OpenJurist

347

of parties who have legal authority to hold and vote them, they will. be· voted. 'Thecourt'will be,moreover, htippyto 'entertain any for voting them which will result in the management of this road in that it n.eed not be wrecked; in such manner that its matchless properties may be utilized to pay ita obligations as they matur&) and to protect its values. It is well understood by the court that the mere fact that this stock may not be voted in its present illegal 8tat1L8 is a. menace to the credit of the Central Railroad, and to the power of the court and.of its receivers to redeem it for the benefit of all concerned. We have no doubt that, properly managed in accordance with the law; with the encouragement of those who are friendly to it, which its great importance deserves, the Central Railroad & Banking Company cannot only pay its obligations as they mature, but rehabilitate its fortunes, imperiled as .they are by this illegltl trust voting a majority of the stock, the exercise of which the court has enjoined. The court is quite as solicitous to protect the interest of the creditors as of stockholders of this great property, but there is nothing in this motion which will justify the court in changing the order, which was mainly, indeed, we may say almost wholly attrihutable to the wisdom, experience, and acumen of the learned circuit judge; an order intended to preserve the property for the present, to gather anew its dissipated assets, and to restore it as speedily as possible to the lawful charge of those who may be fOUlld legally entitled to its management and control. Let an order be taken, denying the application.

DANmLS 11. BENEDICr et

ale

(CirCUit Court, D. Co£orndo. May 17, L

J'URI$DIOTION OJ' CIROUIT COURTS-PARTITION.

a

The circuit courts of the United States, sitting as courte of equity, have jurladlOo tion of suits for the partition of land.

PARTITION-FRAUDULENT DEORIIB OJ' DIVOROIl-EvIDIINOIl.

Plaintiff, decedent's wife, in partition against trustees under his will, alleged that she agreed that a suit for divorce should be begun against her on the sole ground of desertion, and that a decree of divorce should be entered therein, in consideration of a sum of money needed for her temporary support; that sucll agreement was procured through decedent's paid agents, when plaintiff was greatly enfeebledby disease; and that decedent fraudulently obtained a decree of divorce on the ground of adultery, of which fact plaintiff did not learn until she had removed to the east. Plaintiff alleged that she was utterly ignorant of the pleadings in the suit, and denied the charge of adultery, and that, as soon as informed thereof, she brought suit to vacate the decree. Hetd, that the facts alleged showed a cause of action; In such case the fraudulent matter alleged was extrinsic to the matter tried by the court in the suit for divorCe, so that the decree was open to attack in the present collateral proceeding. Though in such case plaintiff was in fault, to some extent, In consenting to a collusive decMe, yet the parties Were. not in pari deUcto, and .ahe was not thereby estopped from attacking the

8.

SAME-COLLATBRAL ATTACK-ExTRINSIO FRAUD.

.. ·SAME-COl,LUSIVII DEORIIII-UIN PARI DELICTO."

3'48
15. LIMITATIOn-TttullT8. '

n:DERAL' REPOMEn,

'."

voL 00.

by the statute of lililitat1oDs.

"'SAME-PENDENCY OF 811IT,

The suit, being to recover property held In trust by defendanta, was not affectea .

.

. The running of the statute was also prevented by the snit brought in the lifetime of decedent to vacate the decree of divorce, which was pending at. his death, aboni , ·three.months before the present. suit was brought..

