DE GUIRE ".8'1'. JOSEPH LEAD·
propriated." . I am satisfied from these considerations that in the former decision we did not give sufficient consideration to all the clauses of this order of June 28th, and by reason thereof we were led to make an order in favor of the intervenor, to which he was not entitled, and which was entirely out of harmony with the other administration of this foreclosure. Therefore, our attention having been called to it by this petition for a rehearing, we change the order heretofore entered to another one, in favor of the respondents and against the intervenor. I am also inclined to think that possibly one or two other reasons given by the respondents are sufficient to compel the ruling we now make, but I do not"care to enter into any discussion of them. As 1 said in the fonner cpinion, the amount in- . volved is so large that, if we have made a mistake, it can be corrected in the supreme court. The report of the master will be confirmed, and judgment entered the intervenor for costs.
W81Tants drawn upon a treasurer to. be paid out of funds not hereinbefore all" .
DE GUIRE et al.
E. D. Mi8souri, E. D. March 20, 1889.)
It is a good defense to an eje.ctment that plaintiff's title is derived from a conveyance to her in fraud of her grantor's creditors, one of whom afterwards obtained a judgment, and issued execution under which tbe land was, , sold to defendant's predecessor in title, such fraudulent conveyance being' Toidby the state statutes. . .
It is immaterial whether the execution· creditor was or was not the purchaser at the s a l e . ' .
Defendant may rely on his equitable title and possession, and need take no action to obtain the legal title, and lapse of time, therefore, does not affect his right to interpose the defense.
At Law. On demurrer to defense. Ejectment by Emily and Paul W. De Guire against the St. Joseph Lead Company. George D. Reynolds and Samuel L. l8bell,· for plaintiffs. Oharle8 Nagel, for defendant.
there is a demurrer to one defense. The action is in ejectment. That defense is that the female plaintiff holds title by deed from her fathel·,
187 Fed. Rep. 668.
J. In addition to the motion heretofore decided by me, l
since.· was. a cOllveyapce without consideration, and in fraud of the riglits of the grantor's creditors, he being. , then hopelessly insolvellt. Subsequently one of these creditors put his claim ill judgment, ca,used execution to be issued and theproperty,Sold, and. at the sale itwas bid in by a third party , under whom the defendant claims. Tilis saleW.lJ.S'lAade over 20 years The demurrer rests upon three one is that. whatever defense. exists is purely grounds. equita1;lIe,8,pd as against a legal title can only be asserted after judgment by a bill in In the cases of Dickerson v. Colgrotoe, 100 U. S. 578,. ' U. S. 68,tlle supreme court of the United. and .Kirk a law action inw4ioh the, States held that, in>an actjon of legal prevlj,ils,a Gefense base,d llpon an equitable estoppel could f be;sustaine4. 'J,'he action being one, a defense based up0Il; , was not to the p03-, . equitable estoppelshq'Yed that m,d,jw.as available in an I;¥ltion l;l.t law., In this case the defendant has a legal title,-:--a plaintiff's grantor, by execution, sale, and deed. The statutes of Missouri make a con- . veyance by a debtor in ,fraud of the rigbts of tp,e creditors clearly and utterly void as against them. And, while there may be some doubt on the matter, I think that this defense is one which can be successfully interposed in an action of ejectment. A second ground of demurrer is that the answer does not show that the creditor washimsel(the purchasyr. ,.. If the suit was at the instance of 'theriexisting creditor, and that suit passed into judgment, eX!1c\1tion,alldsale, the person purc4asillg succeeds to all the rights that the creditor would have acquired iihe had purchased. The third ground is that wpatever rights the defendant .had to SJlt.i asid'e theoonteyaticetoplaintifffromher fathe\'t it has lost by a lapse of titt,l.e,;anq ;ltllatnQ to it in an independent SUlt. But,the, defendant, is not asking any affirmative relief. It has an equitable title and possession,atid may rest safely on thl;ttJQr. all time. . If-,l, land by full legal title, make a C011- ' tract to sell at' a price to 'paid thereafter, and the· purchaser enters into possession, and pays the price, although I execute no deed, and:; the titletemains, .in· me,still. thepurchasar C8,n always interpose his' full equitable title as a perfect defense to any action I may institute. It is not necessary that he should in the first instance have taken action to place the legal title in himself. I think the demurrer must over.J;u!ed.':
(Circuit Court. N., :D·. Iowa. March ,18,1889.)
BANKS .AND BANKING - NATIOiNALBANKS SHAREHOLDER-PLEADING. '.
cover an assessment ordered by the comptroller, atl allegation in tbe petitiuh. that on, a dar, named "the comptroller of tbe currency, in order to pay liabilities of ' the bank, "made lin assessment uponaJl tbe said sbares of the capital stock of said" bank of lOOper cent. upon its par value, "and oraered \' . the stockholders to pay the same on or before" a day named, is il1.l.fltcient to show ('hat the requisite action WitS, had by the comptroller, not only, determining upon the necessity of '6D aesessment. but aleo as to the enfQrcement thereof:by suit against the delinquent stockholders. " . ". . '..
SAME. . , )
.Am.'loN ·...GAINST " In an action by the receiver of's national bank against a sha.rehOlde'r td.ie·
INSQLVENCY , .
An allegation following. "that by virtue of the and of in sucbcase made and provided, the defendant became and is to'Y0W' petitioner in the sum of, "etc.·' sufficiently shows that,defendant had becd£e indebted in the sum named, and also that such indebtedness still continued when the petition was filed. and ill AtlI1;vlll"nt to an allegation otnon-pay' ment. .
At Law. On demurrer to amended petition. w'William Graham, for plaintiff. . Hendtrr80n, Hurd, Daniels « Kiesel, for defendaI}t.
SRIRAS, J.. The plaintiff is1the receiver of the Commercial National Bank of Dubuque, and in that capacity brings to recover an assessment of 100 per cent. upon the shares of stock of which iUs averred is the owner., The petition avers th,e o;rganization of the the bank under the laws of the United States, its insolvency, the appoilltment of plaintiff as receiver by the comptroller of the om-rency, and the fact that the assets are insufficient to pay the indebtedness. Then follows the ment that "on the 25th day ofJuly, A. D. 1888, the comptroller of the cunrency, in order to pay the liabilities of said banking association ,'made an upon all the said shares of the capital stock of said Commercial National Bank of one hundred per cent. upon the par value of said stock, and ordered the stockholders, to pay the same on or before the 25th day of August, A. D·. 1888, of all of which said defendant had notice; that by virtue of the premises, and of the statutes in such case made and vided, the defendant became and is indebted to your petitioner in the SUth of five thousand five hundred dollars, with interest thereQn from the 25th day of August, A. D. 1888; that this action is brought under the authority and by the directionof the said comptroller of the currency of the United States," To this petition a demurrer is interposed oh the g!ounds that it is not avel'red that the amount l,tSsessed ant has not been paid, and thatit does not appear that, prior to the mencement of the action, the co;mptroller had decitied that an assessment upon the capitalstOck was necessary, nOr that such.assessmeIl!t, if made, shquld be enforced by suit against the stockhq1delis.