(Oii'cuit Oourt, D. South Oarolina. December 18,1888.)
EQUITv-JURIsmCTION-ADEQUATEREMEDY AT LAW.
In thfs case the use was not executed upon the death of the married woman If'she failed to exercille the power of appointment, but the leg-al estateremainedlbithe trustee, 'and his devisee, a volunteer, took it and the property co .by the trust.
The devise to'A. was updn trust to convey the property to the state of South :Carolina upon certain conditions; ignoring the claim of complainant. The devisee, after this biU was .:filed and ,subpwna served, addressed a letter to the general assembly of South Carolina asking its acceptance of the property, and of the conditions annexed to it; The general assembly at once put ah act on its passage for this purpose. Held, that the right of complainant to assert her claims iu this CO,urt,was imperilEld, and an interlocutory injunctiQn was issued. , . ,
When a defendant pendente lite in a circuit court of the United States seeks 'tl> convey the land, the subject of controversy, to a state, he will be restrained . by injunction. rSgllabusby ilteOourt.}
SAME--:'AGAINST" CONVEYANCE TO STATE.
.. InEquity. :On motion for preliminary Bill by Isabella Lee,: an infant, by proch6'in ami, against Richard Simpson. Le Roy F. Youmans and James P. Carff!j, for complainant. < ,Wells &: Orr and Smythe &: Lee, for defendant.
From the.s¢ it appeal's thatMrs. Floride Calhoun,the grandmother ()f the mpthel',ofthe complainant, left in force a last will and testament. . That in clauses of this will she gave to Edward Noble. as trustee. a fund then invested in the bond of her son, Andrew P. Calhoun, secured by a mortgage of Fort Hill plantation. in Oconee county, and certain slaves. The purpose of the trust was that the fund be held for the sole and separate use of Mrs. Anna M. Clemson, for her natural life, with a power of appointment thereof by a last will and testament, as she pleases; and, in default of such appointment, to her daughter, of whom the complainant is the only child. That proceedings were taken in the life-time of Mrs. Calhoun to foreclose this mortgage. These proceedings were not consummated until after her death. At the sale for foreclosure the plantation of Fort
QO'lUes u:B on
bm. answer. affidl;tvits, with exhibits,
J. This is a rpotion for a preliminary injunction. It
Hill was purchased by Thomas G. Clemson, who had in the mean time been substituted a$ trustee in lieu of Noble, and a conveyance thereof was made to him as such trustee under the last will and testament of Mrs. Floride Calhoun. Complainant alleges that the purchase money was paid by a receipt for Mrs. Clemson's share in the bond. Defendant avers that this share was supplemented by moneys of Mr. Clemson to the extent of some $6,000. Mrs. Clemson died in 1875, some years after this conveyance, leaving, it is said, a last will and testament. Complain. ant charges that she did not execute the power of appointment by reason whereof the property devolves on her. Thomas G. Clemson, so being in possession as trustee of his wife, remained in possession of Fort Hill after her death, continuously until his own death, in 1888. In his answer the defendant avers that Clemson left a last will and testament, with a codicil, wherein he was named as executor, and whereby the Fort' Hill property was devised to him upon certain trusts. In the exhibit ishia letter to the general assembly, and copy of this document, wherein it ap· peara that he was the devisee in fee of this Fort Hill that the trust was to execute a conveyance thereof to the state of .south Carolina, upon the acceptance of the gift thereof on certaincQnditioDIJ by the said state. On the 4th Decem bel', tpedefendant ,sent in to the general assembly of South Carolina, then in session, his saicUet. tar, accompanied by a copy of the said will, and in it asked. tlJe lacceptof this property thus given, on behalf of. the state. This billwll,s served on de.fendl;lnt tiled on 26th November, 1888, and on 28th November, 1888. The motiqn is for a preliminary injunction, based on this letter of the defendant and the action. of the general assembly thereupon. One house has passecl the bill accepling the gift, awl the bill is now on the calendar orthe otlIerhouse, awaiting early consid.,. eration. The general assembly proposes to adjourn ata n(}t distant day. As we have seen, the defendant has answered. But in his answer he makes defenses properly made by demurrer, and craves the same benefit as if he had formally demurred. We must therefore them with the other grounds of defense in the. answ:er, and not pass On the bill alone. The demurrer is to the jurisdiction,"""'"":'that thecomplainant has a plain, adequate, anclcompletererpedy atlaw. While iUs true that in deciding upon motions for preliminary injunctions the courts must provide for the preservation of property or rights in statuqu</ without ·. and, indeed, withouthav.ing the means of forming, an opin.. ionas to such rights, (1 High, Inj. § ,5; f4;t,ilroad Co. v.J,unction CO' 1 22 Ch. 602,) yet, when the jurisqietion oitbe court is that question must be met and decided, Tbe PQsition fendant is this: Complainant alleges ;tQats4,eis the of tbis the qfMrs. CalhouIl;. 'Tl!l.e fend ant claims the fee under the will of Clemson. It is simply a question 'of title, cognizable by a court of law. ' Ihsuchau' actiona;Judgment can be liad for'the' rents and profits... There i8 no occasIQnand:Ilb equity.' pf foom for thepeculiar'jurisdictiqn impressed with 'a trust.tbe