Statement by .P4aKER, District Judge: .;!n"Equity.The plaintiff in this case, Lilyan B. Daniels, as the wife of William B. Daniels, deceased,brings this suit in equity, by her bill tiled, .tQ. have a partition of a large estate, alleged to be worth as much She alleges she was married to William B. Daniels on July S, 1882, in the'stateof Connecticut; that they lived and cohabited husband and wife in,the city of Denver; that William B. Daniels died in the city of ,Denver on the 24th of December, 1890, seised and possessed oftha l/l,rge amount of personal and real property described in the. bill. Plaintiff further alleges, that on March 2, 1891, the defendants"Mitchell Benedict, William G. Fisher, and Lewis C. Ellsworth, caused to be'presented for probate the will of the said husband of plaintiff;' that defendants conspired to ,prevent plaintiff from receiving anything from the estate of said husband. Plaintiff asks a partition of said estate. Plaintiff further alleges in her bill that. Sometime before the 1st day of March, 1886; the said William B. Danieleand wrol)gfullyrefused longer to live or cohabit w\th the plaintiff, and had expelled and excluded her from his her residence and borne in the city of Denver, and had from such time thereafter refused and neglected to maintain or support her. or to furnish any means whatever for her maintenance or support, so that being, tbrough the power and influence of ber said busband, deprived of friends in tbe city of Denver. and being without money, she was compelled to leave said city of Denver, and to find a borne and friends and assistance elsewhere,; that thereupon she removed temporarily to the city of Cheyenne, in tbe thEm territory, but now state, of Wyoming; that, while residing at said city of Cheyenne, she became severely and dangerously ill, among sti"angers, and without money; that her mind, as well as her body, had become gl'eatly impaired, and at times sbe was Wholly bereft of reason a\td consciousness, and at all times duriug her said illness, when not,whO'Hy unconscious and mentally irresponsible, she was only partially able to think or act, and was at all of said times unable to act intelligently or advisedly;. tbat, while so ill and in such condition. she was approached and surrounp,elLby the agents, employes, and emissaries of the said William B. Daniels, 'and a, settlement of her domestic troubles and difficulties witb tbe proposed by tbe agents, emissaries, and confederates procure.d an(lpaid by the said Daniels; that, while in the condition before mentioned,it was represented to and urged upon her tbat her said husband, the said WmialD.' B, Daniels, would never live or cohabit witb her again; that wo\)id ber, or furnish means for her support; tbat he had become tb"rou'ghly estranged; that he would use his great wealth and his influence in the city of Denver to cause her to be ostracized and practically driven andbanislied from the said city of Denver, and tbat she would be unable to assert 01' recov!.'r her marital rights except by long, tedious, and expensive litiA'ation; that pending such litigation sbe. would bave no means of support; reasons, it would be better and wiser for her to accept and that. fol' all of terms from her said· Dusband. and that he was anxious to procure a divorce.

DANIELS tl. BENEDICT.,

34.9

The furtber states that the person who made such representations and arguments pretended to be a friend to her, and pretended to be Rreatly sbocked ,andindign&nt at the conduct of the said William B.Daniels; that she fully conlid,e,d in said persqn, and believed tbat he truly was what he pretended to be, and"sobelieving, put full faith.and confidence in bim; and that sbe tbereupon authorized and caused said person to open negotiations witb ber said husband, or his attorneys, for the purpose of effecting some kind of a settlement or adjustment between them. The further states that on or about the 1st day of March, 1886, while she was still ill in body and in mind, and unable to attend to business, and while in gre.at distress, mental as well as physical. as before stated, the said person .reported .to the plaintiff that the said William B. Daniels desired to be freed from the bond of matrimony then existing between bim and the plaintiff, and the said person, for the purpose of procllring the consent of the plaintiff, representelito her that a suit might be commenced in one of the courts of the Slate pf, Colorado by the said William B. Daniels, as plaintiff, against heras defenpant, on the ground that she (the plaintiff) had abandoned and deserted the said WilIiam,B. Daniels, and that if such charge were not denied, and .said suit were not defended. he, the said William B. Daniels, could and. would .procure a divorce upon the said ground of desertion and abandonment; and that for the purpose of procuring the assent of the plaintiff to said arrangement the said Daniels offered to pay to ber a sUp) of money sufficient to lDeet her then pressing wants and necessities, and to make her for a time free from financial ,embarrassment, but which sum so offered was whollyouL proportion to the ability of the said Daniels to pay, and wholly to enable the plaintiff to keep and maintain herself in the station of life to whichl>he had been accustomed, or commensurate with ber position and stawling as the wife of the said William B. Daniels. The plaintiff, being, as before stated. in great distress, bodily and mentally, being thereto ad vised and urged ,.by..said person, whom she still implicitly trusted, and being then dependent upon strangerl:l, consented and agreed that a suit might be wenped against her in one of the courts of the state of Colorado for the purpose, Q'f enal:lling. the said William B. Daniels to procure a decree of divorce upon the gi:04lld of desertion and abandonment, as before stated, but upon no other gl'oJlnd Whatever. That pursuant to said arrangement the plaintiff, tbenibeiJ;lg at Cheyenne, still sick and ill, and unable to move or travel of her own accord or. 'Yitbout help, was brought or carried into this state at the instance and by procurement of the said William B. Daniels, and ,under the control of his l+gents and emissaries, and while in said state a paper purporting to be a writ of summons in said suit of William B. Daniels against bel' was served or pretended to have been served upon her, and she, at tbe instance 'of the agents, emissaries, and confederates of the said William B. Daniels, induced to and did accept service of said writ or paper, being informed at the .time, and still believing, that the complaint in said suit, and the ground therein stated for the divorce to be obtained, was abandonment and desertion only; tbat at said time she was still sick and ill, mentally and, bodily; that she was then at a house surrounded by and servants provided by the said William B. Daniels, and had but little if any control over herself, and during all of said time was wholly and completelyunder the dominion, influence, control, and supervision of the said WillialD B. Daniels, his agents, servants, emissaries, and confederates, and in an tbings was made to do, aud did do. as said Daniels, or his agents or confederate.s did or desired, until said decree of divorce was procured; that afterwards, on or about the 16th day of March, 1886, she was informed that the decree of divorce had been rendered in said cause upon the ground but she was not tben informed, nor did she in any manner

