(Circuit Court, S. D. Tennessee, E. D. January 8, 1891.)
EQUITY-PRAOTICE-JURISDIOTlON-A UXILIARY BILL.
After there has been a final dElcree and confirmation ot sale in a Buit tor the partition and sale of land, an auxiliary bill seeking to set aside as fraudulent a contract made by the parties after the final decree, and attacking the proceedings in that Buit on the of want of proper service and other irregularities, cannot be maintained. Since there is a complete remedy at law.
In Equity. Nash H. Burt, A. S. Colyar, arid Warder & Evans, for complainants. Olark& Brown, for defendants.
KEY, J. The bill in this case alleges that on the 29th day of January, 1883, defendant Bradford, as an heir of P. B. West, filed a bill in this court for the sale for partition of certain wild mountain lands. This bill purported to make the other heirs of said West parties thereto. The present'bil1 alleges that many of the heirs were not made parties to the original suit, and that others were made parties so imperfectly that no decree made in the cause is binding upon them; that 4th October, 1883,a decree was entered in the original cause, which recites that the cause was heard upon complainant's bill, the answers thereto, the judgment pro confesso heretofore taken against a portion of the defendants, and the proof in the cause; and, it appearing to the court that all the parties are 8ui juris, and represented in court by counsel, it is, by consent of counsel for all parties, given in open court, decreed that E. M. Dodson and W. D. Spears be appointed to sell the limds. This order of sale was revived May 9, 1884, and October 7, 1884. On 9th of May, 1885, these commissioners reported that they had sold the lands to complainant Bradford for $3,500, but that he had failed to cornply with the terms of sale. At the same term of the court the commissioners were relieved and discharged, and the clerk of the court, as special commissioner, was ordered to sell the lands. June 29, 1885,the clerk sold the land to one Foster for $2,650. The report of this sale was confirmed, alid the tiUedivested out of his heirs and vested in thepul'chaser, Foster; and it was ascertained upon report that West's heirs were indebted to Foster $1,953.73, and to connsel in the cause $550, while the other costs were more than $150. The payment of these debts and fees and costs absorbed the entire fund resulting from the sale, and nothing was left for distribution.. Foster made an arrangement by which the fees and costs were paid, and, as the indebtedness was due him, thecourt, 16th October, 1886, canceled his notes for the purchase money. This ended the action and jurisdiction of the court over the original cause. The present bill alleges that April 4, 18S7, said Bradford and his sisters entered into a written contract with A. L. Spears, in which Spears agreed to furnish the money to pay Foster the money paid by him in his purchase, and he and Bradford and his sisters were to become,
YEATMA.N V. HBA1)i'OlW,.··
owners of the land. This transaction is attacked 'as fra.udulent, and h chief object of the present bill is to set it aside. lfthe present bill can be maintained at all it must be upon the ground that it is dependent upon or ancillary to the original bill filed for partition. It cannot he sustained otherwise because of the want of the proper citizenship of the parties. If it be dependent upon the original bill, the citizenship of the parties does not affect it. Hthe original suit was ended, and had passed from the court, and afterwards transactions occurred in regard to the subject-matter of the suit with which the court had nothing to do, and over which it had no power or control, such transactions could not be the court bya dependent bill, unless these latter tra,ns:actions were a part of the links of a chain of fraud which had its begin" ning in the original suit. The averments of the bill make no such Case as this, nor do they attempt so to do. If there be fraud, and it relates solely to the transactions which took place after l the end of the original suit, an independent bill should be resorted to for their impeachment. It could have nothing to do with the decrees of the court which preceded them, and which had innoway entered into the matters complained of. AnexlIinination of the proof in the record fails to bring to light anything in. the original suit or in its history or progress to fix fraudulent conduct upon any of the parties or attorneys. The proceedings under the original bill are very imperfect and, irregular, most reprehensibly so. There are several of the heirs of Patterson B. West who are not made parties. There was, in