like business. It has reference to the effect of the act of congress, and nothing else. If the defendant company, by a contra(,lt with the city of Dubuque, hB.$ bound itself to allow other companies to use part of its tracks or terminal facilities, this clause of theact'of congress does not affect such a contract or the enforcement thereof. So, also, if the state of Iowa has provided by proper statute that different companies may have ajoint or common use of certain terminal facilities, the rights of the several companies to such joint use are not affected by the provisions of the interstate corrlmerce act, but the same must be measured and determined by the statutes of the state. So far as it 'certainly appears from the record in this cause. the questions necessarily involved'in the controversy between the parties grow: out of the provisions of the statutes of the state, of the ordinances of the city of and of the contract alleged to exist on part of the company in regard to the· use of the side tracks in question, including the power of the railroad commissioners to fix the rates to be paid the defendant for switching the cars of the other connecting companies over· the sid l3 tracks in question. It does n.ot certainly appear that in decidillg the issues, it will be necessary to construe or apply any provision oft:he federal constitution or laws. The utmost that can be fairly saidlil that in the trial of the case, if certain conditions of fact are made to a,ppearby the evidence, a federal question or questions may arise. I f so, and if the protection or defense claimed by defendant underfederallaw is adjudged against the contention of the company, it has 8ecured to it,the right of appeal to the supreme court of the United States. , As the record now stands, it does not appear that a federal is necessarily involved, and hence the record fails to show jurisdiction in this court, and the cause must be remanded to the state court.
w: D. Penn-8yZIJania.
June 17, 1887.)
PARTITION-ALLOTMENT-IN EQ,UITy-ADVANTAGETO ONlll
In a court of equity, in a case Of partition, such part of the land as in"ay be more advantageous to one of the parties, on account of its proximity to' his other land. or for any other reason, will .beallotted to him if i.t can he. done without injury to the others. SAME-aLLOTMENT-IN EQUITY-ACT PA, APluL 22,1856. . The Pennsylvania act of twenty-second April, 1856, which directs that the allotment shall be made to such ,of the parties as shall, "at the return of 'the rule to accept or r"fuse to take at the valuation." offer the highest price above the valuation retiJrned, was intended to regplate proceedings in partition in the common-law courts, and the orphans' court; but proceedings in a COurt of equity, which are to be moulded to meet the v'arylng equities of tho par· ties, are not controlled by the act. cause of .its contiguity and relation to his
1l.SAME-ALLOTMENT-IN EQUITy-PARTICULAR VALUE TO PARTY.
If one of the parties must have, or ought to have,
.propel1ty, justic.e requires that
itsho1llid be assigned to him at wha.t it worth,,,""",its: fair market value to others not So circumstan,ced,-:-Rlld he be coerced by the other party by, means of bidding into paying more. -
On exceptions to master's report. This Was a bill for partition by James Cochran and others, against Geo. K Shoenberger and otherS. Defendahtsfiled exceptions to the report of the master. G, O. BurgW'in, " Gecrrge Jr., for defendants.
AClIESON, J; There is no lack of authority; for the proposition that, ih' 'casesoi' pal'tition, a court of equity, procfledingupon the ground of its general equity jUrisdiction,administers its relief ex l1K[UO et bono, and by its decree adJt!rsts the equitable rights of all the parties. 1 Story, Eq. Jut.§ 656b. where oneijoint owner has put improvements on the property, either the part so improved will be assigned to him at 'the value of the land without the improvements,or compensation will be adjudged to him. Halt v. Piddock, 21 N. J. Eq. 311. Again, such part Of the]and as may be more advantageous toone of the partieS on1Wcount of its· proximity to his' other land,' or for any other reason,iWillbe allotted to him, if ,it can be done without to the JoliJn801t,l Younge.'