,fear' or ,that, procured uvon 'snyotbet grouM or statementthiui'that Of desertl'dn·.nd abandontnal1t; as afores!'LIlJI: liliat: soon i from of Oolorado, and comttiencM'Wiesideat'flbbl'tltyofCbicll.go.. hl the: statb'M minols, and coiltinuell',tliere. iW tt11'tttl' reth6'f1ed totbe 'city hf"New York, in the state'uf': 'Bbe now Tesides. . '. ' ",' · ' i'l Theplail\tmifurther:representsthatfora long time 'after the said 16th day ofMarch, 1886. and after her removal to said city of Chicago, slip remained m, an'd did not recover her health until during the summer' of that during all of said time her 'Iilind was so enfeebled by her conti rt ued illness and llhYS!CaI 'weakness that she wits wholly unable to give ,ahy;attentiohorconsideration to her affairs, and by this time, oWing to' the';e'ltpense cauSed hy'her illness. she was again without money; that ll.bouttlliiftitne, and.not'before; she leatried that the decree of divorce in said s'uit had been ,'procuredupoh thegrol1"d th,gtshe (the plaintiff) had bi!en guilty of adultery iVith a eei'tain perSon named lo'the complaint in that stiit, andthilt'the Charge ofabandollment and deSertion had not been made in said sult;tllat soon therea'fter8he:learned and discovered that she had been deceived,duped, mIsled, aMin'Veigledbythe agents, emIssarie!l, and confedel'ates of the said WilllamB. Daniels'into giving her consent to the decree of dIvorce upon the 'ground stated and alleged in the complaint therein, and in the decree· of divorce, and she then learned that the said person who came to her before said 1st day of' March, 1800;'atld who professed to ,be her friend, and wHo also professed'to be so and indignant at the conduct ofthe said William B. Daniels t6l11ards your plaintiff, aspy and detective who had been procured, and' paid by the said :Daniels for the purpose of, duping, and leading the plaintiff into the scheme and plan devised and cotlL'Octed by tbesaid Daniels, his agents, attorneys, employes, and confederates,and which wasdarried out a8 aforesaid. i The plainlilf further statestbat never saw the complaint in said suit, nor wall the same ever read to' her, '1101' the contents thereof in any manner stated to that Sllll did not read the paper stated to be aSllmmons.Mr was the same read 'to her, nor was she then able, ph)'sically or menta:Ily, to'read and understand the same. and that she signed the acceptance of setvicE' thereon at the and instigation of one of the agents and confederates of the said WilliamB. Daniels, on that it was a mere formal' matter, and at'said time she had full 'faith and con fidenee in the i1'ltegrityltnd good faith oftheperson at whos6solicitation she siKned the same, and then believed that the said suit, thencotnmenced for the purpose of divorce, charged her with 'desertion and abandonment only, and shl'! did not know, nor did she have il\ the slightellt manner any suspicion, that any fraud, trick, or deception wasintended to be practiced upon hl'r. And the plaintiff expressly charges that the said statemtlnts in said complaint made, accusing her of adultery with t,he person therein named, were and are absolutely and wholly false: and she expressly charges that the evidence given at the pretended trial 'or hearing of said cause, at which she was not present, and which her knowledge, was false and fraudUlent; and she avers and charges that the persons wl1.o testitled were suborned by the said WiIllam B. Daniels, Ol'some of his agents or confederates, and by money' paid to them by the said William B. Daniels, or, paid to them by some of his agents oTconfederates, Were induced to give a,nd did give false, foul, and perjured testimony against the plaintiff in said suit, that by virtue of foul,and perjured testimony only was the said decree of divorce in said suit p r o c u r e d . ' , ' And the plaintffffurther states and charges that, when she first heard that the-divorce had been procured in said Buit upon the ground of adultery, she

