Bound, which an duced at the argument 11 piece of accompanying affidavit stated had been in <;lirect contact with sulphur water for about five years in other wells, and was still in sound condition. Extra precautions have been prescribed in the contract for the drilling oithe well in qup.stlon, and a double line of casing is to be used to a depth of 25' feet below the bottom of the Pittsburgh vein of coal, the outside of the casing to be painted with a preparation said to prevent any action of sulphur water upon the iron, and the space between the two casings is to be filled up to the Pittsburgh vein with cement as an additional precaution. Under these circumstances I cannot say that there is a well-grounded apprehensi9tl of immediate injury to plaintiff's interests or nroperty which will justify the granting of a preliminary injunction. His rights can be fully protected on final hearing, if they are found t6 reqllire protection. On the other hand, while it does notappear that any immediate injury will result to plaintiff by withholdingthe injunction, it does appear that serious injury and inconvenience would result to the defendant by restraining- its further prosecution of its work. And, finally, the relative rights and duties of the plaintiff, as owner of the coal and mining privileges and the owner of the surface and underlying portion of the land, and the defendant, as his lessee, are exceedingly difficult of definition, and ought not to be hastily determined upon a prelirniaary application, especially as the state courts are at present trying to define those rights as rules of property under the law of the state of Pennsylvania. The motion for a preliminary injunction must be refused; and it is so ordered.
UNITED STATES 11. INGATE.!
(OirOUU OOUrt, S. D · .Azabama. July 28, 1891.)
AcrIOl' BY UNITED STATE8-LA.CBEI!l.
When the United States voluntarily appear in a court of justice, they at the same time submit to the law, and place themselves upon an equality with other litigants; but this does not apply to such defenses as laches and the statute of limitationa.
BIlIIPLlIl CONTUOT CREDITOR.
A simple contract creditor, or creditor at large, is one whose claim is not reduced to judgment, or secured by a lien created either by contract or law. .
A court of equity interferes to aid the enforcement of a remedy at law. only when there is a debt acknowledged or established by judgment, and also an interest in the debtor's property or lien t,hereon created by contraot or law. A judgment in one district has no force in another, except, perhaps, as evidence.
JUDGMENT IN FEDERA.L COURT-EFFEOT.
JUDGMENT A.GAINST DEFAULTING COLLEOTOR,"""LuBILITY 01' SURETIES.
A judgment against a collector of internal revenue for a default does not bind the sureties on his bond. No federal statute creates a lien on the property of a collector of internal revenue or his sureties from the execution of the bond or default thereunder.
&. COLLECTOBI!l 011' INTERNA.L REVENUE-LIEN OJ' BOND.
1Reported by :Peter J. Hamilton, Esq.,
ot the MObile bar.
. " "
0' ' , ..J:i'equiiableright created by state statute maybe enforoed In the federal courts. " 'lIDless itis'soblellded with other matters as to violate the cOllstitutional right of a liefen;44ntln *e; federal courts to have determined by a jury any question cogni. za'ble at common law. 8. ASIDE FRAUDULENT CONVEYANCE. IAsuit'in eqUity under Code Ala. § 3544, by a simple contract creditor to establish a .<Iel:\tse,t fraudulent cqnveyBJ;lCeS, and condemn the property to payment of hIS debt, cannot be maintained in the federal courts, because a defendant there has the right to have any matter of debt, exceeding $20, tried by Bjury. 9. FEDIllR,4.L PBACTICE-LAW ANI) EQUITY. Under the United States statutes, there Ie in the federal courts an entire separation of proceedings at law from those for equitable relief. ' 10. EQUITY JUUlSDICTION-DIllPAllLTlNG PBOCllEDlNGS. While there are statutes providing for summary proceedings against defaulting federal'oJ1icials, the remedies are all by action at law, and cannot be Invoked On the equity side of the federal courts. ' 11. SAME., Summary jAdgment under Rev. St. § 957, against a delinquent for public money. may 'be'granted on motion at the return-term of an action of debt on his bond or of assumpsit-on hijlaccountl,l, but not on a bill,in equity for equitable relief.
