"Theetl'ect o1'this section in the act of 1872 is simply this: If the court has or can acquire jurisdiction. over the defendant personally, this section gives'to the plaintiff the right to the auxiliary remedy by attachment, but it does not afford a means of acquiring jurisdiction." Ohittenden v. Darden, 2 Woods, 437. '
PICKETT t.l. FILER & STOWELL 00.
PICKETT t1. FILER
(OltrCMit COUrt, N. D. Flortda,
March 12, 1889.)
FBDllRAL CoURTS-RJ;:PLEVIli OJ' PROPERTY HllLD BY SHEBIJ'lI'.
. Property in the hands of the sheriff under execution from a state court is in the custody of the law, and cannot betaken by the marshal on proce&sin a replevinsutt in the United States court. III such case the proper. remedy is for the sheriff to set up these facts by petition in the nature of interpleader in the replevin Buit, and not by bill in equity for in· junction.
In Equity. Bill for injunction. The Filer & Stowell Company brought an action of replevin on the common-law side of this court against Morgan et al., to recover certain mill machinery claimed by them to be their property, and under the process in the case the marshal seized. and took possession of the property. The bill alleges that, at the time of the seizure by the marshal, the complainant, as sheriff of the county, had the property in his custody under and by virtue of a writ of execution against said Morgan et al. issued from the state court. It claims that the seizure by the Inarshal was wrongful; that complainant has no adequate remedyat law; ll,nd prays that the replevin suit be enjoined, and the property seized be restored to complainant's custody. Mallory &- Maxwell, for complainant. Blount &- Blount. for defendant. TOULMIN, J., (orally.) I think it would be error and improper for this court to permit a recovery of the property sued for in the replevin suit by the plaintiffs, (even ifthe rightful owners,) if the property wasthereby taken from the possession of the sheriff, who held it by virtue of an execution issued upon a judgment of the state court. The possession of the property by the sheriff by virtue of a levy under an execution issued by the state court is in itself a complete defense to the action ofreplevin, without regard to the rightful ownership. Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355. According to the allegations of the bill, the property was in the custody of the law, and within the exclusive jurisdiction of the state court from which the process issued, for the purposes of the writ, and the possession of the sheriff should not be disturbed by process from this court. But how does this court take cognizance of these facts,' and administer the appropriate remedy in the premises? Not by an original bill filed by the sheriff on the equity side of the court to restrain the suit in replevin of the Filer & Stowell Company against Morgan et al., but by a petition, or summary motion, or, as I think more appropriately, by a in the nature of an interpleader. I cannot c.onsider this bill (filed on the equity side of the court by the sheriff against the Filer & Stowell Company) as an original bill in equity, and
Reported by Peter J. Hamilton, Esq., of the Mobile bar·.
grant an injunction on it as is prayed for, for as such it could not, in my opinion, be maintained. The bill alleges that, the complainant is wholly without remedy save in a court of equity, and it is on this ground that the injunction is asked for. He has other and adequate remedies, as I have suggested. ,Theinjunction prayed for must therefore be denied. But if the bill is presented to the court and asked to be made ancillary to the action of replevin, to be regarded as merely a petition or in the nature of an interpleader in that cause, it will be so ordered in aceordancewith the principles laid down in the case of Krippen.dorJ v. Hyde, . 110 U.S.276 t 4' Sup. Ct. Rep. 27.
(mrCu«t Oowrt, E. D. N(fWYor'k. October 99,1889.)
RBCEI"BIl-rA:rPOINTlIBN'l' AND. DISOlIARGE.
Pendingthl:l 1'lnal determination ofa suit concerning real property, a receiver will not be continued in posseSsibil althe where the filing of a notice of pendens a,nd \lOJ;l,tinua.nce of ,an existing inJunctIon will effectually secure complainant's rights as to the corpus.' As to the rents, those already collected should remain in the bands of the receiver until the final determination of the action, and future rents be secured by a bond. , .
. ' . .'
BenjaminG Hitchings, fOl"coIIlplainant. Edward K. 'Jooes, for defendants:"
Motion to suspend receivership.