- DIlNIl:WJ V. BEliEDIC'l'.

351

began. to mllke dijige'1t inquiries, andcont.inued them until she learned which cou/dthen /lod that, as 8OOn4s she hereinl;>ef9re nientioned bad became convInced that' the been practiced upon her, sile caused to be commenced a suitio the cOilnty court of said cOllnty 'of Arapanotl, In which said divorce had been obtained, to set Rsille,aonul, and cancelsaid decree, on the grollnd of fraud, and which saili suit .Y{aa stiUpending andundetermioed on the 24th day of Dt'cember, 1890, when the said William B. Daniels departed this life as aforesaid. . The f,urther charges that the said"decree of diyorce was is othehvise' Yold,hivil1id; and of .'no effect, for tbereason that the said county court of Arapahoe, under the constitution and laws of tbe state ofOPlorado,: tlid not have and :eouldnot halVe jurisdiotion 'olany suit fOl' divorce; sbe avers and. charges that said pretended R'J.,d is utterly null aud voId for ,1IIa.nt:of jUrisdiction by said court of the person".' the defendant. of over the J,,' . , ..
> ,

:.l'·""

,<

·

.To the ,hi,ll. William C. Daniels

files a

and for cause thereof

Thatth.e $I:\id complainant bath' not, by her:said bill, made sucb a case as entitleS'.beJ;, . iI;l3 .court of equity, tpany relief frpm or against thiS' defendant, toueping ,matters contained in tl1,6 sai!l b111, or of any such matters; and that 'by the said complainant'S' own showing, by her said bill of complait\t;' that thl:! said compla.inant is not entitled to. the relief prayed by her said' bill· against this defendant. Sarah M. 'Kenyon. and ·William D.Kenyon, two of the legatees under the will; 'file a demurrer, and for cause thereof say1 Thatsaid bilIdoes not contain such of nor does it contain any matter of entitling the plaintiff to any relief against these defendantw. 'And the said bill shows upon its face that this court has no jurisdiction of the subject-matter of the cause of action therein set forth. The other defendlmts in the case file demurrers of the same character, setting out 1lS' Thattbe'lliidcomplainant hathnot, in and by her said blll, made or stated $uch a case as doth or ought to entitle her to any reliet,as thereby sougbt and prayed for, from'or against any one of the said defendants. Demurrers overruled. W. S. Decker and T. J. O'Donnell, (Hugh BuUer and Hatch &: Warren, of counsel,) for complainant. . " 0. Phelp8, for Ellsworth, Parnell, Croke & Fisher.. " ,

. Mitchdi Benedict. ,pro 86.

ter8on, for

Goo. J··Boat, for Hart. Th08. M;' Patter80n, Wm. P.Hillhouse,Ohaa. Hart.zell,and J. McD. Pat,

.PARKER, District Judge, (after stating the.facts as above.) This is a suit in equity for partition. The plaintiff claims that she, as the wife of William B, Daniels, deceased, under the laws of Colorado, is entitled by inheritance to one half the property of which he died seised ; that there was inheritfrom the said Daniels,-his son, William C. Daniels. There can be no doubt that courts ofequity have concur-

352
rent

FEDERA:l, REPORTJ'nR,

vol.

50.

