GLENN v. PRIEST;
It is claimed that no costs before the master should be allowed, because it is stated that the defendants failed to establish a considerable part of their charges. On the other hand, it is stated that the orator made no offer of any compensation, and compelled the defendants to proceed before the master to obtain any. 'rhe costs before the master stand by themselves, and are to be allowed or disallowed according to the allowance made by him or the facts stated by him in his report. Nothing is said in this report upon this subject further than to state the amount allowed, and on that statement the defendants appear to be entitled to the costs before the master. Objection is made to the fees of two persons claimed to be taxed for as witnesses before the master. The master states that they did not testify before him, and "for what purpose they were called did not appear." He has not allowed or disallowed their fees, but submitted the question to the court. There is not enough stated to show that they should be allowed; and, as he has not allowed them, they must stand as disallowed. Report accepted and confirmed, and orator decreed to pay to defendants the sum of $1,046.92, mentioned in the report, with costs, except for the two witnesses who did not testify before the master, within 20 days.
GLENN, Trustee, v. PRIEST, Ex'r. SAME v. MELLIER. SAME v. Foy. SAME V. PRIEST. SAME V. DORSBEIMER. SAME V. HUNT. SAME V. TAUSSIG. SAME V. LIGGET. SAME V. DAUSMAN. SA.ME V. NOONAN and others. 1
(Oircuit Oourt, E. D. Miasouri.
October 16, 1886.)
AsSIGNMENT BY INSOLVENT
CORPORATIONS -LIABILITY OF STOCKHOLDERS CORPORATION.
Where an insolvent corporation assigns all its property, including unpaid stock subscriptions, to trustees. for the benefit of creditors, and ceases to do business, the liability of stockholders on their subscriptions becomes absolute at Once, "or. at leas.t, within a reasonable time thereafter," and the statute of limitations begins to run in their favor, as against the trustees and their successors.
STATUTE OF LIMITATIONs-,-CmCUITOUs METHOD OF COLLECTION.
Where the law furnishes a party with a simple method of against an ultimate debtor, he cannot prevent the statute of limitations fwm running against him by a circuitous legal proceeding.
In Equity. Demurrers to bills. See 23 Fed. Rep. 695, and 24 Fed. Rep. 536. T. K. Skinker, for complainant. W. H. Clopton, for :Fay, Priest, and Dorsheimer. C. M. Napton, for Hunt.
by Benj. F. Rex, Esq., of the St. Louis bar.
Geo. W. Taussig, for Taussig. Smith II Harri8on, for Liggett and Dausman. Tho8. O. Fletcher and Geo. D. Reynolds, for Noonan and others.
BREWER, J., (orally.) In the cases of John Glenn, Tru8tee, v. John G. Priest, Ex'r, and others, bills and petitions were filed a year or two ago in this court, to which petitions and bills demurrers were presented and argued, and the demurrers sustained. Amended bills and amended petitions were filed, re-argument had, and demurrers again sustained. Now, the same questions are presented by new suits, both at law and in equity. Counsel for the plaintiff, encouraged by the opinions of a number of judges elsewhere, expressed in the intervening time, adversely to the views of this court, made before us a most elaborate argument, and filed with us a most exhaustive brief, in which he has taken up the various suggestions made by this court in its opinions, and has criticised them with a great deal of force and ability. I confess, speaking for myself personally, that the argument and the authorities have in no slight degree shaken my confidence in the strength of the positions assumed, and the arguments made, by the court at that time; and yet, while it has shaken my convictions, it has not overthrown them,-it has not changed them. I cannot escape the conviction that no mere strategy of legal proceeding should enable a party to jump the lengthened space of 18 years, and destroy the beneficent and healthful effect of a statute of repose like tbe statute of limitations. It would be a waste of time to restate the argument as it was stated heretofore, or to attempt to enlarge upon it, in view of these authorities and this argument. So far as my own opinion was announced, I should want to change some portions of it; and yet the substance of it would remain, and that is all that is vital. My co.nvictions, and I believe those of my Brother TREAT, are unchanged, (Judge TREAT suggests that his are more positive.) We think that the statute of limitations does stand as a bar to a claim which could have been enforced by proceedings 18 years ago, and, with all respect for the various judges who have expressed different views, we can do no otherwise than sustain these demurrers.
OYSTER G. OYSTER.
and. others v.
«(Jirc'Uit OO'U'1't, E. D. MiB80'Uri. October 16, 1886.)
TRUSTS-PLEA PRO TANTO.
Where the purpose of a bill in equity is the enforcement of an alleged trust, and rights springing therefrom, a plea in bar to so much of the bill as asks for the enforcement of such trust, setting up a prior adjudication against the complainant, is good.
SAME-DECREE WITHOUT PREJUDICE-PLEADINGS.