&C. 538j Hallv. Piddock,8upra; (}aither8v.'BrOOm.,7 B.' Mon. 90;' Graham v. Graham, 8 Bush. 334'. It is quite clear to nie that these equitable principles should have full sway and a controlling effect in the present case, unless, as is claimed, there a positivesmtutOry rule to which the-court" must conform. ,Ii The property here in questidl1consists mainly of coaljand, as the master hasdetennined, it is natul'lll1y elivided by the Hneof the Pitts.;. burgh, McKeesport & Youghiogheny Railroad. into two parts. designated by him as purparts A and B, the former containing 209.58 acres of coal and 3.9 acres of surface, and the latter containing 228.52 acres of coal and about 3.1 acres of surface. l'he master fixed the \'alue of purpart A at and the value of purpart B at $69,175. Purpart A adjoins a tract of land owned by the plaintiffs, containing about 160 acres, upon which theyha'V6,a large coktl plant of 143 ovens, with all, machinery and appliances. A, therefore, has a valuetp :the it is' a,lrlatter of im.. to, tIlll;! it shQuld be allotted to, them. Recognizing their equity thelriaster' ·to,the ,plaintiffs purpart A,and he allotted to the defendants purpart B,chllJ.:gedwith$8,OOO of oW,eIty, to equalize the partition, ',', ,; , ' ! ' _ ' The defendants filed with·the·'IDaster exceptions to his report, one of have called for fl'Q91.the parties to,tQe, C/l,Ul'e ,purpart!!;". and. accompanymg the exceptions,there 'was· a written offer1 onthepart of the· defendants" to take purpart A exacting any owelty from 'pprpart B, iand to pay an ()f, lIPon said purpart A." But the master declined to ohange ,or report, and, without passing upon the excep-
,tions, appended them to and returned them withhi!l. report to the court. Here the exceptions h,ave 8111>een renewed, and thedefendants have also moved the court to set aside the master's and "accept the offer of the defendants to take purpartAat an equal valuation with purpart B, or to take either purpart at ltnequal valuation." No evidence was offered before the master, and has, been presented to thecourt, to controvert the evidence upon which the master fixed his valuations, or to i,mpeach the correctness of the valuations. . The defendants rely altogether (>n their offer, claiming that the case is by the act of assembly of April 22, 1856. (P. L. 534j 2 Purd., 1294, pl. 25,) .which is in the .words following: "IB all cases of partition of real estate, in e.ny court, wherein a valuation shall hav:t'been made of the whole or parts thereof, tbesame shall be to such one or more of the p,arties in interest, who at-all, at the retlU'o Qf the rule to !LCcept or rt>fus'e to take at the valuation, offer, in, the price therefor, above the valuation returned; but if nohtgher offer be made ,foralleh· realestate or any part thereof, it shall be allotted or ()-:dered to be s6ld ,asprovidooby law." , ' " . , 'Whether this statutory right of bidding, if it were showt to be ap. ',plicable tostlits in equity'in the courts of Pennsylvania, is such srule 'ofpropenyaawtlUld contr61 eqUitable proceedings in this court u}JOl'l a ,bill for the partition of real estate, is a question which need not 'be deBn,itively on at this time., The decisions, of the qf .Peimsylvaniaseem to treat,tlie act rather aspresc:!dbing a rUle of pr9cedure,th!3-n as conferring a 'p()sitive right. Atap11'ate, the tendency of those decisions is to restridt the operation of the, act to tHe narrowest limits:. Thus,in Klohav. Rei]s:nyder, 61 Pa. $'t. 240, it ,wlisheld that eacl'cpai1:y can' make one only, and tbat' the parties be compelled hand in their or permitted to s.eal thein, tip ,unt11 the court. shall order them all 'to, be opened. And AGNEW, ;r., speaking 'forthe court, says: , ' ,:,'" . ,',. ','; "The purpose ofthe act certainly was to enable the parties to correct u'nfalrneasOr under:.valuation, and make' the premisescolrimand the nighest price. ·In this, view a second bid would be but fair. But, on the other band. overibiddingleadstounfairness,aD.d incites parties to:a aeries of feints fnbidditig ,W"e,nllople one to Selfish, or eVen mJ\licious, 'pertinac:j.t;y , ,one who must haVe the property to pay than its, ,or gi;eater ",elUth may, for purposes, bid it away frpm one ",liomulJt have it; '" td .. 244. ' , . . ,.,. '" .