§§ 140,174, 1387 f Story, Eq. law' is

of law of sutts for partilioll. " §§ 646, 658 .. III the last'ofthese secjurist: "",,' "The courts Lmeaning courts of equity] have assumed 8 general concurrent of law inall·cases of partition. So that it is not jurisdiction with now,deemed necessary to state in the bill any particular ground of equitable interference. I J '

Justice BREWJjlJ;t, in Smeliing Co. v. Rucker, 28 Fed. Rep. 220, {lIlly recognized all<l:,lleclared the rule upon this subject. There can be no doubt about this court, as a cirouitoourt of the United States, sitting as a court of equity, having jurisdiction of this suit in partition. But itis claimed that plaintiff,is not entitled to any interest in the estate of William B. Daniels, because at the time of his death she was not his wife, because upon or about Maroh 16,1886, she was divorced a vinmatrimonii from the said Daniels by a decree of the county court of Arn,pahoe oounty, Colo. The fact that she was so divorced is fully set bill, but it is further averred that said divorce was obtained by: d:eeeit, misrepresentations, chicanery, and fraud, and that, court should disregard the same. If the facts are proven as 'alleged, certainly a case of fraud will be shown. But can this court the decree of divorce of,the county court of Arapahoe county, if the same is shown to have been obtained by fraud? If it cannot, such decree is a barrier against any decree of partition by this court, because plaiptiffhas no intetest in, the property to be partitioned. It is well estll1:l1ished that a court will not set aside a judgment, or disregard the same, becap.se it was,founded on a fraudulent instrument or perjuredtestimoIly, or on any matter intrinsic t.o the matter trilld by the first court, or on a fraud in the matter on which the decree was rendered. But it is ' eguall! well settled that a court of, equity will, 011 account of fraud growing ,9ut of matter extrinsic or collateral tathe matter tried by the first court, set aside or annul a judgment or decree between the same parties. Mr. Justice MILLER, in U. S. v. Throckmorton, 98 U. S. 61, said: "But is an admitted exception tothis genel'al1'nle in cases where, by reason pf something done by thesnccessful party to. a sU,it. there was in fact no illusory'trial or deception of the issue in the case. When the unsuccessful, party has been prevented from exhibiting fully his case, by fraud or deception. or deception practiced on him by his opponent; a.s by keeping him away from court by a fal8e promise of a compromise; or where the defendant never had knowledge of. the suit, being kept in ignorance by the acts of the plaintiff; or where ari attorney fraudUlently or without authority assumes to represent a party, and connives at his defeat; or where the attorney, regularly employed, corruptly sells out his client's intel'est to the other side,-these and sImilar casf'S which show that there has never been a real contest in the trial or hearing, Of the case are the reasons for which a new suit may be sustained to Bet aside and .annul the former jUdgment or decree, and open the case for a new and a fair The court, speaking in reference to authorities referred to iIi, the abovenamed opinion, says:

·DANIELS V. Bl!lNEDICT.