Where a suit in equity, brought to enforce a parol trust, was submitted on the pleadings and proofs, and a decree was entered dismissing the bill "without prejudice to any parties to enforce" a trust created by a certain deed to one of the defendants, and without prejudice to any of the rights created by a certain will, h'eld, that this was a final determination of the merits of the controversy, and settled the question of the existence of the parol trust against the complainants, and that the decree could be pleaded in bar in a subsequent suit by the same complainant to enforce the same trust.
In Equity. Demurrer to plea. See 22 Fed. Rep. 628, and 19 Fed. Rep. 849. James Carr, for complainants. Dryden ct Dryden, for defendants.
BREWER, J. In this case a bill in equity was filed some years seeking, in behalf of the children of David Oyster, to enforce a parol trust created at the tim'e of an administrator's sale, and also to enjoin certain judgments in ejectment. That case went to hearing, and a decree was entered dismissing the bill, upon the pleadings and proofs, I but containing a reservation of this kind:
"Without prejUdice to the rights of any parties to enforce a trust created by a subsequent deed from Simon K. Oyster to George Oyster, one of the defendants, and also without prejudice to any of their rights created by a will of the ancestor of these parties."
Now, a new bill has been filed by the same complainants, containing the same allegations and others, but seeking to enforce that same parol trust; and counsel for complainants insist that the decree heretofore rendered was not a decree upon the merits, but left the whole matter open for inquiry. We have no doubt but that the language of the decree expresses just what was the intention of the court at that time,-a determination of the merits of that inquiry,-and that the question as to whether there was or was not a parol trust was set· tIed by that decree adversely to the complainants. To this bill, or at least so much thereof as asks for an enforcement of the parol trust, up that former adjuthe defendants have filed a plea in bar, dication. An inquiry arises whether the plea should not have been broader and run to the whole bill. It is possible it should have been, because the whole cast of this bill is for the purpose of enforcing that parol trust, and rights springing therefrom, and that has been adju.
lReported by Benj. F. Rex, Esq., of the St. Louis bar.
dicated against the complainants. There is no doubt that it was so adjudicated.' The demurrer to the plea will therefore be overruled, because there has been a former adjudication, so intended, and so expressed, in the language of the decree as to be beyond any possibility . of misconception. Treat, J. I would remark to counsel that the plea Beems to be, in one sens.e, a plea pro tanto. It might have been a plea in entirety. Mr. Dryden. I intended to make it a plea to all of the principal relief sought. Treat, J . .The only question, then, as Brother BREWER says, is on the demurrer. Brewer, J. The entry will be, "Demurrer to the .plea overruled."
& S. C. R. Co.
(Oircuit Oourt, N. D. Iowa, E, D. 1886.)
RAILROAD COMPANIES-MoRTGAOE-BONDS-DEED OF TRUSTEES OF RAILROAD MORTGAGE-CONTRACT TO CONVEY.
Where a holder of bonds .of, a land-grant rl).ilroad, by a mortgage to trustees of its franchises and lands. accepts a proposition from the railroad and trustees to receive certain lands in payment of his bonds, and takes a deed therefor executed by the trustees. the participation of the railroad iu the contract to convey estops it from setting up the absence of authority of the trustees to execute the deed to convey the lands in question in an action on a covenant in the deed that the railroad will warrant and defend the title.
SAME-REORGANIZATION-NEW RAILROAD COMPANY TAKING RIGHTS AND LIABILITIES OF OLD.
Where plaintiff has accepted a conveyance of lands in payment of bonds secured by mortga/l:es of the lands and franchises of a railroad company, and its entire property has passed to defendant company under a decree of foreclosure of the mortgages, in which decree it is declared that the defendant company "is a new company. formed * * * for the benefit of all parties concerned in"the former company. "whether as stockholders, bondholders, or creditors," it being expressly provided that "this decree shall not absolutelybar.foreclose, or cut off any of the indebtedness aforesaid, but that the holders thereof shall be entitled to have and receive of" defendant company stock according to other provisions of the decree, .defendant is liable on the covenant of warranty in plaintiff's deed. .
In a decree of foreclosure under which a new railroad company takes all therighta, and, by giving. stock therefor, assumes, all the obliglttions, of a former railroad company, a provision "that it is only such persons as consent to cOllle blunder the provisions of this decree that shall be entitled to receive stock." etc., means that all persons availing themselves of the benefits of the decree shall be deemed to have consented thereto, and not that a claimant, in .. order to avail himself of the benefit of the decree must have been a party to the foreclosure stiit.
SAME-DECREE MAKING ACCEPTORS OF BENEFIT CONSENT.
In Iowa, a covenant of seizin. runs with the land, and the statutory limitation does. not begin to run until there has been an actual and substantial breach of the warranty.
Demurrer to Petition.
J. D. Springer, for compla.inant.