.In BartholOme,w'3 .Appeal, 71 Pa. St. 291, it WI.IJ:1 again ruJe.dthat a pll-rty having maqe one, bid was' ,entitled to 8.l1Qtherj, and it was, .held that the, bids should 1>e in writing, that the hind should: Dot ;be offered to any of the heirs unti,lall are brought in'by rule. ,In the ,ofthe opinion ChiefJustice' THQM.PSP1'l', says': "." In; KlOhs v. Reiftmy.4l'/1'., our ,bro,ther A,GNE.w has ,sho.wn, .withstrikiIlg clearness, the 91 Of And in the last (lI.lse, ip whic4 'the COI;ll't, wasealleq onto yonsider the act,. (Wistar'8 AppeGl,'10.5 ,PI:!-' ,St., &9(),) it..was t4at t.he act did nqtapply at all if of the could, as . LI¥'
there 'are heirs. "By its express terms" (says STERRETT, J.) "the section applicable only to cases where an appraisement or va:lu.; ation bas been made and returned." Id. 397. Was it intended that this aet should be obligatory upon courts of equity ,when theV'ery principles Upon which those tribunals originally obtftined jul'isdiction in partition require thatthe proceedings should be so moulded as to meet the vat'yihgequities of the parties? It has not been so deterniined by the supreme court of Pennsylvania, nor by any court, so far as I am vised. In ascertaining the scope of the act of April 22, 1856, ,regard should be had to the state ofthe law at and immediately before the date of the act. In cases of partition there was then no gen!eral jurisdk1ion in equity in ,Pennsylvania. Bya local statute (act of 'Ma:rch 17, L.160; -1 Purd. 694, pI. 22) such jurisdiction existe'd: city and count1' of Philadelphia. But elsewhere the and in thenamedJocalitJ' the usual reme<lies, for enforci,ng partition; were by thecoJ;l:un,QJ;l-!.aw writ and by petition in the orphans' court. Now, in these proceedings, in cases where the iuquestor of partition :returned a valuation of the land as a whole or,iI\par,ts, the right of election was governed by rules having little foungood In"the orphans' court, election was by sex and seniqritY;, in the, the parties were entitled to take aCG9rding.to d,ates oftheirre!'ipE:ptive titles. Act of March 29, 1832; Act of May 5, 1841; P. L. 353; 2 P. L. 201; 1 Pur,d. 1293, , To effeqt such election, after the valuation was returQeQ, the court ,issued a rule u the heirs or parties to comfo j!jl anQ accept or take the land; or parts thereof, at the 1 Purd.541,pl. 165; 2 Purd. 1293, pI. 24. Read in the lighto.ftbese provisions ofthe law, is it not plain that the purpose of ·the, 11M was to ,introduce a m9re :reasonable rule of allotment, and one promotive of better results, than election by sex or by seniority of parTl;1e language of tIle act of 1856, is very apposite, as, apties ,plied to the proceedings in partUio,n in the orphans' court and in the commQnJaw courts,an<l its provisions perfectly fit "into those systems. But botih in ,spirit and in letter the act of 1856 is foreign to the system of equitable partition. Courts of equity were not trammeled by such rules'ofelection as 'above mentioned. 'And then, the language of the 'act is nbt properly applicabletii the course of procedure in a. court Qf equity upon a bill for a partition. Therein no such rule i$ granted as is contefuplated by the act, nor is such rule appropriate to the procedure. 'The thode in whlch partition is effected in equity is that, after the interascertained, a commission is issued to persons nomiriltt\§d by the,parties,orby the court, directing·them to make par:titionb'ftlW estate;'and to al1tittheir respecti\'eshares to the several par'ties,addlo make return of their having done scHo the court. Adams, ;Eq;*23'n: In rn:aki'ng partitioIi the commissioners are: guided by equitifnecessarY,the court will issue special instructions to thetb:; 'and their aetion is always subject to the approval of the court. 'Iui;lStoryv. Joh'fIiB/Yn, 2 Younge & C.586; HdU v. Piddock, supra. ,
The subsequent legislation evinces that equitable partitions are not to act of April 22, 1856. It was provided by the act be regulated by of March 14, 1857, (P. L. 97,) which was supplementary to the abovementioned local statute of March 17, 1845, and is again provided by the general act of May 8, 1876, (P. L. 134; 1 Purd. 694, pI. 23,) that in all cases of partition in equity. after the decree for partition, the cause shall be referred fa a master, or to a master and a commissioner, to divide and partition the land into purparts, and to value the same and fix the ow@lty, and that the master shall then award and allot the purparts to the parties entitled, subject to the approval of the court. These acts prescribe a mode of procedure conforming substantially to the usual course of equity practice in such casps, (Adams, Eq. *231.) and inconsistent with the provisions of the act of 