WITTERS fl. SOWLES.
where it appeared that the peculiar phraseology was the result of an amendment introduced without due reference to language in the original bill." If the history of this act, in the respects named, be the proper subject for consideration, it seems to us conclusive upon the questions now presented, and clearly negatives the idea that any investigation or inquiry such as we are requested to make here as to the existence of grounds of removal was contemplated by congress. Irrespective of this, however, it appears that, when congress came to deal with the cases which had been removed to this court by plaintiff before the passage of the act, it provided that"The circuit court shall, on application of either party, ex.amine into the truth of sald affidavit, and the grounds thereof; and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto." 24 St. U. 8.553. It appears from this that when an examination into the truth of the affidavit, and the ground thereof, was contemplated, it was so stated in express terms; and the statement of it there, we think, gives emphaRis to its omission in the preceding part of section 2, in making provision for removal by the defendant. So that, giving no weight whatever to the history of the act, and construing it by what appears upon its face, the clear statement of the duty of the court in one case, and its entire omission iIi. the other, is very significant, and leads to the conclusion, that in the latter case, no such duty was intended to be imposed. Motion denied. PABDEIl:, J., concurs.
WI'I'TERS 'V. SOWLES
(Oircwf,t Oourt, D. Vermont.
QUIETING TITLE-REMEDY AT LAW.
June 28, 1890.)
A purchaser of land at execution sale cannot bring suit to quiet title against anothel' purchaser of the same land under a subsequent execution, in order to determine which has the better title, since the respective rights of the parties may be determined at law.
In Equity. On demurrer to bill. O. W. Witters, pro se. Edward A. Sowles, for defendant. Before LACOMBE and WHEELER, JJ.
PER CURIAM.. The compiainant heretofore brought an action on the law side of this court against the defendant Margaret B. Sowles, and therein attached pertain real estate up0n mesne process, November 2, 4, and 5, 1887. Verdict and judgment followed, May}, and ex-
ist;lued}uly12, L'This execution was irreguhtr,being made'returnable in 60 days, instead of "to the next l stated term of the Abandoning hie first execution, plaintiffiilsuedianotheron July 29\ 1889, returnable to the Octobertel'm, 1889.0Il,that day and the 29th and: 30th,) the execution was levied'on the lands in ques(lion, situatedinthe'towns of St. Albans and Swanton. On July 26th', the A. Sowles,aeting as attorney for the defendant SusanR'Sowles. his daughter, brought suit in the state court against the his wife, and the mother of said Susan defendaritMargaret B. Sowles, and in such action attached upon mesne process the interest 'of Margaret B. Sowles in the lands ,iri question. Judgment therein has sincE! been entered, execution issued,and levY' made; and sale under The <:omplainant riow brillgs a -bill in equity such E',xecution (1) for a decree that his proceedings are valid, and his title paramount to ofal}y of tpe defendants; (2) to annul and set aside the Susan B. Sq'Yles attachment and levy; (3) to ,enjoin defendants from proceeding with',sa.le thereunder; and, (4) if any of complainant's proceedings should be fQund irregular and defective, then for a decree that he may c,o1'1'ect the Same. " ,'. , , ,The' theqry of to be that the Susan, B. S<?wles proceedings (which,cOD;lplailliult asserts to be fraudulent) constitute a cloud upon at the execution sale has the title which be<or the under his own attachment and subsequent proceedings. The laws of Vermont regulating final process provide that II personal property attached on mesne process shall be held to respond to the judgment rendered on such process thirty days from the time judgment is rendered; and unless the plaintiff, within thirty days from the rendition of final judgment, takes such property in execution, it shall be discharged from such process; and real estateitttMhed on such process shall be held five months after the rendition of final judgment, and no longer." R. L. Vt. § 1542. It is apparent that the real estate in question was taken in execution within the five months, but was 110t sold under the execution until after the five months had It is claimed by the defendants that thereby the complainant lost his lien by attachment. In other words, the question raised is whether it is the levy or the sale which gives such a title to the property that the lien of the original attachment may thereafter be dispensed with. By this bill it is sought to have that question determined in equity, but no sufficient ground for equitable interference is shown. If the defendants' contention is sound; if the statute provides that it is the sale, and not the levy, which must be made within the five manths,-then the complainant has rio t.itle to be clouded. The lien t.hat he acquired by the attachment would in' that case be gone forever, not only as against intervening lienors, but as against all the is unsound, world. If, on the contrary, the defendants' thettthel'eis no cloud upon the orator's title. His original attachment has reserved the property until its place was taken by his levy, and no intervefiing attachment or levy can in any way affect his rights. An attachment obtained by any other creditor. of Margaret B. Sowles, as to
Wl'l'TERS fl. BOWLES.