353

"In all these cases. and many others which have been examined. relief has been granted on the ground that. by some fraud practiced directly upon the party seeking relief against tbe judgment or decree. that party bas been prevented from presenting all of bis case to the court." A fraud practiced in· the procurement of a judgment will furnish grounds for attacking it in a collateral proceeding. Mayor, etc., v. Brady, 115 N. Y.599. 22 N. E. Rep. 237; Murphyv. De France, 101 Mo. 151, 13 S. W. Rep. 756; Hass v. Billings, 42 Minn. 63,43 N. W. Rep. 797; Stunz v. St'!f.'nz, 131 Ill. 309, 23 N. E. Rep. 410. The same rule applies, in regard to attacking it for fraud, to a decree of divorce, as the one applicable to any other judgment or decree. 2 Freem. Judgm. p. 860, § 489, says: "Decrees of divorce may, when obtained by fraUd, be vacated in the same manner and under the saine circumstances which would warrant the vacation of any other decree. although the party who obtained tbe fraudulent jUdgment bas contracted another marriage." Mr. Black, (1 Judgm. § 320,) says: ..Aside from Il'gislation. the courts wiII generalIy hear motions to vacate divorce jUdgments on the same grounds and conditions as any other judgments. except. perhaps. that they proceed with greater caution, and with more anxious care of the intervening rights of strangers. " The above rule is sustained by Adams v. Adams, 51 N. H. 388; Edsony. Edson, 108 Mass. 590; 2 Kent, Comm. 655; Story, Confl. Laws, 597. In Fermar's Case, 3 Coke, 77, 78, it is declared tbat"'rhe law so abhors fraud and covin that all acts, as well judicial as others, and which of themselvesare just. yet being mixed with fraud and deceit, are in judgment of law wrongful and unlawful." Without multiplying authorities, which may be done, I take it that the true rule is that a decree of divorce stands on the same footing as every other judgment or decree, and, if obtained by fraud growing out of matter extrinsic or collateral to the matter tried by the court rendering the decree, it will be set aside or disregard ed. The next question which presents itself is, does this court have jurisdiction in this case? We have seen that there is no doubt about its having jurisdiction to make partition. If so, can it, in the exercise ofthis jurisdiction, 80 far listen to an attack on the decree of the county court of Arapahoe county as to disregard it as fraudulent, if such fraud is proven'? The law seems to be well settled by numerous decisions of the supreme court of the United States that it can. The last utterance by the supreme court on the subject is found in Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. Rep. 62. The effect of the decision in the above case is that the federal court cannot require the state court to set aside or vacate the judgment, but it may, as between the parties before it, if the facts justify such relief, adjudge that the party practicing the fraud shall not enjoy the inequitable advantage obtained by his fraudulent decree. The principle announced is: "A circuit cOllrt of the United States. in the exercise of its equity powers, and where diverse citizenship giVes jurisdiction over the parties. may deprive V.50F.no.5-23

I'EDmAL RUoBTEa, vo1.SQ.
omtl"Cj!ftt tlite citcomstances' would authorize; 'relief. 'by a, federal eoUI;t.lfthe,judgmenthadbeen:rendered ,byU. and not by_state court; decree. to that effect does not i operate 'on the state court. but on tbe parties." d<The. :abOve fally sustained by A1'Towsmith'v. :Gleasrm, 129 Rep. 237. Tbewhole subject was f':lllyconsidered iii 'Jo,*8fmiv. Waters, 111U. S. 640;,667, 4 Sup. Ct. Rep;·619. The cotlnhl'thatcase said: ' 'and jutlgmentsmay. at instance of the ,'I(The'inost 80lemh pattiea"ooset:aside'or rel1dered -inopera'tive for fraud; The fact of being a party, 'HOes' not, estop, a person from' obtaining, in a court of eqUity. ,relief against fraud. It is generally parties that are the victims ot fraud. The cOllrt is always open to against it. whether committed qr of · .In 8uch cases the court dpes ;Dpt'act"S aCQ,urt of review· not does it inqll1re,ioto any inequalities or errots ot 'proceeding in but it will scrutinize the conduct of thl:' parties. and. if it finds that they have been guilty of fraud in obtaining a judgment or decree. it wllLdeprixethem of the benefit of it; and ot any they hlwe,derived underit." deClired",inGui1tesv.:Fuentes, 92 U. S. 10, and in Barrow v. Hunwn;'99U. S. 80'. ," ',' ' , . , There is no doubt in my mind that the tribunal and the form of action have been properly selected. There is no doubt but the bill of complaint in this case 's'ets \1P sufficient faetsOO'show a'Ca8e of procuring a decree by fraud; andtberefore it sets out sufficient facts to constitute a cause Qf,aotiOD', and:tQ authorize the relief prayed. ,SOm8 fa1l1t:may.be attributed to the plaintiff, growingont of her conduct in the divorce proceedings in the county courl of Arapahoe county. BQ.t certainly. fro)1;l the facts alleged in the bill, the parties were not in pari delicto; is, they not equally blameworthy. In such case in furtherance of. justice and a sound public policy, ai<1J the is comparatively the more innocent. 1 Pom. Eq. Jur. § 403j 2 Porn. Eq. Jur. § 941. It cannot be asserted that plaintiff iBeatoppe!i};>y her .conduct from proceeding in this form of action, alt1:lc;:lUgA ,the ,effect, may be to disregard or treat as a nullity the decree of.qivorce grllute<i :by tpe county court, of Arapahoecountyj for aheWllS ina C(>nditionto assert her. rights· in that court, and she must have been in tlm.t co.ndition ,before ,she ca;n be estopped from attacking the , decree rendered againether. The statute of limitations was alluded. to in the argument of the de.. murrers as being a to the plaintiff's recovery, although this.is not Qut as a of demurrer. This is llo suit to recover property by plaintiff that is held in ,trust for her by defendants. If she has any property rights in this large estate; then the holding Qf the property l'piqll her <lJ,'eates lI.n express trust in hel' favor; To such a tr1,lst relation the statute of limitatiop has no application. Lewis v. kins, 23 Wall. 119·. The principal aim of this suit is to obtain partition of p:roperty I lI.nd 8n incident. thereto.is to disregard or treat as a nullity til, decree of divorce. Besida, by thealleiations of, the,bill, the plain-