1856. Undoubtedly it would alwaY's be proper for a master to entertain and consider an apparently fair offer by any of the parties to take a purpart at a price above the valua.tion. In some cases it mip;ht well be that allotment upon the basis of the highest offers would be conducive to the general benefit of the parties, and right. But to make this rule imperative in all cases of equitable partitions would tend to defeat the remedial justice peculiar to of equity. Hone ofthe parties must have. or ought to have, a particularpurpartbecause of its contiguity and relation to his other property, justice requires that it. should be assigned to him at what it is really fair market value if offered to others not so circumstanced, -and he should not be coerced by the other party, by means of bidding, . into paying more. . Upon the whole, then, I am of the opinion that the act of assembly of April 22, 1856, does not control this case, and that the master was not bound to call for or accept bids. But the defendants having offered a large advance upon the valuation of purpart A, it would have be.en well for the master to carefully re-examine the grounds of his valuations, to see whether or 1I0t he had fallen into any mistake. This I do not understand the master to have done. Indeed, he reports that he declined to pass on the defendants' exceptions. Therefore, it seems to me proper to recommit the case to the master, with directions to re-examine the. grounds· of his valuations, and dispose of the defendants' exceptions. And inasmuch ·as the defendants have acted under a misapprehension as to the bearing of the act of 1856 upon the case, I think the master should give them, even yet, an opportunity of producing evidence to show incorrectness in the valuations. And, if the case is thus reopened at the instance of the defendants, the plaintiffs should be allowed to present further evidence. And now, June 17, 1887, the case is recommitted to the master, with directions to proceed therein in accordance with this opinion. v.33F.no.7-26
(District Court, D. Colorado. November 28,1887.)
1 JUDIGIAL S4LES-OBJEC'flONS TO MaSTER'S SALE-LAPSE OF TIME.
Objections that a master's sale was not published the length of time required by IflW by but one day, and that, through his incompetency, part of the property was sold for less than it could hflve been sold for, mlide two years after the sale, canpot beeustained, as th41Y should have been made nromptly. A master's deed, for property sold by him after he filed his report, is void.
SAHE-DEED:-EXECUTION BY. MAIl'J.'ER-AFTER FILING REPORT,
Motion to Set Aside Master's Sal,e and Deed. Duncan McBride filed a bill in chancery, OC,tQber 24, 1884, against George R. ,Gwynn, James Moynahan, and the Great West Mining Company ,to foreclose a trust deed securing the paYIDent of $3,000, loaned by McBride to the company. The trustee named in ,the deed was D. C. Cra"W'ford, who refused to make sale; hence this, application to the court. which the trust Gwynn and Moypahan claimed to own and were brought in as defendants. Leave was,granted deed was plaintift'Aprij. 6; 1885, to file an /!mended hill,makiIlg JamesM. Stric1\ler, trustee of t4e company, and Alfred H. all<l Randall W. Wiland on son, granteesa11d assignees of <;}wynn and .the same Wilsons and Striclder their answers admitting that the trust deed from the company to McBride was a prior lien, and conse.nted for complainallt. ,On the.second day, (rule.:day,) the default ohll, defendants was entered by the clerk; a,nd a decree fO,r complainallt'wll,s entered June 8,1885, finding.thecompaqYindebted'to McBride, $1,916, the payment of which was secU,red. by the trust deeQ; and special master ,to make a sale of property under the deed of trust. . Complainant Wed a petition, Septemissue a to,hinl, ber 7, 1885,asking that the w:hichWIlS, denje<:I on the same day, .and the master was ordered to read.v¢rtise and resell, The master filed. his report January 14, 1886, and the company. filed exceptions .to the report ofsale October 14, 1887. The company fiXed a motion October 28, 1887,)0 set asjdElthe master's for the f9110wing reasons: (1) Th(l report was not confirmed; (2) tpe master had no authority to eXeCl:lte the dee<l,llDtil the was con,.firmed; and (3). the report of sale pending ou'exceptions' to its tirmation..,' . H. B'.Johnson, for the motion. Hugh ButUrr' opposing.
HALLETT, J. I The circumstances case Ij,resowewhltt nary. The sale was made something over two years ago; and the property, which was regarded by the parties as of the most value at the time of the sale, and perhaps ever since that time, was redeemed from the sale, so that at presert there is no questi9n affecting the defendants' title to