whom there might he no suggestion of bad faith or collusion, or even of actual knowledge, would have no more effect to impair the complainant's rights in that case than would the attachment which Susan Sowles obtained. Of course, it does not constitute a cloud upon the title to real estate that. those .who may be in its actual possession entertain and express differentview$ of the statutes and authorities under which the holder of such title seeks to establish it than he himself does. The fact is that the only cloud suggested in the bill is one arising from supposed defects in his own proceedings, and is in no sense created by any outstanding rival claim. The case in the supreme court cited by counsel for tbe complainant (Ward v. Chamberlain, 2 Black, 444) sustains a suit such as this only when " a title to real estate, otherwise Clear, is clouded by a claim which cannot be enforced." That is not this case; the clearness orobscurity of eomplainant'stitle is not at all dependenttipon any outstanding claim under Susan B. Sowles' action. It depends solely upon its own inherent strength or weakness, and the complainant should be left to dl'lvelop that strength or weakness in the proper forum by action of ejectment·. Rooney v. Soule, 45 Vt. 303.. An effort is made to sustain the bill under section 1596, Rev. Laws Vt., which provides that the a defective levy, and issue execution (state) supreme court may anew. Witboutentering. upon a discussion of the objections advanced to this proposition, it is suflicient to say that the special relief contl'ltnplated by that section, .when sought to be availed of to secure the fruits of a judgment rendereq in a common-law action, is not to be applied for on the side ofthe court. A further objection to the maintenance of this suit is the fact Oat the six months allowed the judgment debtor in which to redeem the property had not expired when this bill was filed. Till that time expired, her right to redeem the land from the orator's levy could be attached or levied upon, and the attaching or levying creditor would have 15 days after the expiration of her right to redeem within which to make redemption. Laws Vt. 1884, No. 139, § 10. Susan B. Sowles merely attached.andlevied upon this right of her mother to redeem as any creditor or pel'$on claiming to be the creditor might lawfully do. Any creditor attaching subsequently to her might appearand contest her claim. R. L. Vt.. § 1166. The orator, by making such subsequent attachment, could do the same.· He is not now an attaching or levying creditor of that right which Susan B. Sowles has attached or levied upon, and, according to the allegations of his bill, has no interest ioit. The demurrer is sustainl'ld.
(OlrcuU Oourt, S. D. Oalifornia. May 19, 18t10.)
a ,uit to declare. a deed absolute on its face a mortgage, and to redeem thet'efrom, it appeared that' 0., who was complainant's mother-ill-law, was indebted to defendant and to oomplainant; that she executed to defendant,an absolute deed to aU her land, which was not at the time worth more thau the debt, and received from. him all evidences'of debt. This deed comDlainant claimed to have been intended as a mortgage, under an, agreement by which he was to have the right to redeem the land thereby conveyed on his subsequent payment of all the indebtedness. O. , testified that the deEl'd was intended as an absolute conveyance, and letters from hel: to defendant and to complainant tendel1 to show that, this was the ,IJ;lIl" There were letters from complainl!<nt to defendant and to 0., running through "1'eral years, during which he made no claim. that the deed Was a mortgage. His te&timony was contradictory and improbable. Defendant, and other members of his Mm,. testified that the deed was absolute. HelCL, that the deed was an absolute con-
AB80LUTB IN. FORM-EVIDENOB.
Jarrett T. Richards, George Pearce, and Rodgers cl' Munday, for complainant. Stanly, Stoney & Hayes, for defendant.
Ross,J. This is a $uit in equity in which the complainant, by his bill,. seeks to obtain a decree that a 'certain deed, -of, date February 24, 1881, absolute in form, and executed by one Augustias de la Guera de Ordand .complainantl and purporting to conV'eyto the defendant five ,certain parcels of land situ,ated in the county of Santa 'Barbara, and tEl-' ferred 'to; fur' CClnvenience of reference; as the "State-Street Lot," the Tract," the "Ord Garden," the "Montecito Tract," and the ".'fodos Santos Rancho Property," oonsisting of an undivided interest in tlhe TodosSantos rancho, was in' fact a mortgage,and that the defend'llhtbepermitted to redeem all of the said property. In respect to the alleged rights of the· oomp]ainant,no distinction is made in the bill, which i<l sworn to by complainant, between the different parcels of land. the same rights are therein asserted to each. It is,among oQther things, in substance, alleged that, on the 24th of June, 1876, Augustias de la Guera de aid was the owner in fee and in possession of the said five ,parcels of land, and that there was then existing thereon a mortgage executed by her to the defendant, as trustee for the firm of Lazard ]'re:oos, to secure an indebtedneRs from her to that firm, then amounting to $11,000; that on the day' mentioned Mrs. Ord paid $4,984.65 of the said indebtedness, and the Todos Santos rancho was thereupon released from the mortgage; that Mrs. Ord was at the same time indebted to the complainant, who was her son-in-law, in a large amount of money which she was desirous of paying, and he of receiving, but, beinK unable to do so without further incumbering her said property, and being also desirous of aiding and advancing complainant in business, on the 30th day of May, 1877 I she made and delivered to complainant this power of attorney: