JOHNSON V. RICHMOND BEACH IMP. CO.
sisted upon is that the petitioner has not adopted the proper method of proceeding to obtain the aid of the court as prayed for. The argument is that the proper proceeding is by an original dependent bill. The allegations which are made in the original petition and in the two amended petitions, taken oogether, are unquestionably sufficient to raise the question of which the petitioner seeks a determination. It is conceded by counsel presenting the demurrer that the relief sought should be granted in this court, and, as I understand it, it is even conceded that it should be done in connection with the suits here 00 foreclose the mortgages on the railroad, and in which suits the intervention is filed. The allegation and the prayer of the petition being sufficient, and the proceeding being in this court, where the bill to foreclose the mortgage was pending, and where the proceeds of the sale of the property must be distributed, the court will not reject it, even if it should appear that the petitioner has improperly named it; and this is not at all clear. The question of construction here raised involves the right of certain bonds to participate in the fund which will be derived from the sale of the Marietta & North Georgia Railway, and that fund must be distributed in this court, and by the proceeding in which the intervention is filed. The intervention would seem to be the proper remedy. A dependent bill need contain nothing. more than is contained in this petition here and the two amendments, except the prayer for process and service. While the demurrer does not raise the question, it is suggested in argument that there should be service on the railroad company, and the railway company, and, as I understand it, counsel for petitioner, agree to the propriety, if not the necessity, of this, and propose to tb:e court to have such service made before proceeding further. The demurrer is overruled.
JOHNSON v. RICHMOND BEACH IMP. CO. (Circuit Court, D. Washington, N. D. August 31, 1894.)
MORTGAGE OF COMMUNITY PROPERTy-FORECLOSURE-JURISDICTION OF PARTIES -SUMMONS-SERVICE ON ABSENT WIFE. '
A husband and wife removed from their community land, on which they had given a mortgage, to another state, where they separated. The wife remained out of the state, but the husband returned to the land. Afterwards there was a decree foreclosing the mortgage, and the return of the sheritr showed that service of the summons was made on the husband personally, and on the wife by delivering a copy to the husband at her usual place of abode. Held, that the court had jurisdiction of the parties, and such decree was binding on the wife.
This WM an action by Maria E. Johnson against the Richmond Beach Improvement Company to redeem land sold on foreclosure of a mortgage. Heard on demurrer to the amended complaint. Demurrer sustained. Strudwick & Peters, for complainant. Burke, Shepard & Woods and Thomas B. Hardin, for defendant.
FEDERAL REPQRTER t YOlo
was argued and on the Thisis a suit a woman to redeem from a mortgage certain real estate, was acquired wbile she and her husbl,lD.cl were living together in this "tate, when it waS,a territory, apd which, under the laws of the territory, became their community property.,. The mortgage was given for part of the purchase money. It apPeal'/il by the bill of complaint that after the couple had taken possession of the land,and, lived upon it for a'Ume, and made some imprQYements UPOJ! it, they changed their residence and left the territory. :After going away, they separated, and the husband retumed;and when he, W,aa within the territory and had a residence haYing made .iPl ,payment of the amount secure4 by the mortgage,,:a foreclosure auit was brought in the district 'court of the district of Washington territory. This" her lJ-usband were both named as defendants in tJw;t foreclosure sui,t. A was served on the husband person,ally. summons'Yas made on this complainant a copy ,to: (llhe' husb3,.nd at her ,usuaJ place of abode, as the qertifies...' ohnsOOl,:di(fl D,Qt appear in the case, and a de:cre!'l of foreclosure entered, allQ., the property sold. The time for redemption expired., The sale was continued, and a sheriff's deed purphaser. Several years after :the time for redemption had expired, this suit was brought in this court, by compllj.inant, to: ,fedeemthe property from the mortgage, ,she or, offering ,to. pay the full amount of the mortgage and illterest. ;After the sale of the property, a divorce was granted in; 'pakota, ,tbe Buitof the ,lJ-usba:nd. Plaintiff is now ,an ,She cll;cims that, by reason ,of hel" commumty interest lD the she had right to redeem; that she is not bound by the foreclosure decree, because the service of process was not a legal service, as the place at which the service was made was not her actual place of abode at that time. On the face of the service was regular and legal, and the court appeared, tohaYie acquired jurisdiction of all the parties defendant; and, to upset that judicial sale, it is necessary for the court' to admit evidence aliunde ,to impeach the validity of the record of a COlln of general and superior jurisdiction. The court is not inclined to permit that to be done, unless the equity of the plaintiff is sO atrong, and her legal right to do this, is so clear, ,as to admit or no doubt. All,the people have an interest in preserving :the verity of Pllblic records, and upholding titles acquired by judicial sales. It is subversive of justice to permit titles in which no defect can be discovered by an· inspection of the record to be ripped up and by long. subsequent. It is my the olsemce, as,to the fact of the place where was mall# place of abode of the defendant,'is not conchlsi'Veon the parties.·" That is a matter of which he cannot have auch personal knowledge as to be able to give such evidence in his certificate that it· ought to be regaMed as conclusivejbut I' think the intent of the law is fulfilled when the
