No reason is alleged for the neglect to cancel the stamp; but the bill ascribes two contradictory motives for the omission to duly stamp the conveyance made by said William A. to the Drains: (1) To make the consideration correspond with that in the conveyance frgm J. A. to himself, and to promote the purpose for which it was made-to defraud the creditors of said J. A.; and (2) that an "inadequate" consideration was "expressed" in such conveyance, with intent to· evade the revenue act. The omission to stamp the deed from the first motive, does not render it void. An act done with a purpose to defraud or aid in defrauding the creditors of J. A. is not an act done, sO far as appears, with intent to defraud the government. Nor does it hOw "inadequate" the consideration for the conveyance is, so that the stamp used corresponds with it in amount. The statute does not require a person to dispose of his property for an "adequate" consideration, with aview of enhancing the revenue of the government from that BOurce, b,ut very properly leaves that to be cared for by the selfishness or the cupidity of the party interested. Neither is the allegation upon this point sufficient, although it suggests that the proper one was in the mind of the pleader. The consideration expressed must not only have been inade. quate, but less than the amount actually paid. As section 158 of the stamp act, as amended by the act of March 8, 1865, (18 St. 481,) provides that the title of a purchaser by . deed duly stamped shall not be affected by the'want of a stamp upon the deed of his grantor or predecessor in the interest, the allegation in the bill that the conveyance to said William A. was not duly stamped, is immaterial, so far as these defendants arc concerned. With this demurrer there was also argued and submitted the demurrer of the defendant Jonas Ellensburg to said bill. The case made in the bill against him is this: The defendant Charles Putnam," a grandson of the defendant J. A., and one of the persons to whom said J. A. conveyed a portion of his real property as aforesaid, on January 19, 1879, sold 42 acres of the safue to said Jonas for the sum
GILl\!AN V. PERKINS.
of $320, of which $220, or $245, has been paid, and delivered him possession thereof, with a paper writing in the form of a deed, but without a seal, which has been illegally admitted to record; and the prayer of the bill is that sjtid writing be declared "inferior" to the lien of the plaintiff's judgment, or that said Jonas be required to account to him for the balance due on said purchase. The bill does not allege that J. E. had any notice of the alleged fraudulent character of the conveyance to his grantor, and therefore his purchase in -writing, even if it does not amount to a full and formal conveyance, is good against the plaintiff, except as to the unpaid purcbil.se money. For 'this the plaintiff may, if he makes out his case against Putnam and J. A., have a decree that J. E. pay the unpaid purchase money to. him, and that he ha.ve a lien upon the land to secure the same. Wood v. Mann, 1 Sumn. 507; Flagg v. Mann, 2 Sumn. 563; McNeil v. Magee, 1 Mass. 269; Story,. Eq. Jur; § 64c; § 1503, a, b. The demurrer of Charles and John C. Drain is sustained, and that of Ellensburg is overruled·
GILMAN V. PERKINS
(Circuit Court, No D.llZinoi8. July 16, 1881.)
1. FEDERAL COURT-CmUTY OF, TOWARDS STATE CoURT-WHEN TO,BE TAKEN ADVANTAGE OF. .
To take advantage of the comity which, when certain facta exist, . a federal court will exercise, towards a state court with concurrent, jurisdiction, the point must be reasonably urged. After a trial of the action on its merits it is too late.
BAME-SAME-SAME. . .
An action of replevin was brought in a federal court, against the defendants therein, for the recovery of certain persOnal property. Among the pleas interposed was one reading sUbstalltially as follows: That the defendant Perkins levied upon the property as that of pne Lee, by virtue of a writ of attachment issued out of the circuit cOhrt of Rock Island county;irithe state of Illinois, in a suit ",herein Lee was a defendant, and the Topeka National Bank, of Topeka, Kansasl