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
was plaintiff, directed to the sheriff of that county. e., the defendant .. Perk!ns, to execute. The jury found the issue joined upon this plea for for the plaintiff. The defendants then moved to dismiss the want of jurisdiction after verdict and before judgment. Held, that in this case the court could have taken jurisdiction of the parties, as the citizenship was such as to give it such jurisdiction of them, and it would only refrain from taking jurisdiction of the subject-matter by reason of comity towards another court of concurrent jurisdiction. Held, !urthfYl', that neither of the parties to assert the right of the state court to keep possession of the property disputed the jurisdiction of this court until after the trial on the merits. Then it was too late to raise the poiuts. .
, Ela &: Parker, for plaintiff. Connelly &: McNeal, Ira O. Wilkinson, and Frank Baker, for defendant. BLODGETT, D. J. This is ·an action of replevin for the recovery of a valuable horse, alleged to have been unjustly taken and detained from the plaintiff by the defendants. Four pleas were interposed: First, non cepit; second, non detinet; third, property in Robert I. Lee and not in the said plaintiff; fourth, that the defendant Perkins was at the time when, etc., sheriff of Rock Island county, in the state of Illinois, duly qualified and acting as such; that on the fourth day of September, 1878, the Topeka National Bank, of Topeka, Kansas, sued out of the circuit court of said county of Rock Island its writ of attachment of that date against one Robert L Lee for the sum of $3,285.76, with interest from the first day of December, 1876, and caused the same to be directed to the sheriff of said county to execute, in and by which writ the sheriff was commanded to attach so much of the estate, real and I1ersonal, of the said Robert I. Lee, to be found in his county, as should be sufficient to satisfy the indebtedness mentioned in the writ, and such estate so attached in his hands to secure, so as to provide that the same might be liable for the proceedings thereupon according to law, which writ was made returnable on the first Monday of January next after the date thereof; and that such writ came duly into the hands of defendant Perkins, as such sheriff, to execute, and was by him, on the day of the date
GILMAN V. PERKINS.
thereof, duly executed by levying upon and taking into his possession the horse in question; and that the defendant Perkins held the horse in question at the time when, etc., by virtue of the said attachment and levy. . It was further· averred that the horse, at the time when the .same was levied upon by virtue of the writ of attachment by defendant as aforesaid, was, and is, the property of the said Robert 1. Lee, and not the property of the plaintiff; and that the said horse was properly subject to be levied upon and taken by virtue of the said writ of attachment as aforesaid. Issue was joined upon these pleas, and a trial had before a jury, in which the main question made upon the proof was as to the title of said Robert 1. Lee to the hOl'se,-the defendants contending that plaintiff's alleged title was fraudulent as against the creditors of Lee, and that the plilrintiff could not, under the law and facts in the case, hold such horse as against the said Topeka National a creditor of Lee. The jury, by their verdict,found the issues for the plaintiff, and defendants now move-First, to dismiss the cause for want of jurisdiction after verdict and before judgment; second, for a new trial. The motion to dismiss for of jurisdiction is upon the ground that the property in question, at the time it was taken by the marshal of this court under its replevin writ, was in the custody of the sheriff of Rock Island county, under the writ of attachment issued out of the circuit court of that county against the property of Robert 1. Lee, aod that it was therefore in the custody of the law of said state' court, and could not be taken frum said court by the process of any other court of concurrent jurisdiction. In support of this position the defendant relies mainly upon the decision of the supreme court of the United States in Freeman v. Howe, 24 How. 450. The only question in my mind is whether the defendants, after having tried this case upon its merits, shall now, after a verdict and practically on a motion for a new trial, be heard to allege want of jurisdiction in this court. If, in the first instance, or at any time before a trial upon
the the defendants submitted to this court that the property in question was in the custody of the state court, and that. the controversy ownership of it, which was initiated by the levy of the writ of attachment upon it as the property of Lee, could and should properly be remitted to that court for determination, this court, in the light of Free. ma,n v. Howe, and other cases in the supreme court of the United States involving the same principle, would undoubtedly have dismissed the cause and returned the property to the officers of the state court. The defendants might with propriety have said to this' court: "This property is alleged to be the property of Robert,I. Lee. It is seized as such; it is in the possession of the state court as such. The law of the state of Illinois (chapter 11, § 29, Rev. St. of