DQt be Jll renders it to ;tbeothertWQ in the, l\nd statediIl't!w,eal'ly paft of· this QpmiOD. , ' ; , !', "", ' " " ,; ,, t>bjectionw,the dttQree belpw llfl: the ,at law? and ,this;bi,P. in equity sllonld have, been , III Prete<$v; 00,., 4 App.327, 330, 1 C. C;iA./607, 50 Fed. 67:4; of this court" said: , f , . ·
Jbet'Ween :tlleparties.W it,
: "ltrimy be' true that the·plalntl1fhad aretnedy at Is lj, re.l!lJeAv JJ;1ust 1>11 plaln and adequate, or, ill othe,r praetlcal and as efficlent.tl> the of justice and ltsprompt adminIstration' as the l'emll'dY In Borce's Ex'rsv; Grundy, '3 Pet.' 210, 215; OMI'ichsV'.Spaln;'15"Wan:'211, 228."" ; , .
in .a.nd is The deGree, l>cl.ow enJOl11S ,the ti;tl¢,ill the appellee.. It ,is true jJhe ,acti()n ,of. Imt If! and to the of JustIce as , .,W4af th¢ appellant froIll actlop. eJectIllent, and lmngmg trespass Or another efficient a to hold the s)lield actions at law,as is a final decree,that forey;er ends aUcoJitroversy? MQreover"this objection was not made in thecourtbel()w. TAeappellant inte:rposed no de· She to the plerits,and went to a hearing on bill and answer without Qbjection tliat this suit could not be maintained, because the remedy of the appellee at law WfUl complete. The objecdO,n she 'now makes is' one of 'f#atmay be waived if not made at the thre!!lhold. It is too late to! m.ake it for the first time in the appellate court. Preteca v. Land Grant Co., suprajReynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 4"86; Tylerv. Savage,l43 U. S. 79, 97, 12 Sup. Ct. 340; Hollins v. Iron Co., 1;1. Sup. Ct. 127, 128; Insley v. U. S., 14 Sup. Ct. 158, 159. For t1).e8e ,reasons, the decree below must be JUnrmed, with, costs, and it is so t
is mg <ilf that ,like !-hat,th.'1
MEEK v. SKEEN. (Circuit Court of' Appeals, FlftbCiNuit. February 20, 1894.)
I.' EXlIlCUTION.,....BoNA Fl]):&PURCBASERS-UNBECORD:&D DEED. On a bill to quiet title, complainants were purchasers at executl(ln sale made under a judgment owned by them, while respondent claimed under a prior deed frtim "the' judgment, debtor,· which' was not recorded. The ,:o/1lyevldence as this !;1eeq :was thl;lt complaill" ants, before tile sale, thatl;1e had sold a,l1. his property,. and endeavored to Bettle the jUdgment'for A small .amount; .But he did not tell them to bad sold, nor'dldeomplalnail'tsever hear rel:lpondent'lJ name mentioned in connection witb the land In controversy. Held" that they were of respondent's dE!e4-
Where;uoon the record, a judgment had the unq11alified tee simple in the land, the levy upon 'and sale 'of "all the estate, right, title, and interest" which he had in the land, and the execution of a deed in the 'same terms, vest the same unqualified fee in the purchaser, without regard to a prior unrecorded deed, made by the debtor, of which he had no notice.
Appeal from the Oircuit Oourt of the United States for the North, ern District of Texas. This was a bill to quiet tjtle,filedby Virgil Skeen against James G. ::Meek. There was a decree for complainant, and respondent appeals. D. T. Bomar and J. E. Bomar, for appellant. Seth W. Stewart, for appellee. Before PARDEE and McOORMIOK,Oircuit Judges, and PAR· ' LANGE, District Judge.' McOORMICK, Oircuit Judge. The appellant, James G. Meek, brought against appellee an .action of trespass to try title to 320 acres of land in the possession of appellee, in Wichita county, Tex. The appellee then exhibited his bill, setting up his title, praying that the appellant be enjoined from proceeding with said action at law until, the appellee's rights and equities could be considered and determined; that appellant be required to show cause why a deed he held to appellee's land should not be canceled; and the cloud removed from appellee's title, caused by the record of said deed. The suit proceeded to hearing. On 10th March, 1893, the circuit court rendered its decree in these words:
"This cause this day coiliing on to be heard, came the complainant and respondents, by their respective attorneys, and announced 'Ready for trial;' and the court, having heard the evidence, an'd argument of counsel, and being sufficiently adVised, finds that the land in controversy, to wit: The south half of section No. 39,H. & G. N; R. R. Co., situated in Wichita county, Tex., described by metes and bounds as follows: Beginning at the S. W. corner of section No. 39, H. & G. N. R. R. Co. surveys; thence north 950 varas to a stake in the west boundal'Yline of said survey; thence, east 1,900 varas to a stake in the east boundary lineo! said survey; thence south 950 varas to the southeast corner of said'section No. 39; thence west 1,900 varas, with the south line thereof, to the place of beginning,-was by the state of Texas, on the 14th day of August, 1873, patented to W. W. Purinton; that on the 4th day of October, 1877, a valid judgment was rendered in the district court of Grayson county, Tex., against said W. W. Purinton, in favor of S. D. Cook, for the sum of $1,46.0, besides interest and cost; that a valid execution issued on said jUdgment, and was levied upon the above-described land, as the property of said W. W. Purinton, by the sheriff of Clay county, Tex., to which said county Wichita county was then attached for judicial purposes (said Wichita county, in whIch the land was situated, then being an unorganized county); that said land, in pursuance of said execution and levy, was by said sheritr sold, as provided by law, at the courthouse door of said Clay county, Tex., on the first Tuesday in Ii'ebruary, 1878, the same being the 5th day of said month, and· at which said sale Gunter & Munson, a firm composed of Jot Gunter and W. B. Munson, became the purchasers of said land, and received a deed from the sheriff therefor; that the jUdgment, execution, levy, sale thereunder, and sheriff's deed, were all valid, and in due and legal form. The court further finds that complainant, Virgil Skeen, holds, claims,
and Is In the actual possession ot, said land, under aregular,conseQutive chat, j:fansfers from said &, Munson, and he ariel tlloseunder w1wm have made permQIl.eAt, and valuable improvements on said laillP.. court further finds tlIatQq,the 27th day of October, 1873, said W. said land to Jas. G. Meek, one of herein, b),11) deed was not recorded until the 10th day of September, 1878, after said land had been sold under execution, on the 5th day of February, 1878, as hereinbefore stated. The court further finds that, tlWlsaid G),1oter ()fs\l1d llQld at sheriff's sale as aforesaid, were the owners of said judgment against said Pu,riJ:).ton, upon which atti,le levy and sale, and that neither they, 'nol! 'either iotthem; had, notice 'or ltnOwledge of said unrecorded deed from sllJdUPurhl1lon to said ,MeeII: ,at tileid:ll.te' of the'levy, of said writ, or at the' date of th'e sale thereunder. It is therefore ordered, adjudged, and decreed by the court that complainant's bill be, and the same is hereb;y, sustained, and. that do hav,e . nd recover jU,dgment against said defendant, James G. Meek, a.n.p.,ulliJj.g, and setting at naught the said deed executed by said W. W. Purinton to said Meek on the 27tll,'dlt,y bt:@cWbet,J:87'lilfor the14nd atoresaid, and that the cloud thereby cast upon complainant's title to said, lall.d be, ,and the, same is hereby, removed, and that said complainant be, lUid he is hereby, forever quieted In his title to, and possession and enjoyment of, said land and premand l:J,et,out. ,Itfs further ordered, adjudged, and decreed b;y; t4tl, ;that tll.e, Jlj,W commepced and now' pending on Ilj,W docket of tbts court, wherein said, .. G. :Meek Is plaintiff, and the liJ41\i' cdnrb;laina.nt, Virgii 'defendant" Wherein said tifr seeks to,'recover fllom;the defendant the possession 'of said land and premlsell. be,: and the enjoined, and said JaB. G. p.,;r. his ,attorneys of record in said law actI0Ih they ang ,of thepl ar,ebereby, forever restrainM; /lnd e.njoined, frl>nt the further prosecution of said suit. IUs fUrther ordered, tliat 'said complMnalit do, have and recover of and frOID said defendants all 'costs, bY,tlleIn IntlUEl behalf, Incurred,for which execution l\l:w. the respondent Jas. G. excepts." " ' ,
"The cp-qrt el1l1ea .in rende\-lpg judgment for the complainant herein against thi/'l .fo)lowblg reasons: (1) Because the respondent was slj.own by record, and,wM admitted, to have the legal title to the land in controversY'i,aIl(i the to s,hoiWthat Gunter & Munson, or any one ,theD)., werew,nocent purA:hasersfor value, in good faith. (2) Because,[email protected]
'l'o. taken. The; appelllrtit}'assigns eI'rQl" .'. fOllows: as' : ,. .' ' ' ,.': i' " ; ' ' ',;, n
t ;;: ·
MEEK tI. SKEEN.