this trtistClemson 'became the trustee; and so remained, certainly, up to the death of his wife. After har death he continued in possession. Did his relation to the property change at the death of his wife? The complainant charges that he held the property in trust for his wife for life, with a power of appointment in her at her pleasure by will, and, in default thereof, to the limitations of Mrs. Calhoun's will; and that there was a default in the exercise of the power; that thus the legal estate remained in him, subject to these limitations. There is nothing before the court going to show that Clemson ever disavowed this trust, or that he gave any notice of his holding in his own or in any adverse right. If there was, it could not avail as against complainant,then and now an infant. Nor is there any place here for an executed use, devolving the legal title on the complainant. The property Fort Hill was purchased by Olemsun at the master's sale. In paying the purchase money, as defendant claims, a part of it only was paid by the money provided undel" Mrs. Calhoun's will. The remainder was supplemented by himself out of hisown funds. The conveyance to him was as trustee for Mrs. Clemson under the last will and testament and codicil of Mrs. Calhoun. This was confirriled by the court. The legal title was thus fixed in him, and could not pass 01lt of him but by his deed or will. He made no such deed in his life-time. By his' will he devised the property to the defendant, a volunteer, and so charged with all the equities with which his testator held it. The legal title being thus in Clemson, no suit at law could have been maintained against him for possession during his life. Nor can such suit be. maintained at law against the defendant, his devisee of the legal estate. Whatever may be the final conclusion of the court on this point, the above reasons are sufficient to prevent the dismissal of this bill, or the refusal of this motion on the ground of a want' of jurisdiction. Do the circumstances of the case warrant a preliminary injunction? The defendant, as we have seen,wns sf'rved withsubprnna ill this cause oli 28th November, 1888. The bill gave him notice of the claim of complainant, and her prayer for an injunction against him. On the 4th December, 1888, he addressed his letter to the general assembly of the state of South Carolina. This, with the document accompanying it, inforJDed the general assembly that he waS the devisee in fee for the Fort Rill plantation, and that he had the right to convey it to the state of South Carolina upon compliance by the state with certain conditions therein stated. Thereupon he requested the general assembly to accept the property thus II donated for and in behalf of the state. " Upon receipt of this letter, both houses, as has been stated, tookactitm, and that promptly Bills were introduced illtoboth houses accepting the gift. In each hill in'each house is this section as section 1:
, "Section i.. That the state of South Carolina hereby expressly declart's that accepts the devise and bequest of Thomas G. Clemson, subject to the tprms and' conditions set furth in his last will and testampnt, and that the treasurer of the state be, and is hereby, authorized lind empowerpd to receive and se-eurely hOld the said prol'erty, both real and personal, alid to execute all nec-
LEE ". SIMPSON.,
essary papers and receipts therefor so soon as the said executor shall convey and transfer the said devise and bequest to the state, as aforesaid." This bill has passed' one house. It is under cdDsideration, with every prospect of its passage, in the other. It may very soon-in a day or two-become a law. If it does become a law, the property will be taken \ out of the jut1sdiction of this court. No process can make the state of South Carolina a party to this suit. It can have no jurisdiction over the state in a civil action, except with her consent. So far as plaintiff's Tight to Tecover this plantation is concerned, if she has such a right. it will be irretrievably lost if thelegal title be conveyed to the slate. It is idle to say that the, state will recognize and accede to the decision of this court if itestabli'3h any rights in complainant. Courts of justice , -enforce theh- decrees by mandates whose sanction is the court. No de-cree or mandate can be entered or issued obedience to, which depends upon the 'Will or courtesy of the party against whom' it may be made. Without deciding, so as to commit the court, any q\iestion of right or . property madeinthe papersBubmitted, and solely ,with the purpose of preserving the status