arl!l\ltfljl"C)'ftb&b&befttofa jUdgment 'frnudtllently obtained byhlnfln a state

IrA.TIONALEXCH. BANK OF DALLAS 17. BEAL.

855

p'racticed upon her, brought a$uit the county court of Arapahoe county to setaside andarinul the decree of divorce on the ground of fraud. This suit was pending on the 24th of December, 1890; when William B. Daniels died. Then,on April 2, 1891, she brought this suit in this court. The point is presented in the brief of counsel for plaintiff in support of' thf'l allegation in the bill, that the county court of Arapahoe county, under the constitution and laws of Colorado, did not have, and could not have, jurisdiction of any suit for divorce. It is not necessary, in passing on the several demurrers to the bill, to pass on the question involved inthis propositfon. !tis a question of such delicacy, and one which may be so far-reaching in its effects,' that I prefer that it should be settled, if to be settled at all, by my Brother HALLET, who is more familiar with the constitution and laws of Colorado than I am, and, because of his large experience on the supreme bench of the state and on the federal bench, is much better qualified than I am to pass on this question. The demurrers of William C. Daniels, Sarah M. Kenyon, and William D. Kenyon, Lewis C. Ellsworth, Laura. Parnell, Henry Martyn Hart, and Thomas B.Croke, Mitchell Benedict, and William G. Fisher, are overruledo

tiff, as soon as she discovered the fraud whic:Q had

NATIONAL EXCH. BANK OF DALLAS fl. BEAL,
(C(rcuit Court, D. Ma88achusettl. Hay

(two cases.)

40 l89J.)

PBOOBJmL

Nos. 2,978, 2,978-

L

BJJI][8-COLLBOTIONS-DRAIITS-RIGRTS 0" OWNBB-BPIIOMC

A bank whioh had received a draft for oollection sent it to its correspon4ent bUk at the residence of the drawee, aud the draft was paid to such correspondent. There were .no mutual accounts between the two banks, but it was the custom ot the correspondent to remit the proceeds of collections at stated periods. H.eld that, until this remittance was made, or the principal bank had given the original Owner of the draft credit for the avails, the original owner of the draft, as theowner of the proceeds thereof, to recover them from the correspondent bank. Though the correspondent was the agent of the first bank, and payment to it was a payment to the principal, yet until the proceeds were actually remitted to sucb principal. and mingled with its general funda, or were so credited, the owner of the draft nad the option to decline to consider it his debtor, and to claim the proceeds in the hands of the agent.

.. SAMB-PAYMBNT-DBBTOR AND CREDITOR.

to that

L

SAMB-INSOLVIINCY-LIA.BILITY 011 REOIIIVIIR.

Where the princiPlJ.l fails, and a receiver Is appointed, he takes the proceeds ot the draft, when remitted to him, SUbject to the same right of reclamation by the owner that the latter had as against. the agent. ' Where, in such a case, there are mutual accounts between the two banks, the right of aj1;ent to set olf the amount of the colleotion against the principal's indebtedness to It cannot be adjudicated in a suit in equity between the owner of the draft and the principal without making such agent a party.

.. SAMII-SIIT-OFl/-PARTIES.

inEquity. It appears from the allegations of the bill that plaintiff' sent to the Maverick Bank two drafts for collection and credit on general accoWlt,