Illinois) expressly provides that any third person claiming the property attached, as this . property has been, can interplead and protect his own title; and therefore this court ought not to take from the state court the controversy of which it had properly acquired jurisaiction." But instead of doing this the de· fend!1'nts plead to the merits, and try the case upon the merits; challenge the validity of plaintiff's title, charge that plaintiff's title is fraudulent as against the attaching credo itor of Lee, and only after their defeat by the jury upon that issue do they raise the qnestion of jurisdiction. In the case of Freeman v. Howe the marshal of the United States had levied a writ of attachment upon certain cars as the property of the railroad company, the defendant in the attachment. A mortgagee of the railroad company brought replevin in the state court, and the supreme court of the . United States in that case held that the possession of the marshal could not be interfered with by the process of the state court. This case is not strictly analogous in its facts to that. Here the attachment was by the officers of the state court, and the replevin was from the federal court. In Freeman v. Howe the controversy in regard to the title to this property could not have been removed from the federal into the state
eourt, but in this case it might have been removed from the state to the federal court. If the plaintiff in this replevin suit had interpleaded under the statute ,of Illinois in the original attachment suit, he undoubtedly ooulci, under theaot of 1875 in regard to the removal of oases from the state to the federal courts, have removed the controversy between himself and the sheriff, as to the sheriff's right to attach this property as the property of Lee, from the state into the federal court; and ought not this court to presume that the defendants acted in this case upon the assumption that the eontroversy was one which might, in some form, be properly taken from the state into the federal court, and therefore waived all question as to the manner in which it was so brought before tlie federal court, and tried it here upon its merits, in the first instance, on the ground that he knew he might ultimately be compelled to do so? It will be noticed that thlil extreme doctrine of Freeman v. Howe is somewhat modHied in its practical application by the subsequent case of Buck v. Oolbath, 3 Wall. 334; .and it is very clear, in the light of the two cases; that the supreme court does not now hold to the extreme doctrine that the controversy in regard to the ownership of this property, having originated in the state court, necessarily, under all combination of fact, beheld and determined there, and there alone. In this case the court could have taken jurisdiction of the parties, as the citizenship was such as to give it such jurisdiction of them, and it would only refrain from taking jurisdiation of the subject-matter by reason of comity towards another court of concurrent jurisdiction. The parties to assert the right of the state court to keep possession of the property were either the officers representing that court or the attaching creditor who had selected that forum. But neither of those parties disputed the jurisdiction of this court, on the ground that it belonged for any reason to the state court, until after the trial on the merits, and then, I think, it was too late to raise the point. It seems to me that these defendants may be justly charged with having been willing
to experiment with this conrt; and, after having had a trial and being defeated, they are now disposed to fall back upon a point which they ought to have raised in the first instance. The motion to dismiss for want of jurisdiction is therefore overruled.
FIRST NAT. BANK OF OSWEGO 'V.
(Oircuit Oourt, N. D. New York. July 9,1881.)
1. MUNICIPAL BONDS-AuTHORITy-RATIFICATION.
Whether the commissioners of the defendant complied with the statutory requirements in issuing its bonds or not, the defendant ratified their act by paying interest for six or seven years upon the bonds, and retaining the stock of the railroad company received in exchange for the bonds.
SAME-SAME-REcITALB-BoNA FIDE PURCHASER.
Whether the recital of the bonds, tIiat theywel'e issued" by virtue of an act of the legislature of New York, entitled," etc., warranted a purchaser in assuming without examination that the agents of the defendant had complied with the statutory requirements in issuing the bonds, query.
Rhodes et Richardson, for plaintiff. C. H. Roys, for defendant.
WALLACE, D. J. A question is made in this case whether the recitals upon the face of the bonds issued in the name of the defendant are such as to authorize a purchaser to assume that the agents of the defendant had complied with the statutory requirements in issuing the bonds. If they were not sufficient, it was incumbent upon a pu,rchaser to examine into the preliminary proceedings in order to ascertain whether or not the commissioners had observed the conditions which the statute imposed upon their action. The recital upon the face of the bonds is that they were issued "by virtue of an act of the legislature of the state of New York, entitled," etc. . In Pompton v. Cooper Union, 101 U. S. 196, the supreme· court of the United States held that where the bonds recited.