MISSISSIPPI VALLEY BANK et aI.
(Oircuit Oourt, S.
January Term, 1888.)
H. was owner in fee of a tract of land which he conveyed to W. for the sum of $800 in cash, ,paid at the time. The conveyance was absolute on its face, and was duly aCknowledged and recorded. SUbsequently B. repaid to W. part of the money received, and procured W. to convey the land to K., by deed absolute on its face, K. paying to W or to B., who paid it to W., the balance of the money with interest received from W This deed was dulY acknowledged and recorded. B. joined in the deed from W. to K.; conveying all the timber cut or to be cut on the land. W. also in her deed all the tim· ber cut or to be cut on the land to K. B., at the time this peed was executed, with theamQunt so paid to him by K.. was indebted to K., or the bank of which he was cashier, in the sum of $4,550.26, for which he gave his two notes, Two days after the deed was executed K. addressed a letter to B. in which he prom· ised, upon the payment of these two notes, to l;onvey the land to anyone whom B. might designate. Subsequently the b.ank and K. became insolvent, and the land was levied upon by G., a creditor of K. Bnd the bank, upon which judgment was rendered. B., another creditor of K. and the bank, sued out an attachment, and garnished B. as debtor of K. and the bank, The creditor had no knowledge of the letter or defeasance of K. to B. Held, that G.'s at· tachment fixed a lien upon the land for the amount f his judgment prior to any indebtedne,ss from B. to K., liable to the garnishment of B. against K. or the bank.
(S1/UabU8 by the Oourt.)
In Equity. On motion to set aside decree. L. Magruder, for defendant Bowles. M. MarshaU, for defendant Gilbert. HILL, J. TIre questions now for decision arise upon the motion of Mrs. L. H. Bowles to set aSIde a decree theretofore rendered in this, cause, upon the petition of James H. Hays, exhibits and agreed state of facts, and to have the proceeds of the sale of the land described in said petition paid over to Mrs. Bowles. The question is, was the decree sought to beset aside right or wrong? If wrong, it ought to be set aside; but if right, it should stand, and the fund arising from the sale should be paid over to Mrs. Bowles. From the exhibits and agreed state of facts, the following is made to appear: Hays was the owner of the land in fee. andpl'ocured from Mrs. Mary Walsh the sum of $800, and, eithenn payment for the money or as rity for its repayment, executed to her a deed in fee, absolute on its face, conveying to her the land described in the petition, which deed was duly a.cknowledged and recorded. Some time after this was done, Hays repaid to Mrs. Walsh a portion of the money received from her, and procured her to execute to G. M. Klein, as cashier of the Mississippi Valley Bank, a deed absolute on its face to this tract· of land. Klein paid to Mrs. Walsh the balance of the money, with interest so paid by her to Hays. Hays at the time owed the bank other debts which, with the Bum so paid to Mrs. Walsh, amounted to the sum of $4,550.26, and for which he executed his two notes. Two days after the execution of the deed, Klein addressed Hays a letter, as follows: v.36F.no.2-7
"VICKSBURG, MISS., April 25, 1879. "James J. Hays, Vicksburg, M£ss.-DEAR 8m: I hereby agree to make to anyone whom you Illay designate a deed to the property, purchased by me from Mrs. Mary Ann Walsh, upon the payment to me of your two notes of twenty-one hundred and eighty-five dollars 31-100 ($2,185.31) and twentythree hundl:ed and sixty-four 95·100, ($2,364.95,) in accordance of the terms of said notes. I further agree to refund to you the interest at the same rate as charged you upon any credit that may be made on said notes, and to credit you. with all money collected from the steamer Vicksburg claim in my hand. "Yours, respectfully, GEO. M. KLEIN, Cashier." credit9r of the bank or of J. A. & G. M. Klein, who composed the bank a6rivate bankers, sued out his attachment against them, and Gaused the sa'ffie to be levied upon the interest ofdefendants in the land conveyed to George M. Klein, cashier, and has obtained judgso ment thereon in the circuit court of Warren county. Mrs.L. H. Bowles, another creditor of the Kleins, or of the bank, sued out her attachment court against said. Kleins, and caused Hays to be summoned as a garnishee; to answer what sum he was indebted to said Kleins, who ans'\Yeted that he owed them or the bank the sum of $1,000 on said notes. ,Hays filed his petition in this cause against said Kleins and the receiver, alleging that the deed to Klein of the land, though absolute on its face, Was in fact only a mortgage to secure the payment of said notes, and exhibited with his petition, as part thereof, the letter written by Klein to him on the 25th April, 1879. Ua.ys, in