wQuldnot lie ,the premises, and a proceeding in ment, equityis pleady necessary to settle the rights of the parties. The motion tOnlD:l.and is overruled.
CONKLIN et ttl. "'. WEHRMAN.
(Circuit Oourt, No D. iowa,
June 14, 1BBIJ.>
EqUitrca1'l restrain actions in' ejectment on the ground thll.tthe plaintiff therein III estopped by laches fr<nn maintaining lIuch actions, and a complaint which seekll to restrain such actions, and to quiet complainant's title, is good against'S: demurrer to the whole blll.
, ,An ,attachment was issued in Iowa in a suit against ,W;;, and levied on realty ,therein"the nqtice being served:J:lerllonally on W. in Judgment was.eiftered by default against W.,and the property ordered 1I01d. In 1862 1lbE! plaintiJf brought an action to set aside a conveyance of the 'laud)by,W.to F., 8S, made in fraud' of his rights, and nOtlce was served on defenda,ntapersonallyin Wisconsin, A decree was entered the land ti:i the execution In the attachment proceedings.. Held, that, while the personal service may not bave 'been sufficient to 8uthorizea personal judg· men s,, t F,., it notified lJ,i,m tha,.t,t"p .roceedings ,were bei,n,g.taken. t,o subj ect the lana,to sale as the property of W., and that he, having ,remained inactive 'for 23 years, and failed to perform any of the duties of an owner.' such as Hst· ing the' property, arid paying tues, was estopped to maintain ejectment for thelll,J!.d. ;, i
'InEquity. Bill to quiet title /!.nd enjoin actions. in On demurrer to Qill" ' E ·. L. Joy, and Warren Wq,lker, for complainants. J. ,BullandOhas. A. Olark, for defendant; SHIRAS, J. The defendant herein, Frederick Wehrman, Qrought several actions ill ejootment on the law side of the court agahlst the several claiming to be the owner of and entitled to the possession of certain realty situatE'din O',Brien county, Iowa. '. Thereupon a bill in equity, asking that the actions at law be the stayed u.ntil the hearing upon the bill, and setting forth various matters ,'Ilpon relief is sought., ,To this bill a dermmer was filed, and, the questions; ,thereby presented, have been very ably argued by :(lpunsel. ]1roll,l :the allegations of the bill it appears that on the 1st day ofrDecember.1859, one Adolph Wehrman, the Jather of defendant, ra,patent frOl11 the United Stf\.tes, covering the land in question, '1iUldon the 17th day of'Decembel', 1859, he executed aconveyauce of :some 2;Q60, Il!;Jresto the defendant, which conveyance was placed upon ,;Qn,.the.lMh day of January, 1861, the ;firm of Greeley,Gale ,& action, in the district court of O'BrienCO\lDty, Iowa, against A.-dolphrWehrman, based upon a judgment obtained in the circuit W)unty, Wis., for the sum 0£$1 j 940.30, and dated May
12, 1860, l\ud which in turn was based upon the notes of said Adolph WehrIQan,executed prior to December, 1859.. The said Adolph Wehrman being a non-resident of Iowa, a writ of attachment was issued in the suit brought in the district couirt of O'Brien county, and was levied upon the realty in question, notice of the pendency of the action being served upon Wehrman personally in Pierce county,. Wis. Upon application of plaintiffs in the attachment suit, the same was removed to Woodbury county, and at the September term, 1861, of the district court of the latter named county a judgment by default was entered against Adolph Wehrman, and the property attached was ordered to be sold in satisfaction of the judgment. At the June term, 1862, of the district court of O'Brien county the plaintiffs in said attachment proceedings filed a petition in equity against the said Adolph Wehrman and Frederick Wehrman, setting forth the prior proceedings, the rendition of the judgment in the attachment case, and averring that the conveyance of the land from Adolph to Frederick was fraudulent and void as against creditors, being made without consideration, and for the purpose of defeating the collection of the debt due said firm of Greeley, Gale & Co., and praying that suchcOnveyance be set aside and annulled, and the realty be decreed to be subject to the lien of the judgmentin the attachment suit. Notice of this proceeding in equity was served personally upon each of the Wehrmanslnthe state of Wisconsin in accordance with the provisions of the Iowa statute, and at said June term, 1862, a decree by default was entered declaring the conveyance to Frederick Wehrman to be void, and that the realty was subject to sale under said execution issued in the attachment case against Adolph Wehrman. In pursuance of.this decree the land was sold upon the execution, and purchased by Carlos S. Greeley. On the 31st day of December, 1864, a sheriff's deed was executed to the purchaser, and duly recorded. It iaalso averred that the land in question was subject to taxation for the years 1858 and 1851).; that Wehrman neglected to pay the taxes; that the lanlls were sold for the rlelin4uenttaxes assessed thereon in Woodbury county, to which O'Brien county was then attached, the sale taking place in O'Brien county on the 22d day of December, 1860; that the same were sold to C. C. Orr, to whom a tax-deed was executed on the 28th day of June, 1866, and recorded July 7, 1866; that on the 6th clay of May, 1871, the said Orr executed to said Carlos S. Greeley a quitclaim deed of said realty; that the title under said Greeley, the several conveyances thereof being set forth in the bill; that complainants have since the purchase of the land for value in 1881, 1882, and 1884, been in the open and Qotorious possession of the realty, putting the same under cultivation, and erecting thereon substantial buildings, and making other valuable improvements; that when. the sale of the realty was had to said Greeley the lands were wholly unimproved, and of little value; that the said Adolph Wehrman, by the. satisfaction of the judgment against him, received the fair value that time; that by the improvements since putupbn the of the S!i.me the, thereof haa been greatly jncreased; that neither Adolph
FEDERAL REPORTER, vol. 88.