other respects, a want of such orderly and systematic proceeding as is required in the conduct of litigation. Indeed, the gravamen of the bill seems to be that there was such a want of parties, process, and other steps as made the decrees in the case void, and yet it seeks toimpeach contracts made after the decrees as fraudulent,as if the gecrees had legitimate support. It is clear that if there be errors in tbe decrees, remedy was by appeal 'or by bill of review, if the term or terms had closed at which decrees were rendered. Ifa dependent or auxiliary bill were permitted to remedy errors or alleged errors in decrees and judgments there would scarcely ever be an end of cases. Now. if, as this pill alleges, the liecrees were void fOJ: the want of proper parties or the necessary steps, they bind noone, and the persQIls in interest have a simple. complete, and adequate remedy at law. The case of Lewis v. Cocks, 23 Wall. 466-471. ill of this case. A judgment had been obtained against Cocks, and two of his houses and lots sold under execution to satisfy it. Service had been made, not on Cocks, but upon his agent. The purchaser at the execution sale mortgaged the property, and it was sold under the mortgage and purchased by Lewis, and Cocks filed his bill in equity to have his property reconveyed to him upon the grounds (1) that the court had no authority to render the judgment, (2) that there was no legal service upon Cocks, (3) that there had been fraud upon the part of the purchaser at execution sale. There was no fraud proven, and the court was held to have been competent to render the judgment, and the case turned upon the want ')f service, and the court !'nVR:
FEDERAL &1llPOa'1'U, vol. 44.
alleged only the nullity of the judgment premsold. by reason of the non·service of the original process In the suit. wherefore. the defendant had no day in court. and jUdgnlent was rendered against him by default, and upon those grounds had asked a court of equity to pronounce the sale void, and to take tohe possession of the property from Izard· and give it to the complainant, could snch a bill be sustained? Such iathecase before us. There is nothing further left of it, and there is nothing eljJ8 before us. Viewed in this light, it seems to be an action of ejectment in the form of a bill in chancery. According to the bill, excluding wbat relates to the alleged fraud. there is a plain and adequate remedy at law. and the case is peculiarly one of the character where for that reason a court of equity will not interpose. This principle in English eqliity jurisprudence is as old as the earliest period in its recorded history. Spence, Eq. Jur. 408, note b'jld. 420, note a. The sixteenth section of the judiciary act of 1789, (ISt.:a$.Lllrge, 82,) enacting 'th8tsuits in equityshaU not be sustained in eitherof the courts. of the United States in any case where plain, adequate, an<;l may be .had at law, ' is merelydeeIaratory, and m-etde no change. ill the.l?re-existing law. To bar equitable relief the legal remedy must beeqnally effectual with the equitable remedy as to all,the rights of the complainant. Where the remedy at law is not · as practical and efficient to the ends of justice and Its prompt administration' the aid of eqUity may be invokodi but if. on the other hand. 'it is plain, adequate, and complete, , it puriJued. Boyce v. Grundy,S Pet. 215. In the present case theobnot made by demurrer. plea, or answer, nor was it suggested by couns.et; nevertlJeless, if it clearly exists, it is the d nty of the court sua sponte to recognize it and give it effect. Htpp v. Babin. 19 How. 278; Baker v. Btddle; Bald. 416; It il'l the universal rule of courts of equity to dismiss the billi'· it be grounded upon a mere legal title. In such case the adverse party hastbeconstitutional right to trial by jury. Htpp v. Babin, 19 How. 278. .. ....... In the present case the bill seeks to enforce '/I merely legal title. ' An action of ejectment is an adpquate remedy. The question touching the service of process can be better tried /It law than in equity. If it be dpsired to have anr l'ullttgs of tile court below brought to this court for review they can be better presented by bills of exception and a writ of error than by depositions and other testimony andappelll in equity." This long quotation is justified by the appropriateness of the decision to tbecasein hand. The bill will be dismissed; with costs, and withottt prejudioe. The following decisions are referred to in regard to the principles governing dependent or auxiliary bill: Dunn v. Clarke, 8 Pet. IjDurilap v. Stet8011, 4 Mason, 349; Freeman v. Howe, 24fiow. 450j U.