t., EQ.17Ijlot,IUJttenlOTJON. ' "
In Equity.,. :13ill for discovery and toeet aside fraudulent conveyances. M. D. Wiclcer8Mm, U. S. Diat.Atty., claimed in his argument that complainant was:a:eontractcreditor, orcreditor at large, and as such "shall have an equal right, with a creditor having a lien through the aid of a court ofequdty, to reach ,property, subject to the pnyment of debts which have been Code Ala.l886, §§ 3544, 3545. lihmttn v. Meyer, 67 1\la. 396; Evans v. Welch, 63 .4la. 256. The bill under c<wsideration meets. in its form, the requirement of the ute. Fraud need not be alleged, nor th(;l concealment of property or fects, with the intention to hinder and delay complainant or other creditors in the collection of their debts, if the same be clearly intimated by the scope and purpose of the bill. Brown v. Bates, 10 Ala. 438, Miller v. Lehman, 87 Ala. 518, 6 South. Rep. 361. The supreme court of Alabama in many decisiqns have upheld thi13law, uniformly, from 1860 to the present day. 'Raitway 00. v. McKenzie, 85 Ala. 550, 5 South. Rep. 322. Judiqial expositions, of state l,aws by state tribunals will be respected and followed by the federal courts. They fix e rule of all transactions that.. withi?its scope. Green v.Neal's Lcssee,6 Pet. 291. Theseexposltlons constltute the law. ld.; Rev; St. § 721. 'Complainant being a contract creditor, with or without a lien, is properly in a federal court in Alabama sitting in equity, and, may· seek here a discovery of property, money, or effects liable to the payment of its demand. R. P. Deshon, and E. L. RU88ell, for defendant. TOULrdIN, J. The main object of the bill in this case is a discovery and to set aside alleged fraudulent conveyances. The bill shows that Some time in the year 1866 one Sheppardwa's appointed collector of the internal revenue in the state of Mississippi., and that he, with the ant, Fredericklngate, and, qthers, as his Bureties, executed .,1S official bond prescribed by law; that some time in the year 1869 said Sheppard committed a breach of his bond', and 1;lecame a defaulter to the govern-
UNITED STATES fl. INGATE.
ltlent ina sum.at least equal to the amount of the bond, $50,000; and .that no part of said default has been paid. The bill avers that the ,defendant, Frederick Iugate, has no visible property to satisfy complainants' demand, yet is possessed of ample means, but that he haa, from time.to time, by fraudulent conveyances and transfers, so disposed of his property as to conceal the same from complainants, and to hinder, delay, ang <lefraud them in the collection of their oeht. The bill asks to have the: alleged fraudulent conveyances set aside and annulled; seeks a discoyery and an accounting for the income, profits, apd proceeds of the property so conveyed and transferred, and to have said proceeds paid into the registry of the court to satisfy the alleged default; also a writ of injunction and the appointment of a receiver. There is a demurrer to the bill, and many grounds ofdemurrer assigned, but the first two grounds and the argument thereol1 present the only questipn necessary to be decided now, and that is, whether a suit of this kind can be maintained in the courts of the United States. This questiol). involves an answer to two .other questions: (1) Whether the United States, when they become a party to a suit in the courts, and voluntarily submit their rights to judicial determination, are bound by the same: principles that govern individuals,-whether, as in this case, they must come into a court of equity like other suitors seeking relief; and (2) .whether the United States, as shown by the bill, are simple contract creditors or creditors at large (for so they are indifferently termed) ofthe defEmclant,Frederick Ingate. If these questions be decided in the a,ffirmative, this cause is to be determined against the '(lomplail1ants on the authority of Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. Rep. 712. It is well settled that, "when the United StateS'voluntarilyappeaTin ,a court; of justice, they, at the same time, voluntarily submit to the law, and place themselves upon an equality with other litigants." U. S. v. ,Bc!1be!1d7, l!'ed. Rep. 40; U. S. v. Barker, 12 Whj:}at. 559; Mitchel v.U. S,., 9:Pl:ltw:743; Brent v. U. S., 1Q Pet. 615. "The principles which govern iaq\lkies a!3 to the 'Conduct of individuals in respect to their contfl\ctsare equally applicable where the United States are a party." U. S.v. Smith,: 94 U. S. 217. In Brent v. Bank, 10 Pet. 615, the court declares that there is no reason why the United States should be exempted from a fundamental rule of equity subject to which their courts adm,inister their remedy. In 18 Fed. Rep. 278, in the case of U. S. v. Coal, etc., Co., the court says: "It is true. as a general. proposition. that when the government becomes a party to a suit in its own courts. it upon the same footing with indi:viduals, and must submit to the law ,as it is administeted betwpen man and man. But rule has its limitations, in that neither the defense of the statute ()f limitations nor that of laches can be pleaded against the United States." , These ll;uthorijJes, it seems to me, answer the first question we have .been, in the 2.( Al[etbe complainants simple contract creditors or creditors at large? ,One, wPo ,has a right, ,cla,im, demand ;founded on contract, whether
J'El)EDAL RE!'Olt'l'ER, '"01.