quo, this motion will be granted. Thete it'! a principle which governll nearly all on applications for preliminary inme. i When th,e danger or injury threatened ii:! of. a , character which cannot be easily remedied.if the injunction be refused, and there is no doubt that the act,charged i$ contemplated. the temporary injunction should be granted, unless tlw case made by the bill is satisfactorily refuted by the defendant. ' U. S. v. Duluth, 1 Dill. 469, , ' ',,", '" ,f " The ,has brought her action against the defendant, as ,execulor,but in his personal,character. He is devisee of the Fort Hill plantatioqaswellas executor. As such devisee he takes the legal estate" chllrged with the equitiel;l, but not with the def<l.ults, of his te&tatQr· . If there, he any ,'account for the rents and profits received by Clemson in his life-tiriJ.;e, for such defaultR. W. Simpson, ,executor, quaexecutpr· . is not R. W. Simpson, devisee.. He tabs the property,if he notice of the trust, responsible only for his own enjoyment of the rents and profits. For the same reason, the defendant not being .a. party as executor, these proceedings cannot 'affect him so personaJty in his. hands tp be adminiStered as execut,O;r'is concerned. The intherefore, must be confined to Fort Hill plantation. , This caQ.se came to be heard on motion for It preliminary injunction upon, the bill,a'nswer. affidavits, a,nd exhibits. After hearing the same .and thereon, and upon due considerationtnereof, it is ordered. , .adjudged, and decreed that a writ of injunction do issue to the defend.ant, Richard W. Simpson, enjoiningal1d restraining him froin executing .mid delivering any deed or deeds ·of conveya.nceof,or partillg with the Fort Hpj plantation, as described, in the ple!ldings of this case, ,to, any person or persons, or to or fo).' any uses, intents; aHd purp'oses':vhil.tsQever, ,especially to, .the state of South' Carolina. or W any person, or behalf of the Said state. ,This order ,arid writ to in force until the JU,rther of this CQurt.
al. v. WEATHERHEAD d
(Oircuit Court, D. Rhode Island. November 15,1888.
EQUITY-I'RACTICE-MoTION TO DISMISS AF'fER DECISION AN'!> REFERENCE TO MASTER.
After a suit has been decided in favor of the complainant, and the cause reo ferred to a master to take an account of damages, the court will not reverse its former decision and dismiss the bill, where the alleged errors concern only disputed questions of fact, and the'defendants do not point out any clear mistake of law. or clear and decisive mistake of fact.
2.'E'ATENTS FOR INVENTIONS-INFRINGEMENT-MEASURE 011' DAMAGES.
In an account taken to ascertain the profit of using the Coupe machine for stretching raw bides whole, described in letters patent No. 213,323, it is proper 'to comparetbe profit of using this mal'hine with that of the former machine used for that purpose, and not with that of machines which stretch hides after they have been soaked in salt and alum. or with hand labor, since a raw hide ,cannot be thoroughly stretched by hand.
In Equity. On motion to dismiss and on exceptions to master's report. Action by William Coupe and,others against George Weatherhead and others for an infringement of letters patent No. 213,323, issued March 18, 1879, to plaintiff Coupe; 'Benj. F. Thurston, for Walter B. Vincent, for defendants.
COLT, J. This case now comes before the court on motion to dismiss, and exceptions to themaster;s report. In 1883, upon a full hearing of the case before two judges, the court determined that the defendants infringed the first and third claims of the Coupe patent, No. 213,323, and the cause was sent to the master to take an account. 16 Fed. Rep. 673. The present motion to dismiss is founded upon the proposition that this court may, at this stage of the cause, if it discovers that it has made a mistake, reverse its former decision, and dismiss the bill. Without questioning the rule that a court may at any time correct a mistake while the case is within its control, yet, where a cause has been deliberately heard upon pleadings and proofs, and a decision reached, and the party has Ii right of appeal, before the court should reverse a former decision, it must, be perfectly clear that an error was committed. In the present case I am unable to reach such a conclusion. Thedecision turned largely 'upon questions of. fact, and the defendants now seek to have the same , issues of fact which were decided against them- reviewed again by this court. Clearly such a practice as this, if countenanced at all, should be ',' most carefully guarded, and the defendants should show a clear mistake :, oflaw, or point otita clear and decisive mistake ,affact, before the court ,should entertain at this stage of the case a motion to' dismiss. In' the ,present case. I am not referred to any such mistake of law or fact, though " lam aware that defendant's counsel insists that with respect to certain -disputed questions of fact the additional evidence taken before the master shows that the court waS hi errot in some of its otiginal findingsj but