nor Frederick Wehrman have ever paid any taxes upon said lands, but that the same from the date of the eiltry thereof in 1859 to the present time have been paid by complainants, or those under whom they claim title; that although said Frederick Wehtman had actual notice of the proceedings affecting said realty and the title thereof, he never sought to set the same aside, nor did he make claim to the land, nor did he perform any of the duties nor assert any of the rights of an owner of such realty, and for 27 years allowed the lallds to remain without asserting any interest therein, and that he is by his own laches equitably estopped from .asserting any informalities or objecti0tls in and to the several proceedings under which complainants claim title, or from asserting a claim to the realty·. In support of the demurrer it is urged tbat upon the face of the bill and the exhibits made part thereof it appears that the writ of attachment issued in the action against Adolph Wehrman was void for want of·a proper seal; that the judgment entered in the case is in form in per8onam, 'and therefore void, because the court had no jurisdiction of the person of defendant, theorlginal notice having been served without the territorial Jurisdiction ofth6court; that if the judgment is held to be in rem it is void because the attachment was void for want of a seal, and therefore the court had not obtained legal jurisdiction over that the decree in the equitable proceedings against Adolph and Frederick Wehrman is of no validity, because the parties were non-residents of Iowa, did not appear in the suit,and the original notice therein was served upon defendant in Wisconsin.; that the Orr tax-title is void because made in O'Brien county by the: officers thereof,. who were without authority to make sale of the property;, that the equitable estoppel relied upon cannot be made the basis for anaffirmlitive decree restraining further proceedings in the law actions; that an equitable estoppel is only available as a defense; that an cannot be predicated on the facts alleged in the 1;lill, ,because when the expenditures for taxes and improvements were Ulade the complainants knew, or could have knClwn from the ,record,the condition of the title and were charged with the knowledge of the adverse claims, of the defendant; that mere silence and inaction on part of defendant would not constitute fraud, actual or constructive, on his part, and that defendant .is not chargeable with laches defeating his right to prooeed by ejectment to obtain possession of the realty. If it be admitted that the proceedings in attachment did not for any reason ripen into a valid legal title, so that the complainants ool'ild not at law show a good ,title to the land, then the question arises whether the facts are such as to:constitute .an estoppel upon Frederick Wehrman in favor of complainants., , AQcording to the averments of the bill he knew in. 1862 t,bat Greeley, .Gale & Co. were seeking to subject the· realty to the payment of their claims, and had brought a bill in equity to have declared v;oid :the conveyance to himself. While service of the notice in such prooeedinginthestate of Wisconsin may not·have conferred jurisdiction Iowa court to render a personal judgment thereon,binding upon' W.ehrnlan, nevertheless it him that proceedings Were iin1act
CONKLIN 'V. WEHRMAN.