his petition,alleged that he had been summoned as a garnishee in the suit above stated, and prays that the said deed be declared a mortgage, and that upon the payment of the said sum of $1,000 the title to said land be vested in him. By consent of all parties, including Mrs. Bowles,the case was submitted to the court upon the petition,exhibits, and agreed state of facts, for such dooree as the court might deem to be the rights and equities of the respective.parties. The court, upon examination and consideration of the questions involved, found that, as between the bank or the Kleins and HaySI the deed conveyed the legal title to the lands to said George M·. Klein as. cashier of the bank,with the obligation of Klein to convey the title to Hays or any other person designated by him upon payment of said notes; that the legal title to the lands being in said Klein, absolute on its face,· as it appeared on the records, without any notice of any defeasance or other equity to Gilbert, or other creditors, the land was subject to the at- ' tachment of Gilbert; which fixed a lien upon it for the payment of the judgment lI.fterwil.l'ds recovered in said suit, so far as it related to the title· of said. Klein in said land, and which would pass to the purchaser under ma,de·for the satisfaction of the judgment rendered thereon; but that Hays. upon the payment of the balance due Klein, would be' entitled to a conveyance of the land, which, if paid· by Hays, would go to Gilbert: .As the land had not been sold, it was agreed that it should be sold,· and that, ifit sold· for more than enough to pay the balance due to Klein, theb81ance should be paid to Hays. It was further held· that, as the attachment of Gilbert was served before the garnishment of Mrs. Bowles, she could take nothing.by her garnishment until Gilbert's
NORTON V. TA-fING"DIStRICT
jud.gment was'paid.Tbi(j1and\Vas sold, but flidrtot bring enough to pafr GilbetVs· jtrdgtnent,so that neither Hays, nor anyone claiming through him, has: any interest in the proceeds of the sale. To sustain the motion in this case, it is insisted with great earnestness that the possession of Rays , in continuing to cut and remove the timber on said 'land, and by the temporary sheds or camps in which his employes staid while so employed, was notice to the world that the deed was in fact a mortgage, and of his title as a mortgagor, and that Klein's interest as a Illortgagee was not subject to Gilbert's attachment, but cOurd only berellched by garnishmerit or bill in equity; that as Gilbert did not pursue either remedy, and as Mrs. Bowles did pursue the remedy by garnishment, she is entitled to the proceeds of the sale of the land. But Hays having joined in the deed conveying the timber on the land out, and to be cut by him, his possession was entirely consistent with Klein's title under his deed, and left Gilbert with no notice, actual or tive, of Hay's equity in the land, or that he was indebted to Klein or the bank in any sum whatever, so that Gilbert had a right to suppose that Klein was the legal owner of the land. without any equity or claim against his title, and hence his right to pursue his remedy by attachment. The questions raised have heen ably presented by counsel in favor of the motion, but I am unable to find any error in the decree sought to be set aside. Therefore, the motion will be overruled, and an order entered that the proce.eds of the sale be paid over to Gilbert.
NORTON V. TAXING DISTRICT OF BROWNSVILLE.
Tennea8u. June, 18BS.)
MUNICIPAL CORPORATIONS-BaNDs-AuTHORITY TO ISSUE-STATUTEs-RE· PEAL BY CONSTITUTION.
An act authoriZing a municipality to issue bonds upon a majority vote of the qualified electors is abrogated by the new constitution of Tennessee of 1870, taking effect before the election is held and the bonds are issued, and requiring a three·fourths vote to pledge the credit of the municipality, al· though at the election the new requirement as to the vote be complied with , in fact. So held by the former circuit judge. the district judge dubitante.
STARE DECISIS-PRACTICE IN FEDERAL CIRCUIT COURTS.
If municipal bonds be declared invalid by the judgment of one of the judges holding the circuit court, and the case be pending on writ of error in the suo preme court. in a subsequent suit involving the same bonds, tried by one of the other judges holding the court. the former judgment should be followed, notwithstanding anydifference of opinion as to the validity of the bonds, until the supreme court has pllossed upon the questions involved by the controversy.
At Law. On motion for new trial. Suit upon coupons of bonds in aid of a railroad1col'poration, issued by the defendant in pursuance of an act, of the legislature of February 8, 1870, c. 55, upon ali flection held June 13, 1870, under anordi-