S. v.Throckmo1'ton, 98 U. S. 61-71; Krippendorj v. Hyde, 110 U. S. 279, 4 Sup. Ct. Rep. 27.
L.t.ltE sUPBBIoamoN 00.". BIWWN,' BOJlNELL "' CO.
SUPERIOR IRON Co.
!I. BROWN, BONNELL
& CO. et ala
(Circuit ·Court, N. D. Ohio, E. D.6eptembtlr 5,1800.)
AllATEMENT OJ!' ACTION-DISSOLUTION OJ!' CORPORATION-REVIVOR.
Under Re\'. St, Ohio, 55 5679.5680, which provide that no pending action against a corporation shall abate by its and that execution on a judgment obo tallied i.n such action may issue against the trustees of the dissolved corporation in its corporate name, a suit in equity in a federal court, wherein the corporation has been declared insolvent, and a, receiver appointed to administer its property as a trust fund for the benefit of creditors, need not be revived as against a receiverappointed by a state court, which has dissolved the corporation during the pendency of the proceedings in tb.e federal court. On general principles of equity jurisprudence, a federal circuit court, which has obtained possession of the property of an insolvent corporation in proceedings instituted against it by its creditors, and whicb. has been directed by the United States supreme court to make a distribution of such property among the creditors in a specified manner, does not lose its jurisdiction by the dissolution of the corporation and the appointment of a receiver by a state court i nor do such proceedings in the state court necessitate a revival of the suit in the Iederal court.
JUDICIAL SALEs-ApPRAISERS-DISINTERESTIm FREEHOLDERS.
Rev. St. Ohio, 5 5389, which requires. three "disinterested freeholders" to appraise lands before a judicial sale thereof, does not disqualify a distant relative of one of the creditors of a corporation, whose claim represents onlyI' smail portion of its aggregate indebtedness, from acting as an appraiser on a judicial sale of its prop" erty for tb.e benefit of all its creditors. A judicial sale of the property of a corporation is not rendered invalid by the reoeiver's announcement at such sale that the purchaser would also b.ave the right, at his election, to take certain land, not covered by the order of sale, and acquired by the receiver during bis administration of the, corporate property. The mere fact that the receiver, on taking possession, inventoried the property at a sum considerably greater than that fixed by the appraisers on a judicial sale thereof eight years aftel'wards, is not a ground for lI6ttillg aside the sale for quaoy of price. .
SDIE-PURCHASER'S OPTION TO TAKE ADDITIONAL PROPERTY.
II. SAME-INADEQUACY OJ!' PRICE.
In EqUity. Henry Orawford, for exceptions. C. C. Baldwin' and Hine &: Cw:rk, for creditors and purchasers. Frank Wing, for receiver.
RICKS, J. At the October term, 1889, of the supreme court of the United States, (10 Sup. Ct. Rep. 604,) a decree was entered affirming the decree of this court rendered in this case at the February term, 1886; and on the 26th day of May, 1890, a mandate of said court was received directing this court to enforce it'! decree. In pursuance to said direct,ion, an order of sale was issued out of the clerk's office on the 3d day of June, 1890, directing the special master commissioner therein named to appraise: advertise, and sell the property described in the decree and order of sale as upon a judgment at law. On tlie 23d day of July, 1890, the master commissioner returned the order of sale, reporting that on the 22d day of July he had sold the said property to William McCreery, Henry '1'od, Charles C. Baldwin, and Cecil D. Hine, as trustees for the sum of$700,000, said sum being more than two-thirds of the appraised value thereof. On the 22d day of August exceptions to the report of