872; that the plaintiff thereupon became the sole and exclusive owner of said extended term, and is therefore entitled to maintain an action for the infringements of the defendant, which are alleged to have occurred between .June 22, 1872, and July 13, 1874. That the complaint states a good cause of action is not denied; but it is urged that if the plaintiff is now compelled to set out in hcec verba the agreements between himself and Emory, it will appear that he cannot maintain the action alone, and the complaint will be held bad on demurrer. The purpose of the motion is frankly admitted in the defendant's brief, as follows:
"The only object of the present motion is to have record evidence, which is really in the possession of both parties, which would be clear and explicit. set forth in due form, and not by any language which is capable of misinterpretation. II< · II< If these contracts conveyed the ·improvement,' Emory would be held, on demurrer, to be a necessary party to this action."
Unquestionably it would be for the advantage of both parties, if there is a question of this kind, to have it settled in limine; but when the court is asked to compel the plaintiff to draw his complaint so that it win be demurrable, a very different proposition is presented. The plaintiff sues upon the alleged extension of the patent to him alone; the contracts with Emory are no part of his cause of action proper. It may be necessary to offer them in evidence upon the trial; but it is seriously doubted whether it is good pleading to set out such instruments at length. Equity rule No. 26; Brown v. Champlin, 66 N. Y. 214. The complaint is not indefinite and uncertain. Its meaning is apparent. It states a cause of action in language clear and explicit. , It follows, therefore, that the motion must be denied, with leave to the defendant to answer or demur within 20 days.
UNITED STATES V. HILL
and others. 1
(Oilrcuit Oourt, D. Ma88achus6tta. November 14, 1885.)
CLERK OF DISTRICT COURT-RETURN OF NATURALIZATION FEES-REV. ST.
§§ 828,833. Amounts received by the clerk of the distnd court of the United States for the district of Massachusetts for the naturalization of aliens in that court are not fees and emoluments within the meaning of Rev. St. § 833, and the clerk is not bound t.' include them in his half-yearly returns.
At Law. Charles Almy, Jr., Asst. U. S. Atty., for plaintiff· · John Lowell, for defendants. Before COLT and NELSON, JJ. NELSON, J. This is an action upon the bond given by the defend. ltnt Hill, as the clerk of the United States district court of this district, and is submitted to the decision of the court upon an agreed statement of facts, the material parts of which are as follows: 'l'ht' defendant Hill was appointed clerk of the district court on the fifth day of February, 1879, and duly qualified as clerk, and the defend· ants gave the bond, a copy of which is annexed to the declaration. As clerk he has made half-yearly returns of fees and emoluments received by him, but he has not included in the same the amounts received by him for the naturalization of aliens in the district court. It has been the custom in the United States courts in this district, for a long time, not less than 45 years before the date of the writ in the present action, and known and approved by the judges, for the clerk to charge one dollar as a fee for a declaration of intention to become a citizen, and two dollars as a fee for a final naturalization and certificate thereof; and the clerk of the district court has never included these in the fees and emoluments returned by him, and this has been known to the judges, to whom the accounts have been semi-annually exhibited, and by whom they were passed without objection in this particular. Following this custom, and believing and being informed that these fees formed no part of the emoluments to be returned to the government, the defendant Hill has not included these amounts in his accounts, and this was known to the judge wilen his accounts were examined, and he made on each the certificate required by law; and his accounts so made out up to July I, 1884, have been examined and adjusted by the accounting officers of the treasury department. The clerks of the several courts of the state of Massachusetts made similar charges for like services, and made no returns to the treasurers of the counties of the fees so received until the passage of the statute of the state of 1879, c. 300. Section 833, Rev. St., reads as follows:
"Every district attorney, clerk of a distriet court, clerk of a and marshal shall, on the first days of January and July in within thirty days thereafter, make to the attorney general, in be may prescribe, a written retul'A for the half year ending
circuit court, each year. or such form all on said days,
Affirmed. See 7 Sup. Ct. Rep. 510.