99 U; 8.398.) 'Y',. '," But it is conceded by the United States complainants are cOntract creditors; or at large. See his brief'and argument. In the'case of Scott 'Neely, tiWpra, the supreme court say: "Iri a11 case/J wherEl,'" cl:llirt otequity jnterferes to aid the entol'cement of a reniedyatlaw, there must be an acknowledged debt, ot onee/Jtablished by a jUdgment rendered, gccompanied by a right to the appropriation of the property 00l the debtor for'tts,payment; or, to speak 'with greater accuracy, there must be, in addition tQ 8uchacknowledged or established interest in the Property or a lien: tpe,:eQn croatlld by: contract or by some legal ,proceeding."
See, also, Fost. Fed. Pro pp. 15, 18; Welser v. 415j'..olaflin v. McDermott, 12 Fed. Rep. 375. 13 Fed. Rep.
It appears that there hU$ been no judgment rendered against defend.. ant, Frederick Ingate,toestablisha debt on the demand arising out of the lmegeddefault on Sheppard's bond. None is averred in the bill, andthere-isno of an acknowledged debt,accompanied by a right to the appropriation of the property of said defendant for its payment. There is no averment of an acknowledged or establiShed debt with an interest in eaidproperty, or a lien thereon, oreated by contract, or by any, distinct legal None is claimed in the bill, and none can be claimed on the a\1erttlents of the bill. ' There is a suggestion in the bill that a judgment was rendered in the court of the United States for the northern district of Mississippi against said Sheppard some time in June, 1873, ascertaining and determining his delinquency. ;But it does not· appear that said ,Frederick Ingate was a party to said judgment, or is in any wise bound by it. Any such judgment, however, would have no force and operation here, except, pE:\rhaps, .for the purposes of evidence. Claflin v. McDermott, 12 Fed. Rep. 375; ., Welser V. SelJigman, 13 Rep. 415. T have'found no statute of the United States, and none has been called ,to my attention, creating a lien on the property of a. collector of internal revenue and of' his sureties from the execution of his official bond or from the date of any default thereon. There are statutes giving extraordinary and summary remedies for collecting any debt or claim that might arise from such default, and the courtf:lsay that necessity has forced a distinction between such claims and others; and it is fonhis reason that these extraordinary remedies have been provided. . The contention of the
United States attomeyis that, when the defendallt, rngata, signed Sheppard's bond, he did so in contemplation of the statutes providing for these extraordinary remedies, and "thus," he says, "consented to the government's employing ,the remedies therein provided for collecting debt to it arising from Sheppard's default." This is true, aud Inwas liable to be pro'ieeded against in the way pointed out by the statute. But it does, not appear that any of these remedies have ever been resorted to. Certainly no such remedies are or can be pursued in this bill in ,and no, reference is made to them in the bill. Section 8638"Re,·., St., provides that, notwithstanding the summary remedy and for by statute, still the right of the United States to pursue any othe;rremedy authorized by law for the recovery of debt$ or demands is reserved to them. The United States: attorney in his gument, however, contends that this bill in equity is a statutory proceeding, and refers to thtl statutes pr.escribillg speedy modes of procedure in such cases, particularly to sections 3625, 3633, Rev. St. j and also to section 957. Now, section 3625 provides for a distress warrant under certain by the solicitor of the treasury against a delinquent officer and his sureties, and the following sections provide for the execution of such warrants by levy, etc., and for a lien from date of levy and record thereon. The court is not advised that any such proceeding ever had against Sheppard and defendant, Ingate,' as his $urety. 