return of the sheriff is so far true that the place at which service was made upon an absent defendant is the legal place of abode; and that is the case here. The person to whom the papers were delivered for this complainant was her husband. He was the person to whom the title to this property had been conveyed, and in whose name it stood upon the record. He was v,ested by the law of Washington territory with the control and management of that community property. He had a right to represent, not only himself, but his wife and the community, in the.management of that property; and parties having a lien upon the property, and a right to bring a foreclosure suit, could not be prevented from exercising that right by the absence of the wife from the territory, or her concealment, so that personal service could not be made on her. Now, the very best that could be done in compliance with the laws of Washington territory was to make the service on her at her place of abode. If she was not actually there, although there had been a disruption of the family, it was still, until a legal sepa1"ation, her lawful place of abode, because a wife's legal home is with her husband. It is my opinion, therefore, that the service was lawful, and the court which rendered this decree had jurisdiction of the parties, and the decree . is binding on both of them. It is my opinion, also, that the decree is binding upon this complainant, upon the principle that not only parties, but privies, are bound by the judgments of courts. This woman had no separate, independent title to this property; that Is, no title independent of that of her husband. Whatever interest she had in this property was by virtue of being the wife of her husband, in whom the legal title vested. Her interest in the property is not by any public record made to appear. Therefore its existence can only be established by proof of her marriage. There is no other way in which she can connect herself with this title so as to establish any interest in it whatever. She is therefore claiming her husband, and, as I have already recited, the husband was, tinder the community property laws, manager or trustee of this community property at the time the foreclosure suit was commenced and prosecuted. He was the repr,esentative of himself and the community and his wife. All the interests that were involved in that COllimunity title were represented by the husband, and whatever operated to divest him of the title divested him of that title which hI:' held in his capacity as trustee, and carried with it all interests of whomsoever he was lawfully authorized to represent in that calle. In the case of Litchfield v. Goodnow's Adm'r, 123 U. S. 549-551, 8 Sup. Ct. 210, the supreme court states the rule applicable to this class of cases as follows:
"Under the term 'parties,' in this connection, the law includes all who are directly Interested In the subject-matter, and had a right to make a defense, or to control the proceedings, and to appeal from the judgment. This right involves, also, the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause. But, to give full effect to the principle by which parties are held bound by a judgment; all persons who are represented by the parties, and clalm under them, or In privity with them, are equally by the same proceedings. We have already seen that the term
'. FEDERAL REPORTER,
'prJvlty' ":denGtes mutual or successive. relationship to the same rights ot . The ground, therefore, upon which persons standing in this relation to the iltigating party ate bound by the proceedings to which he WaB a party. is that they are identified with him in interest; and, whenever this identity is founa to eXist, all are alike concluded. Hence all privies, whether in estate, in blood,' or in law, are estoJ?ped from litigating that which is conclusive on him witli whom they are in privity. The correctness of this statement haB been'oftEm affirmed by this court (Lovejoy v. Murray, 3 Wall. 1-19. and Robbins v; Chicago, 4 Wall. 657-673); and the principle has been recognized in many ,eases. Indeed, it Is elementary. Hale v. Finch, 104 U. S. 261-265; Brooklyn City & N. R. Co. v. National Bank. 102 U. S. 14-22; Butterfield v. Smith, 101 U. S. 570."
See,also, Plumb v. Goodnow's Adm'r, 123 U. S. 560, 8 Sup.
In the argument a good deal of stress was laid upon the point that the right of the complainant in this case became extinguished, and she is estopped by her own laches, and it is also contended that the suit is barred by the statute of limitations of this state. I disagree with counsel for the defendants as to both of these propositions. The time is something less than seven years from the date of the sheriff's deed until the bringing of this suit, which is less thun tM time allowed by the statute of limitations for bringing an action to recover real estate; and there is nothing on the face of the record to show me that there has been any such change in the state of the title, or the situation of the parties defendant, as to make it appear that they have been prejudiced by the delay. Now, where there is no prejudice by the delay, I 'am not willing to recognize any period less than the time allowed lior instituting a suit tor recovering real estate to bar a right in -equity on the ground of laches. The statute of limitati.ons of this. state is not binding upon this court, as a court of equity; and, if it were, the period 6f time allowed by the statute has not run. The statute of limitations would ,Mt commence to run against the right to redeem until there had been an offer to redeem and a refusal, and, according to the bill of complaint, it is less than two years since the defendants. in this case refused to consent to a redemption of the property from the mortgage. The other points discussed on the oral argument are so interwoven and involved in the main questions as to the validity of the semce,.and the binding effect of the judgment· of the district court, that it Is unnecessary for me to make any remarks respecting the same. The demurrer to the bill is sustained.
SUTTON :M:ANUF'G CO,. v. HUTCHINSON. (Circuit Court of Appeals,SeventhCircult. 1, 1894.) No. 159.
CORPORA,TIONS-INSOLVENCy-SALE Oll' ASSETS.
Althoug.h the property of a private corporation is, not charged by law with any direct trust or specific lien in favor of general credItors, and .,Itbough such. a corporation, so lop.g liB it is In the active exercise of its . functions, may, If not restrained by lUI charter or by statute, exercise as