Gunter & Munson tooK as creditors of W. W. Purinton, and, if their execution was levied on the land granted to him by the state before his deed to Meek was recorded, they acquired by their subsequent purchase the fee in the land granted to him by the state, unless it be shown that they, or one of them, had actual notice of the. sale to Meek, or had notice of facts that would have caused a prudent man to make such inquiries as would have resulted in obtaining the knowledge that Purinton had sold the land to Meek; and it would seem that, in the case of creditors, the burden of proving this notice is on the party clainiing under this unrecorded deed. Grace v. Wade, 45 Tex. 522; Grimes v. Hobson, 46 Tex. 416; Parker v.Coop, 60 Tex. 111. Grant that appellee, by the allegations of his bill, assumed the burden of showing that Gunter & Munson did not have such notice. The circllit court, on the evidence, has found that, at the date of the levy and sale, Gunter & Munson, nor either of them, had notice or knowledge of the unrecorded deed. We consider the proof sustains this finding. The bill does not wai"te an answer under oath. The answer of the respondents D. T. Bomar and J. E. Bomar is not under oath; The answer of the appellant, James G. Meek, is sworn to by his solicitor. It does charge "that the said Gunter & Munson had actual notice of the claim of this defendant upon said land, or such notice as to put them on inquiry that would have led to such discovery." This is clearly only the statement of a conclusion from some facts not stated. The testimony of Purinton gives the facts of which the solicitor evidently had information when he prepared the answer, and verified it by his own oath. The judgment against Pm'inton was rendered 4th October, 1877. The witness Purinton sa,ys:
"I saw Jot G"ilnter, and had a conversation with him, shortly after the judgment was obtained, within thirty or sixty days, and prior to the 14th January, 1878 [the date of the levy of the execution], and told him that I had. no property at all, and that I had sold and conveyed all the property 1 :had owned."
Being asked what led to this conversation, he says:
"1 met him, and Jpoke to him about the unjustness of the judgment, and told him that 1 would like to settle it. as I had no' property, but would give a small amount to have the thing settled."
He says that Gunter did not ask him about any lands in Wichita county; that he told Gunter he had sold and conveyed all the land he had owned; that Gunter knew there were other judgments against him; that witness did not mention any particular tract, or mention James G. Meek's name. The witness Jot Gunter testifies that he never had any actual notice of the unrecorded deed, that he never heard Mr. Meek's name mentioned until the interrogatories' were proponnded in; this case. The appellant agrees that Mr. Munson testifies to the same facts as testified to by Jot Gunter. Here is no proof that either Gunter or Munson had actual notice of Meek's deed. Here is full, uncontradicated' proof that neither of them had ever heard Meek's name mentioned till after issue joined in this' suit. The proof shows Purinton, as a debtor claiming to be insol-
rent.l.trxiAgto inducehiB Judgment creditor to settle:withhim at a small .What would his stateinentto Oun,ter cause a to make,lll1ijersuch cmcumstanees1:Wihat inquiry oouJcl lQ;$e that to aiiy: more information? WeD).lllilt b.Qldwith the citetlit oourtthat neither Gunter & Munson, Ilor,eitllerof them, had notice· of Meek's unrecorded deed at the date of th", levy of their execution·.· >Did tlley levy on the land, or only on Puri.l1toi:l1siintere$t in the.lalnd?The land wasshowIl by the reeordstQ :b' unqualified estate in' fee' granted to him by the . ltta.te. Why .lIlhQn,ld:!the slleriffnot levY on the laud? And why:btitcontended thOif he only levied on the interest of Purintoll Because:thesheriff recites in the deed he gave the PUl'CbRlilftl'S.tbat"I,T. (he, sheriff as aforesaid, did, upon the MY of Janl1a11'Yr A. D.1878,levy on and seize all the estate, .title, and. intin'eSt which the said defendant so had in and hereinafter described;" said premises being the land in cootroversy. The words recited above, indicating the levy, are,the very: words which the statute useS'in dedlaringwhat asheriff's dee<Lto land sold under execution shall convey. The deed, in thUI paiticular, is in the form in universal use in Texas in 1878, and now, in COllyeying land sold by sheriffs' under execution. The land the record to be the property of the defendant in the execution, 'ttwas the duty oUhe sheriff to levy on and seize the land. is either destroyed Theexecl1tion, with the sheM's ,return' or lost,"so that it cannot now be found. It is admitted that the sheriff' ha(t a ·valid execution1 and· that 'he leTied it, executed it, and returned it to the court out of which it issued. The presumption is thathelevied it properly. There is nothing in the recitations of his deed to rebut that presumption, or to show in what words he indorsed on the execution.' his levy on the land. If it is assumed that he used the same indorsing his levy op. the execution that are in the reciW:ln the deed, in our view, he levied on the land' as fully as he could have done by any other form of words. the unrecorded deed to :Meek was Against the void. The whole 11ght, title, and interest in the land was Purinton's, and subject to tlle levy. We :find no error in the decree. It is affirmed. '
(Circuit Court, N. D. ,Iowa/Cedar Rapids Division. Marcb 24, 1894.)
NATIONAL BANKS-AsSESSMEN'l'ON STOCK-LIABIJ,ITY OF ESTA1·ES.
The estate of a owner of IllWonaI bank stock Is liable (Rev. § 5152) to an assessment levied a.galnst his executors in consequence of the failure Of .the his dea.th.
SAME-:FEI>ER:ALJURISDICTlON....LEsTATES·IN POSSESSION OF PROBATE COURTS.
A court is I1()t of jurisdlction-oth'erwise vested in itof a.. suit against the executors .of an estate by the fact that the estate is in the possession of a state probate for purposes of administration; and the federal court has jurIsdiction to adjudge whether a liability exIsts, but cannot issue executIon :to enforce the same.