'There is noaverment in the bill that any such proceeding and lien was ever had andacq'Uired. Summary proceedings, being statutory, in derogation of the common-law mode of procedure, must conform strictly to the statute, and the record must affirmatively disclose a compliance with the requisitions of the statute. StamphiJl v. Franklin Co·· 86 Ala.'S»2, I) South. Rep. 487jWare v. Greene, 37 Ala. 494; ConnoUy v. Railroad 00., 29 Ala. 873; 7 lawson, Rights, Rem. & Pro § 8777. The United: States attorney, on the argument in this cause, presents to the court a motion for a summary judgment against the defendant, Frederieklngate, and it is the duty ofthe court to grant j'qdgment against him upori such motion, and invokes section 957, Rev. St., to sustain him in this That section, in substance, provides that, .whell suit is brought against any delinquent for public money, judgment may be granted at the return-term on motion. That section can have no application to a suit like, tQat now before the court. The suit contemplated by the statute is such suit as may be properly brought against any delinquent for public money, whether it be a suit on his bond, or for a balance found due On an adjustment of his accounts with the proPer QtJicers of the treasu\,y department. If it is a suit on the bond, it;would \Jean action of debt, and, if a suit for a balance found due on,all ,adjustment of his accounts, it would be an action of ussumpBit. In either case, it would'be,an action atlaw, and could be brought only on the of the coW:t, "Under the statute of the United States, an of pfooeedings at law from those for equitable relief isrequireqjnthe federal cQUrtB." , Scott V. Neely, supra. Butit is apparbytbe bill in this C8se.that the complaill8nts are pursuing a remedy
otber than ihatauthorized by the statutes ofthe United
edy afforded by the statute of the state of Alabama, which the supreme courrof the United States has said can have no application in the federal courts. I do not think that there is any distinction between thtl case at bar and the case of Scott v. Neely, So far as the general principles governbig the two cases are- concernedjand my opinion, therefore, is that this case is controlled bv the in that. It follbwsfrom the views expressed that this co-urt cannot take jurisdiction of this suit, (as was said by Mr. Justice FIELD in Scott v; Neely,) "in which a claim properly cognizable only at law is united in the same pleadings with a claim for equitable,relief." The motion for judgment is denied, and the bill is Jismissed, but without prejudice to an action at law for the demand claimed, and it is SQ o r d e r e d . ' .
SWIEKARD 'V. SWIEltARD
,'Circuit Court, N. D. Iowa, W. D. December 9, 189L)
.' QUIBTINQ..?-'ITI.&-EVIDBNC:B:·. '
Prior to 1869, two brotners, A. and B., were speculating in Iowa lands, and A.. beoomiDg indebted to his father; who lived in Ohio, conve'yedone tract -to him; , The tatherpaid taxes on the treated it as his own untUhis death in 1884when he devised it to his daughter; A fewd,ays after his death there was recorded a quitclaittl deed from him and his wife to B., purporting to 'have been' made in 187Q; ,and shortly afterwards B. conveyed the land to a small fraction of valUe. Th.e daughter sued t'o quiet title, alleging that 'th,e quItclaim deed was a forgery. 'B. ,tostified that before 1869 A. had repaid the debt to his father, and that shortly thereafter he had bought the land from A., wllO lIenthim the deed by mail; a,lso 'that, A. thereafter disappeared, and, believed to dead;, deed was not produced, aud the mother, and the 5ustics before whom It puryo 1'ted to have been acknowledged" denied that they ever, 1l.1.g1)ed: ;S\lqh a deed. B. in indigent during all the time he'!,laimed to lpve owned the IlInd, but never occll-pied It,or attempted to sell or denve any revenue from after his father's ,death. II:eld, that the weight oithe evidence was in fay-orot.the daughter's right, and she was entitled to a title.
In Equity. Bill by EmmaN. Swiekard against Ezra Swiekard; J; F. Kimblll1,and George F. Champ to quiet title to lands. _Decree for complainant.' l , ' McMiUan·'&; -Kendall, for complainant. B. W. Hight, for defendants.
SlIIRAs,J., The property involved in this litigati<m consists of 160 acres of land,situated in Monona county, Iowa. From the evidence it appears that MathiaS Swiekard, the father of complainant, died January 6, 1884', in the statE! of Ohio, where he had resided for many years. By the tel'fi):sof his will, executed February 13, 1882, he devised to complainant the land in controversy. On the 'lOth day of Jimuary, 1884, there was filed for record in Monona oounty a quitclabndeed of the land, bearing date September 2, 1870, and purporting to be signed by Mathias SWiekard and wife, the grantee therein being Ezra SWiekard;