J.Upon the fOrtl)erargument, (38 Fed. ,Rep. 380,) as to contained a the doctrine' Or lis pendens, the bdef separate point, in which it was contended, that if tpe state statute applied the complainant should file his notice under it. This point was overlooked by the.court, and, a reargllmel).t upon defend/tnts' application is therefore proper. Upon the entry; of the decree the receiver was contin-ued as to the leasehold it was assumed that in no other way could the status quo of the p1'Qperty, the conveyancI'/ of which to the defendants was, attacked by the cOlIlplainant, be successfully maintained,. The point for consideration now is whether the rights of complainant can be secured, by some other lIl!lasure, less harsh th.an the continuance of the receivership. He has aright to insist that the corpus of the property shall not be transferred until:rtbe final terminatjpn of the suit, and that the accumulated rents and profits j and those yet to be earned by it, :shall not be dissipated. He ,no right, however, to insist on the continuance of the receivership as a lUeans of coercing the defendants into a ,consent tp waive oral argument in the supreme especially where, on an important branch of the case, they are appellant."!. In the memorandum filed on the former motion it was substantially held that the
as a. rule of property, and thatli8 pendens in a fed;. eral court was not available as notice to innocent purchasers, unless notice thereof is filed,as the statute requires. By filing such notice, therefore, the complainant can effectually prevent the transfer of the. property. Should it turn out, however, that the state statute does not apply, then, under the decisions of the supreme court which were considered on the prior motion, the old harsh doctrine of .li8 pendens will operate to effect the same result. The continuance of the injunction on the defendants, and the filing of a notice of li8 penden8, will therefore secure. complainant's rights as to the corpus. The rents, and so forth, already accum\llateQ. may be secured by their remaining in the hands of the receiver, ,vho' should not be required to account till the final determination of the action. Future rents may undoubtedly be secured fully by a bond with sureties other than the defendants, and with liberty to move to substitute new sureties in case of future insolvency. This is all the complainant is entitled to demand. Defendants may proffer an order carryingout.these views, and serve it on the other side. with notice of settlement as to fprm and as to amount of bond for future rents, etc., with an order to show cause why, upon filing such bond, the receivership should not be suspended.
BEADLE '11. BEADLE.
(Circuit Oourt, D. Nebra8ka. May, 1881.)1
A will prOVided that the executors should sell testator's real estate and pay certain legacies, and devised the rest of his estate. real and personal, to his brothers. Held that, tbe legacies being paid in full, the title to the remaining real estate was vested in the devisees, and not in the executors.
W.here an assignment of an interest in an estate il'I made by one devisee to an· other for the put·pose of defrauding creditors, itls void, and neither party to it can Obtain any advantage therefrom.
Where one of two brothers owning an interest in land conveys the same to the other by qUitclaim deed, for the purpose of convenience in making title, etc., it creates a trust in the grantee in favor of the grantor, and entitles the latter to an accounting.
In Equity. Bill by David Beadle against Mishael Beadle to set aside a quitclaim deed given by complainant to defendant, and to establish a half interest in the land .conveyed by it, and for an accounting. Webster &: Gaylord, far complainant. Esterbrook &: Hall, for respondent.
MCCRARY, J. ·1. We are to consider in the first place the question whether the complainant, David E. Beadle, derived title to the undiI
Publication delayed by failure to receive copy.
, vided balf of tbe real estate in question under tbewill of Jobn L. Beadle. The particular provisions of that instrument to be construed are the third and fourth clauses. The third clause provides" that after the pay,Jnent of all debts, as above provided for, all the rest and residue of my property resting in real estate, [describing it,] together with all other, the 1and and real estate or interest therein, that 1 may have or hold in said county of Sarpy, in the territory of Nebraska, or elsewhere in that or any other territory, state, or county on the face of the earth; that my said real estate and chattels real be sold by my said executors for the best prices that can be procured thArefor, either at public or private sale, (or by the survivor of my executors,) in their discretion, at any time within the space of ten (10) years after my decease, at such times as they shall deem best, and out of the avails of such sales, and the' proceeds thereof, or any part thereof, I give, devise, and bequeath," etc., (naming various bequests to relatives, amounting in the aggregate to $950.) And the fourth clause is as follows: .. And the rest and residue of my property and estate, real and personal, ot whatsoever nature or kind, not hereinbefore disposed of and already devised and bequeathed, (except the right and in a certain patent and invention herl'inafter named,) 1 give, devise. and bequeath to my brothers. Mishael Beadle and David E. Beadle, to be divided equally between them. sbare and share alike; to bave and to hold unto them, the said Mishael Beadle and David E. Beadle, and to their beirs and assiKl1s, forever," Respondent insists that this will vested the title in the executors, and made it their duty to sell the land and convert the proceeds into personalty, and that therefore the willitself was a conversion, so that the land must be treated as personalty. This upon the ground that, where a testator distinctly directs in his wilt that land shall be sold and converted into money, equity considers it as done. 2 Story, Eq. Jur.§§ 791, 793, 1212,1214; Craig v. Leslie, 3 Wheat. 563. On the other hand, it is insisted by the complainant that these clauses of the will did not vest title in the executors; that they only authorized them to sell for the purpose of paying the several legacies named; and that by the terms of the will no equitable conversion was provided for or intended. We if possible, construe the two provisions of the will above quoted so that both may stand; and there is therefore much force in the suggestion that it could not have been the intention of the testator by the third clause to require the sale by his executors of all his real estate, since by the fourth he bequeaths "the rest and residue" of his property andestate, both'real and persqnal, to his brothers, Mishael Beadle and David E. Beadle, the complainant and respondent herein. The fourth clause bears upon its face strong proof that the testator did not anticipate that all his realty would necessarily be sold 'by the executors under the previous clause. The fourth clause not only expressly devises the residue of the realty,-thus assuming that there might be a residue of realty,-but it bequeaths the sm:ne, "to have and to hold, unto them, the said Mishael Beadle and David E. Beadle, and to their heirs and assigns, forever," which is the phraseology usually employed in convey.
