NEWMAN
V.
WESTCOTT.
49
NEWMAN v. WESTCOTT and another. (Oircuit Oourt, N. D. IlYIlJa, lv. D. Octob,er Term, 1886.) 1. EQIDTY-REYEDY AT LAW-LEGAL TITLE-ACTUAL POSSESSION-EJECTMENT.
Where a person holding the legal title to realty desires to assert that title, and to dispossess another party, the latter being in actual possession, there exists adeciuate legal remedy for the wrong, and the action must be at law.
an
2.
ESTATE-ANNUAL VALUE-TAXES ON-ACCOUNTIN.G·
. , Where a person has\!elln dispossessed onand, question of the amou.nt of it!!, I1nnqal value, and of tb,e amount of taxes pald on it, can be settled In an actiOn at law, 'and no necessity exists for going into a eourt of equity.for an ,Rceouutingof the same. SAME-DEMURRER.,-LEGAL TITLE-EJECTMENT-DISMISSAL.,
8.
Where a bill is brought to decide conflicting titles, and to remove clouds from the legal title claimed by complainant, and it appears from the llill that complliinant holds the'legal title, and is seeking to obtain possession of the realty, tlleproceeding, in s\l.bstance, is in the nature of ejectment, and the aeourt of equity, ul,> j1:!risdictio.n thereof, will sustain a deniul'rer filed by the defendant,and dIsmISS the bIll. '
, to recover certain real estate, and to have declared 'Void betta-in tax deMs, etc. Dismissed on demurrer filed by defend· ants.' facts are stated in tbe opinion. . Rickel « Bull, for complainant. l1atch, Oonnor <i; for defendants. SIDRAS, J. In tbe billftled herein complainant avers that he is the .owner, and seized of the fee-simple title of. certain real estate situated in Sioux county, Iowa, and is entitled to the possession thereof; that the defendants claim some interest therein adverse to complainant, basing such claim upon certain tax deeds executed in 1872; that the defendant Westcott is in the actual possession of the property j that the tax deeds under which defendants claim are wholly void ,for various reaSODS set fortb in the bill; that the defendant Westcott has received the rents and profits of the land for the last three years, the same being of the valne of $450; that complainant is readya,nd willing to pay all legal taxes that may have been paid upon saJd premises by the defendants or their grantors, upon their paying and accounting to him for the rents and profits; and complainant prays that the title to the realty, and the right to possession ,thereof, be decreed to complainant; that the clouds created by the tax deeds be removed; that an accounting be httd between complainant and defendants of the taxes paid, and rents and profits received, ,and ju;dgment be rendered for tbe balance ther!lof. To this bill the Lindsey answers, averring that hebasnow no interest in realty, hlloving sold and conveyed sltid premises by warranty dee<i co,defenda.nt thirteenth day of June, 18.84. ,Thede. Jen4an.t lWeBtcott <lemurato tue on the ground that., the facts v.29F.no.2-4 .
FEDERAL REPORTER.
