HINCHMAN tl. KELLEY et
(oCrcuit Oourt, D. Wa8Mngton, W. D. February 16,1899.)
IIlQUITT-J'URISDIOTION-SUIT TO DIIOLARII TRUST,'
.A. .suit in equity to declare a trust, not evidenced by any and to establish a claim of title to land, by a vendee of the cestui que trust of a vendee named in an executory contract to convey the land, commenoed after the death of both parties to said contract, cannot be maintained; because (1) sufficient evidence to prove the averments of the bill as to the interest of the plaintiff's grantor must necessarily be lacking; (2) eqUity will not aid one who bUyS a lawsuit on iiYeculation.
In Equity. On demurrer to bill. Sustained. (J; 8. Jtbgg, for plaintiff. GalU8ha Pars07l8 and J. O. ·for.·defendants·
. lhNFolm, District Judge. I haveoonsidered the demurrer to the bill in this caSe, and I think it is well taken. .It is difficult to determine from' the bill the nature of the suit. ; The averments are such as are ordinarilyiframed to support a bill for :the specific performance of a contract,otto declare the existence of a .trust in regard to the ownership of propertYj but the prayer asks for no such relief. The prayer is appropriate to a bill of peace, or a bill to remove a cloud from the title to real estate. I am satisfied, however, upon consideration of the bill as a whole, that the complainant is not entitled to either form of relief. The Jlrayeroannot be granted, because the bill shows affirmatively that the eomplainant is not the owner of the legal title to the property which is thesubjoot of the suit. He has, therefore, no foundation for a suit in the nature of a bill of peace, and he has no title which can be clouded. Only the·, owner of the legal title can maintain a suit in equity for such relief, either according to the forms and rules of equity practice, or the Code procedure of this state. Formerly a suit could only be maintained by an owner who waR in possession, but now, under a statute of this state, a suit to determine adverse claims to real estate can be maintained If the property is not in the possession of anyone; but the plaintiff, to have a standing in court, must show that he has a legal title t9 the property. This bill sets forth as the foundation of the right which the complainant claims an executory contract for,the conveyance of the title to certain real estate, made in 1872, which contract was never performed. The vendor in the case has since diedj the persons whom the bill alleges the· reJllowners of the property, and for whom the vendor in the contract was a mere trustee1with power to sell, have diedj and the vendee n'amed in the contract has died. It is claimed that this vendee was also but an agent and trustee for another pady. There is in the bill no averment that any of the persons interested, while living, gave any information as to the existence of this secret trust, or did any act· to perpetuate evidence of the existence of such a trust; and it is only a vendee of the cestui qu6 trust, who now appears as complainant, asking to have the trust declared,-a trust that is not evidenced by any writing, and which could
GASQUET t1. CRESCENT CITY BREWING CO.
only have been known at the time of its creation to persons who are now dead. I think it is impossible to prove the averments of this bill by any legal evidence, and on that ground the suit must fail. I hold also that the court ought not to hear a party who comes before it as a purchaser of a mere right to sue. The purchaser of a legal right may by his purchase become entitled to protection and aid from a court of law, and, if entitled to it, he can obtain appropriate relief in a court of law; but courts of equity will render no assistance to any scheme of speculation depending for success upon its determination of any controversy. In other words, equity will not aid the purchaser of a lawsuit in an endeavor to derive profit from such an investment.
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(Circuit Court, E. D. Loui8Wn,a. ,ebruary 5, 1899.)
MASTER'S REPORT-Tum OJ' FILING.
The term "month," as ulled.in equity rule 88, giving one month ,from the time of filing a master's report to file exceptions thereto, means a calendar, and not "" lunar, month; therefore, where the report is 11100 on May 28th, a confirmatol') order, made June 28th, is premature. '
The formal withdrawal by an exceptor of an exception to a master's report on the order-book and in a paper filed by the exceptor in the cause, is a sufficient withdrawal of the exception, although no order of discontinuance is allowed by court, and the report will stand confirmed,' nnder equity rule 88, after the lapse of time fixed therein.
Where a receiver, not in his capacity as trustee, but for himself, and against the trust-estate, provokes, adversely to all others in.interest. a contest, by presentillg to the court a claim for compensation, and the matter is referred to amasteJ:. hi,S report, so far as exception thereto is concerned, falls within equity rUle 83, provid. ing that the report shall stand confirmed on the next rUle-day after a month has expired without the filing of exceptions; a\ldequity will not hear exceptions made thereafter, unless the party was prevented from making them in time through accident, surprise, mistake. or fraud. '"
In Equity. On exceptions to master's report. Richard De Gmyand F. B. Thomas, for petitioners. E. HllWard McCaleb and Frank L. Richardson, for respondent.
BILLINGS, District Judge. The court allows the amended and enlarged -statement of the testimony to be filed, for the filing of which leave was asked by the solicitors of the petitioners. Indeed, it may be doubted whether the practice in this district, under rule of May 22, 1880, whereby it is required that each party shall file a note of evidence, giving by dfic reference all the testimony which is relied upon, does not do away with the objection for want fullness of reference to the testimony whioh, in districts where that rule does not obtain, would be good. As to the meaning of the term "month" in rule 83, I think it is a .calendar, and not a lunar, month. It would, therefore, follow that, as