WILLS II. PAULY.
. (O£rc'uit OOUrt, S. D. Oalifornia. June 18, 1892.'
EQUITY PBAOTIOB-SUTII STATUTES-BILL :BY MARRmD WOMAN.
A state statute allowing a married woman to sue in her own name does not gOvern the federal courts in equity suits, and where the fact appears on the face of the bill the same is demurrable. .
to bill. Sustained.
Suit by Mary E. Wills against A. Pauly.
Millay &:- Bennett and Del Valle&:- Munday, for complainant. W. Oole, for defendant.
Ross, District Judge. This is a suit in equity, brought by the complainant alone, and, as the bill shows that complainant is a married woman, the demurrer raises the point, among others, that the suit cannot be maintained. In response to this point the defendant cites and relies on section 370 of the Code of Civil Procedure of California, which provides that a married woman may sue alone "when the action concerns her separate property, or her right or claim to the homestead property." If the present was an action at law, the provisions of the statute referred to would be applicable and enforceable in this court; but, being a suit in equity, the state f1tatute has no application here. Jurisdiction in equity is exercised by the federal courts uniformly throughout the United States, and is unaffected, by state legislation. "The chancery jurisdiction given by the constitution and laws of the United States," said the supreme court in Boyle v. Zacharie, 6 Pet. 657, ".is the same in all the states of the Union, and the rule of decision is the same in all. In the exercise of that jurisdiction, the courts of the United States are not governed by the state practice; but the act of congress of 1792, c. 36, has provided that the modes of proceeding in eqUity suits shall be according to the principles, rules, and usages which belong to courts of equity, as contradistinguished from courts of law. And the settled doctrine of this court is that the remedies in equity are to be administered, not according to the state practice, but according to the practice of courts of equity in the parent country, as contradistinguished from that of courts of law; subject, of course, to the provisions of the acts of congress, and to such alterations and rules as, in the exercise of the powers delegated by those acts, the courts of the United States may, from time to time, prescribe." See, also, Bennett v. Butterworth, 11 How. 669; Greenv.Oreighton, 23 How. 90,105. It is the rule in equity practice that a married woman must sue by her prochein ami, and when it appears that she does not so sue the bill may be demurred to. Story, Eq.Pl. § 494; Daniell, Ch. PI. & Pro p. 143; Mitf. Eq. Pl. 153, 154. Provision for the appointment of the next friend is made by rule 87 of the equity rules. For the reason stated the demurrer must be sustained. So ordered. v.51F.no.6-17
The prohil:iition of the constitution of the United Btlites against tlle enaetttlent of state laws that shall impair the obligation of contracts applies only to the adoptioD C()DsW,l!tioll" of' P4!'ption qf a or theexerqiiM! :of ldme form (Sf legislative tlowel.' sublieifl1entin time to the C()ntract.
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of F. in administering upon his estate, that the obligation,of the contract of the own-er of the tall: deed was not impaired by the probate IIa1e withlJl the prohibithe j:onstitution. tion <SIitktbUw 1iiIthiJ Cd1.m't.) ,
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-,In EquittonDernurrer to the BilL , HlYYl76 14c 6:lrBon, for complainant. ' ,1 JUlniUBR'ocM8fm, for defendants. '
Gtt.BEBT\ Circuit The cotnplainant suU, alleging in his bill; in su'bstiLl'lcejthait -in ,October, 1878,his grantor acquired from the territory of: ' tax 'title to cemin land in King county, sold, for :unpaid 'taKes: ll.s'the1Jroperty Of one Lumley Franklin; that possession' was takenbyJ complainant's grantor under said tax deed, and maintained' until theoon'V'eyanoo oftbe'property' to complainant in September, 1885, sirice-"whiehl time he lid been in,Posaession and 'made valuable improvementisj that on 1887,; b!1order of the probate court of King ,an' administrator of of.'said Franklin, then deceMed, , wati appointed, upon petition of· the administrator and' under the· order' the said court the land in question was sold as the' property of 'snid decedent, and ito: pay a tax claimed by the territory to be. dne iTomsald:Franklin;lhat said sale waS made in violation of the contrMt' whereby thetettitory :sold said land to complainant's grantor for unPaid taxellj tbatbne of the :defendants became purchaser of said property. at theprobilte slilerand a deed waamade to him in violation (if tbe o'blili1;a:tionot' 'saidtil'st contract with complainant's grantor,. Il.nd in :violation of article 1, § 10), of the constitution of the United States" and of sections: 1851 and 1891 j Rev. St. U. S.,which make the provi· sionsof thecbnstitutionapplicahle to the territoriesithat by the law in force at the ,time complainant's 'tax deed Was aoquired the tax deed was made pret5Util\ptiva evidence' (lfthetegularityof! alHormer proceedings, and suit the recovery of the' property was prohibited after the expirationof three y.ears from the date of recording of'the deed, except in cases where ,tpe'ltaxhad beeh paid: calla thelarid redeemed; that tbedefendants' had notice:ofthe complainant!s 'right, Rnd tbeirlidministratotl's deed was procured,.in ,pur.suance of a conspiracy to deprive him of I!a,idproperty, and said property is worth $8,000. The prayer of the bill is that tho