averred in the bill do not constitute a cause cognizable in a court of equity, tht1re being a plain, speedy, and adequate remedy at law. In the case of Whitehead v. Entwhistle, 27 Fed. Rep. 778, this court hadocllll.sion to review the authorities upon this eubject, and it is not necessary to do more than to refer to that case, and the authorities therein cited"upon the general questions presented by the demurrer.' . .. It is too well settled to need argument, or a citation of authorities, that, in tile courts of the United: States, a bill in equity cannot be maintained. ilthere eJt.ists a plain,speedy, and adequate remedy at lawapplic/l.ble,tothe facta of the particularcass, ,and that where a person holding the legal title to realty desires to assert that title, and to dispossess another party, the latter being in actualposaession, the ' ", · ' . action; tDustbe at law. It it urged, however, on behalf of complainant, that in this cause a court of 'equity has jurisdiction, because anacconnting of the rents and profits, and of the taxes paid, is,prayed.. action at law damages are recoverable, and the measure would ordinarily be the pf the IOtDd·.· is the. averments.of the annual' bill which.shows, that ,the ,legal right to recover damages is not a wholly adequate remedy. The the value of the land, and the amount of })y,the defendants, no can be easily settled in the actiqn ,at, law; andtliat, necessity exists for a'courtof equity for accounting. It is further urged that this su;it is ill the nature 0(0. bill to redeem it'; beingbronght the land fro'm.wfiatever undet provisions of section 898 afthe Code of Iowa, which enacts that "Any person entitled to redeem lands sold for taxes after deliveryof the del;ldsh8.ll redeem the'same by ali equitable actic!lD: ina courfof This se.ction is part Of the chapter of the'Oode providing for'tlle collection ioftaxes, and provideaamethod of redeeminglanda sold fortaxes,after the :execution of deed, by anypal'ties .who, under such circumstances,may be entitled';to redeem. An examination of the bill filed in this cause shows that it is not based upon this section. It ill bill to quiet· title, and it avers, not that by reason of some fact stated the complainant is entitled to redeem the·landa from the tax sales, but the pretended tax deeds are wholly void for fraud; that the taxes were Dever'levied; and that, when it is claimed the same were levied, the county was ized and uninhabited. Thepra:rer 'is,L:.not to be allowed. to redeem, but thil.tthe clouds caused bytpe alleged tax deeds be wholly removed, and that complainant be decreed to be the owner and entitled to the possession of the land.:' The 'mere fact that in ]!luch a bill 'offerS- ;to pay any and alUlixes legally as:. sessed upon the 'lahdsdoes'n'ot bha.nge the character of the bill, and It remains a make the proceeding merely a proceeding 'to bill brdugHtto decide' adverse title'S, 'a'rid torernove elouda from the
WIGGINS V. BETHUNE;
51
legal title claimed by complainant; and as it &ppears from the bill that complainant holds the legal title, and is .seeking to obtain possession of the realty, relying solely upon such legal tHle, it follows that,'in SUbstance, the ,proceeding is in the nature of ejectment; and, the law affording a speedy and adequate remedy, the court, as a court of equity, has not jurisdiction. Demurrer must therefore be sustained.
'WlGGINS,
(otherwise known a's "Blind Tom, ")by His Next etc., v. BETHUNE. (dirc'Uit (Jowrt,
E.D.
Virginia.
October 2, 1886.)
'OOtffi'l'S--'FEDERAL JuRJSDICTION""CITIZENSHIP-SUIT BY NEXT FRIEND.
Itn a,l!luit b11Oug1l.t by the next friend of one who is non compo8 mentis, federal jJlrisdiQtion cannot be based on the citizenshil? of the next friend, as he is only a nominal party. HUGHES, J., dissenting, In case the next friend is the real plaintiff. OF LUNATIC-COMMITTEE.
. ,If a committee of one non comp08 changes his residence fiom the state where , h" was appointed. and where the non compllfI also resided, to another state, and takes the latter with him, the latter becomes a resident of the state towhich they remove, and retains such residence after the committee's death, notwithstanding he it! afterwards taken away to his original state, and elsewhere,and another committee is appointed for in such original state; and in alllit in brQught by him against said last-mentioned committee, a citizen of that state, the citizenship of the parties is such as to give' jurisdiction to a federal court.
.
InEquity. Bill for an accounting. Plea of want of jurisdiction. Charity Wiggins, who sues as next friend of Thomas Wiggins, e'Blind Tom,") is a citizen of New York; James N. Bethune, the defendant,QfVirginia. , A.J; Lerche and L. R.Page, for complainant. S. 'Ftrgu8Qn Beach, for defendant. .This is a bill filed by the complainant for an account, to which a: plea of want of jurisdiction has been interposed. The facts, as they appear from the affidavits filed by the parties, and as they have been stated at bar by the respeotive counsel, are these: John G. Bethune, who 8.t the time was a citizetlof Virginia, having Blind,Toroin bis keeping, was, on the twenty-fifth day of July, 1870, by a:probate court of state, appointed Tom's committee, he being found 'non compos mentis. As such committee, Bethune took Tom fI;om place to place, through the various states of the Union, givingmusicail enteft'ailln:ients, so that hawas seldom in Virginia. Finally J'ohn G.Bethllhe changed his place of residence from Viginia to the city of New York, taking Blind Tom with him, andbeca:me a.