being taken forthepurpose of subjecting the land to sale as the property of Adolph Wehrman. With this knowledge he remained wholly silent and inactive from that date until the bringing of the actions in ejectment,-a period of over 25 years. During this period of time he never title to the realty never performed or sought to perform any of the duties of an owner thereof. Under the statutes of Iowa it is made the duty of owners of realty in the state to see that the same is properly assessed, and to pay the taxes thereon. Code Iowa, § 852. According to the averments of the bill Wehrman never paid any of the taxes on the land, nor did he ever see to it that the lands were listed in his name as owner, and properly assessed. Had Wehrman, instead of bringing an action in ejectment, filed a bill in equity to remove the clouds upon and quiet the title of the realty, is it not clear beyond all question that a court of equity would have refused to aid him on the ground of laches? Can a person take a. title to land, place the same on record, and then for 25 years stand by, knowing that othena are asserting rights to the same, and then expect a court of equity to aid him in clearing up the title, and restqre the land to him, when he wholly fails to explain the long delayoJ;l his part? It is not necessary to cite authorities in support of the proposition that under such circumstances a court of. equity would its aid, and, by dismissing the bill, would practically affirm the title of the parties in possession. ltis, however, urged that, while a court of equity might refuse its aid when its jurisdiction was invoked by the one guilty of laches, it cannot grant a decree restraining the aetionsat law at the suit of the parties claiming the benefit of the estoppel. .In effept what is sought to be done is to make available against the legal claim of Fredthe defense based upon his laches and conduct. The bill in equity is filed asa means for defending against the law actions. The equitjesand rights of the parties grow out of the facts in existence when the actions in ejectment were brought,' and not out of the mere form of the proceedings. Counsel for defendant admits, that the bill filed shows ground of jurisdiction in the court of equity. Jurisdiction existing, is not the court justified in entering such a decree as the equities of the case demand? If the facts are such that, if Wehrman was complainant, the court would refuse a decree in his favor on ac<;ount of laches and an estoppel based upon his conduct, may 110t the court grant a decree against him when he is a defendant? Complainants8,eek by the bill filed, not only to make a defense to the actions in ejectment, but also to o1;>tain B decree quieting the title in them. If the actions in should be dismissed by the plaintiff therein, that would render llnnecessary the further prosecution of the bill in equity, so far as it seeks to restrain the prosecution of those actions, but it would still remain as a bill toquiet the title, and, upon the final if it shQuld appear that complainants were entitled to a decree quieting the title; in them; certainly the would have the power to grant it. Such' a decree would bar any'actions in ejectment that might be brought, anq, if the court can by its decre.e bar actions it can restrain the fllrther prosecution, of actions now pending. ,The
how well taken the objections demurrer is'to the entire bill. may beta, specific portions' of the bill the demurrer cannot be sustained ifthe'billas flo whole shows ground for relief. It is therefon! over,
P SUbsequent to defendant's adjudication as a bankrupt. complainant, owninga ·debt him which existed at the date of his adjudication, aBd which had been proved in tl)e bankruptcy proceedings. sued him on the debt in a state, of whICh he, was .aDon-resident. and, without personal service or other'meabs ofgivirig the court jurisdiction, obtained a.personal judgment against him. Afterwards defendan 'petitioned for a discharge in ban kruptcy. ,which complainant opposed, and thereupon defendl1nt petitioned the bank, ruptey court that. complainant's proofs of debt be canceled because he had ob. tained a valid judgment, in which the debt was merged. The court so ruled, , and complainant's proofs .of debt, and dismissed his opposition. in which .rel.rinK on defendant's of the validity ofbis jUdgment.Oomplalnant filed this bi'll, alleging the above facts; also,' tll\at he was deslrolls of bringing an action at law on said judg, menkin Allot.\:!erlltate,fl,nd that by the law of that state defendant's conduct SUbsequent to rendition of the judgment cannot be pleaded. but that allege either tbe facts showing jurisdiction in the court whi'ch, renderedh. or that'the judgment was duly entered; and praying that beu.djudged to be ,forever estopped to make the defense that the judgment was void for want of jurisdiction. Held, that the bill made a proper case for equity jurisdiction; and that defendant's position in the bankruptcy proceedin'gs estop,ped him to deny the validity of complainant's judgment. S·. REMEl>Y AT LAW. rbe,bill that defendant be adjudged .to be estopped to assert that'tlie'judgment was barred by the discharge in bankruptcy. Held that. if defendant .interposed such defense to the action at law. complainant could show in that action the fnGts relied on to constitute.the estoppel, and that therefore would not pass upon the question.
. . DENY VALUlITY OF JUDGMENT.
June 10, 1889.)
In Equity On demurrerto bills. Suits to enjoin defenses at law. ,AnsOn' Mdltby, for complainants. HenryA.· Root"and '1'. D. Kenneson, for defendant·. SHIPMAN, In each of the above bills in equity the defendant has demurred'tothe bill. The bills of complaint in the two suits present .the same questions, and the demurrers are upon the same grounds. It is· therefOre only necessary to state the facts which are alleged in one suit. I The bill of"complaint in the Cornwall Caae alleges. the following facts: (!)n:AliguBt .26,1869, at San Francisco, Cal., thEidefendant, Davis, made hisfive'p1"omissoi'Y notes in ,writing, for value,to the order ofP. B. Cornwalli and delivered the same to him, all of which were time notes., all to $13,783.70, of which only'tbe'sum of $1,407.43 'has ever been.: paid.'Ou, September 11, 1869, defendant filed in the