BEADLE .,. BEADLE.
ances of real estate. In the light of these considerations, let us look at the language of the third. clause in the will. Does it convey the title to the executors, or simply vest in them a naked power of sale? If the latter, then the title, which could not rest in abeyance, must have passed to the devisees subject to the right of the executors to sell.. Upon this subject Judge Redfield, in his work on Wills, (volume 3, p. 136,) says: "It is often made a question whether the executor takes a fee-simple under the will. upon which his power to dispose of the same is ingrafted, or a mere nake(} power to dispose of the title to the estate in a particular mode, in order to effect the purposes of the will." And in a note, on page 137, the same author lays down the rnle for the question in these w01'ds: "It is said the devise of the land to the executors to sell passes the title. but a devise that executors may sell, or shaH sell, lands, or that they may Ol' shaH be sold by the execntor, gives "them only a naked power of sale." Citing Sugd. Powers, (8th Ed.) 112; Doe v. Shotter. 8 Adol. & E. 905. Judged by this rule, it is clear that the will now under consideration did not vest the title in the executors. There are no words of conveyance or devise to them. The language is "that my said real estate and chattels real be sold by my executors," etc. He does not say: "1 give and bequeath to my executors," etc.; nor does he use any equiva:' lent language. There are certainly no words expressly passing the title to execlltors, and since the purpose of the testator is secured as well by treating the instrument as conferring only a power of sale, and since by this construction all the provisions of the will may be harmonized, 1 adopt it. Another consideration has great weight with me in determining the true construction of this will. It is conceded that all' the legacies provided for in the will, to be paid out of the proceeds of the sale of the land, have been paid in full. The legatees are therefore satisfied, and there is no one to claim the property as personalty. The complainant and respondent both claim realty under the will.· They 'have both elected to claim the realty, as their pleadings in this case abundantly show. The complainant sues as devisee, and claims title under the will. The respondent claims title in himself by virtue of the will and a conveyance from complainant. He sets out the will as a part of his answer, and as the source of his title, and prays that his title may be quieted. The legacies having been paid, it is clear that the whole beneficial interest under the will, whether that interest be in the land or in the proceeds of a sale thereof, is in the same parties; that is to say, in complainant and respondent jointly. or respondent solely,-in both. if complainant succeeds in this controversy; in the respondent, if he is I'luccessful. Now, the law is well settled that where the same person is to receive the bequest, w:Jether it remain in thEf form of realty or be sold and converted into money, that person may elect to take either. This for the reason that no other person can by possibility have any interest in the question. It is only in cases where if the property be treated as realty it will go to one party, and if regarded as personalty to another, the qw-$!ltions arise-
FEDEa:A,J.., m;POItTERjVol.· 40.
;the intervention ofcourt$,'anti-the applicatien _of.the .principles contet1ded: for by the respondent. Courts of equity :cannot be called upon ·to/hear and determine controversies concerning. purely abstract questioUSlil.\:nd .which do not invol.ve substantial rights. If the same result follows Ii decision either way l' there is nothing with whloo-a court ought to be troubled. A .court ofequ!t$- iWill not compel a trustee to execute a trustag.ainst the wishes of the :eesttfi que trust. If the latter is entitled to the land, or its proceeds if it be sold ,the court will allow him to· take his choice;'·' This rule is settled by the case of Craig v. LeSlie, Burka, and by a uniform current of authority in this country and in England. My conclusion upon :this branch of the case is that by the will, the title was vested in the devisees, and not, in the executors; and, Iprodeed to consider the other questions presented in the case. 2· Weare next· to consider the force· and effect of the following instru.. ment executed by complainant to 'respondent: "To all whom that I, D. E. Beadle, of the town of Galen, Wayne c(')unty, New York:sfate, for and in consideration of certain notes signed by Mishael Beadle as. security for me, do hereby, and by these present!!, assign and, convey to the sailiMishael Beadle aU my right, title, and interest in and to certain IlJ,nds in tbe territory of Nebraska, acqoired by me through the will of John L. Beadl!'l.deceased. Dated this first day of April. 1865. [Signed] , ". . DAVID E. BEADLE." The bill in this case is not filed for the purpose of setting aside the assignment; it is aimed at the quitolaim deed subsequently It is, however, insisted on behalf of respondent that this assignment and the said quitclaim deed are parts of the same transaction; that both and for the Bame purpose, viz., were executed for the same to vest in respondent the title to the land absolutely and unconditionally. It is further insisted that if.it be ·found that the purpose of this assignment was to defraud the creditors of complainant, then he cannot be beard to attack it, and that the same must be held with respect to the quitclaim -deed afterwards made in consummation of said assignment. Whatever may have been the purpose of this instrument, it is very clear that it was nQt intended by the parties as a conveyance of all the interest of complainant in the real estate, and that it was not, after its execution, treated by them 'as having any such purpose or effect. After its execution the respondent continued in various ways to recognize the interest of complainant in. the land, and to consult him from time to time with respect to sales thereof, and its 'management generally. In numerous letters addressed to complainant lie speaks of the land as "ours," as "our property," and .'I,our land," etc.; and in several written long after the assignment he.. speaks of the respondent's "interest" in the land, and of his "part"thereof, and in one ,he speaks of an expected settlement and division between them. Without quoting in this connection from these letters, it is sufficient to say that they cannot be harmonized with' the theory that the assignment was intended or understood as divesting complainant of all interest in the land. To construe that instrument as having been given as a security in the nature of a mortgage, to indemnify
reepondent against. loss on account of his indorsement of the notes of complainant, do no great violence to its terms; but the master has found, and I think I correctly, under the evidence, that the assignment executed by complainant for the purpose of covering up his Nebraska interests as against the claims of his creditors. This makes it necessary for U$, to consider the question whether complainant is estopped to recover in this case upon the ground that he is relief as against his own fraudulent act. Whe rule is that no affirmative relief will ever be granted upl1na.fraudulent contract to either'ofthe parties thereto. Ifit be true that is asking this court to set aside this assignment,orthat :the assignment is, so clearly identified with the quitclaim deed that they must be regarded as parts of the same transaction, then, in either case, 1 would have no hesitation ;in saying that he is not entitled to rellef. The same result, however, would follow as to respondent. He was a party to both instruments, and was in pari delicto. If they were too,was a Pflrty to the fraud, ,and can claim nothing un<.ler either of them. The court would in that Case refuse relief to either party, and leave them in precisely the position in which they have placed theIrtsel;,res; Telegraph 00. v. Railway Co., 1 McCrary, 418,3 Fed. Rep. i,and(iases cited. " , If, thercfore, the assignment and the deed are to be regarded as parts of the samefirliudillent scheme to defraud the creditors of complainant, it would inevitably follow that both would be treated as absolutely nun and void, and the parties w'Ould be left, as between themselves, without any: right to a decree to enforce or set aside either the one or the other. This llesuJt would be much more injurious to the interests of respond,ent than to those of the complainant, since the latter is in possession; and,jf the two instruments are ignored, he can, as against respondent, hold the undivided half of the land-all that he olaims-underthe provision ofthe will of J'Ohn L. Beadle. But I am ofthe opinion that the evidenc.e does not sustain the position of respondent, that mept a.nd the. quitclaim deed are parts of one and the same transactiou,bothe;xecuted for the eame consideration and for the same purpose. Upon.this,question j as UpOD nearly all the disputed questions of fact in this case; the ,testimony of the.complairiant and respondent is in reet conflict. They are equally interested, and, so far as appears, equally intelligent andcredihle. 1 conclude, therefore, that the matters of fact in controversy,between theml.and concerning which their testimony is iIi conflict; must be determined by a. consideration of the corroborating testimony, and particularly by the acts, declarations, and writings of the parties contemporaneous with the transactions in question. What was ,said and done by the parties in connection with these transactions at the time they were transpiring, and before any ill will had arisen, may be relied upon Me:x.hibiting a reliable indication as to their aims and purposes. For what purpose was the quitclaim deed executed? Complainant ewearsthat it was for the purpose of simplifying the title, and making it DlQJ-eJlatisia.etory to purchasers o(lots, objected to the ,title made