PATTERSON V.
WOLD.
791
to theirs, and while he denies knowledge of any intentional misconduct on the part of his brother, while he affirms ignorance of his financial condition until a. few days prior to the collapse, yet it is difficult to believe that, situated as he was in the store, a witness of what was going on, and taking such part as he did in the business, he did not know and was not in fact privy to the whole scheme. I confess that, upon this matter, I have seriousdj>ubts. The testimony is not clear and satisfactory, yet bringing all things to the test of commonhutnan experience, it seems to me ibnust be held that he was cognizant of, and privy to, the wrongful scheme of his. brc;>ther. Some way and some where within the short time of hbout 10 weeks, nearly a hundred thousand dollars had .disappeared. . Can it be that Morris Sloman is the only one who knew of or accomplished such disappearance.. I think not. Web v. Armiiltead, 26 Fed. Rep·.70jKrippendorjv. Hyde, 28 Fed. Rep. 788. My conclusion is tnat Samuel A. Sloman is not entitled to preference the general creditors. .A decree will therefore or protection, as be entered, securing the other'complainants in their preference, and directing tl;1at: they be first paid out of the fundaon hand.. The matter ·will be referred to a master to report'what each one has paid. and when, and on the coming in of that .report, a final decree will be entered.
PATTERSON ".WOLD
et al.·
(Uircuit Uo'Urt,D·
January 14, 1888.)
A I'eceivet of an insolvent filed a bill to set aside a deed from the insolvent to his Bon, while largely indebted. but before insolvency proceedings. and a mortgage given by the B<m certaIn. creditors of his tather, to seCl,1re their debts, alleging the deed to be wi.thout con.sideration, and the mortgages faud· ulent preferences. Judgment was rendered for defendants. Held.·a bar to a second bill by him alleging that the son \Va8a creditor of the father, and that the.conveyance to him was a fraudulent preference. and the subsequent mortglj.ge therefore void. f.
In Equity. Bill to set 'aside deed. . ArtburE. Patterson, as the receiver of the estate of B. S. Wold, in.solvent, filed a bill to setaside a deed made by him, making Stephen John Bell & Co. and others, defendants. S. Cooley, Aker8.& Coole1J, for complainant.: Henry O. James and Henderson, Hurd & Daniela, for defendants. BREWER,J. This. ease is submitted on. ,the plea of a former adjudication. TheJacts are Prior to December 8, 1883, defendant Boson . S. Wold was a merchant, doing bllsiness in the county of Roqk, in this state. He was then latp;ely indebted. He had become entitled to the conveyance . of ·atract of land· from the railroad company, defendant.
792
FEDERAL REPORTER.
,Instead .of taking the deed to himself, he caused itto be made to his son, $. Wol,d, the son mortgaged the land to his codefendants, Pieckenbrock, Bell & Co., tq secure debts of B. S. Wold to them. Subsequently ,to these transactions, insolvency proceedings were instituted, under the laws of the state, against B. S. Wold, and complainant was duly ,appointed receiver. He then commenced an action to recover thEl' land fOf the estate of the insolvent, and,to have the mortgage declare,d I)qll ,and void. ,That action WIlS tried and judgment rendered ,'l.'bereupollhe filed this bill, seeking the same relief. The bills of complaint in tb,e two cases are alike in alleging the insolvency proceedings,: the title of complainant, B. S. ,Wold's right to a conveyance from the railroad company, the conveyance to the 80n, and the mortgages by him to eecU1:e his indebtedness. The differences between the two bills are thel;le: In the first bill it was alleged that.the oonveyance to the son was'withqut consideration passed to the father, the ,insolvent, and was, tlJ,erefore, fraudulent and void as aga,inst ,the creditors of the i))solvent;that the mortgages bytbe son to under t4e insolvent the father's cred,itors were,:fraudulent Jaw,andweretaken by, the,credi.tors when they hlJ,d reasonable grounds to believe :tbat,Jbe .debtor was insolvent. Ip. the bill it is alleged that the son was a creditor of the father to the amount of about $1,200, and that the land was conveyed to the son in payment of this debt; that this was ,a fraudulent preference under the statute, and therefore void; and, being void as to him, the mortgages given by him were also void. Such are the differences between the two cases, alld the question is whether the former judgment is' a bar to the present suit. The question under what circumstances a former judgment is a bar to a later action, has been, of late years,carefully considered by the supreme court of the United States in several cases, and the rules controlling clearly stated. In re Ohiles,22 WaU.157; Oromwell v.(JQunty of Sac, 94 U. S. 352; Que v. Beauregard, lQ1 U. S. 688; Stout v. 'Lye, 103 U',S. 71. In the case of 94 U. S., Il'iJ,pra, the court thus states the rule which is invoked by the defendant in the present case: ..In considering the operatiotl of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demacnd, and its effect as an estoppel in another action, between the Illlorpepattiell, different.claim or cause of action. In the former case the judgement, if'l"epdered upon the merits, constitutes an absolute bar to a subaction·. ,It is a to the claim or demand in controversy, conclUding parties, and those in privity with them, not only as to every matter which was offered and received to sustain-or defeat the claim ordemand; but as to any otheradmissiblem{:j,tter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is c011clusiYe as to, tpe ya1i,dity pf the instrument, and the amount due upo;n it, although it be sUQsequent1yaIleged defepses actually existed, of which' no 'Pl'oof was offered; such as forgery, want otconsidel'ation, or payment. ,Ifsllch defenses were not pl'esentedat the action, and by , competent evid'ence, the subsequent allegation of their,existence is of no legal consequence·. The judgment is as conclusive,so proceedings at
PA'l'rERSON V. WOLD.
793
law are concerned, as though the defenses never existed. The language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate when applied to the demand or claim in controversy.. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties. in proceedings at law, upon any ground whatever." this rule; if the claim or cause of action in the two cases be the same, the former judgment is a bar, although the grounds of recovery may be different. Now, what. is the cause of action in each case? Clearly, it is the alleged right of the complainant to have this land for the benefit of his estate, free'of all incumbrances, and the denial of such right by the defendants. Perhaps the most philosophical, as well as the hest, analysis of the elements which constitute a cause of action, as the phrase is used in the law,is to be found in Pomeroy's Remedies and Remedial Rights. See paragraph 3, c. 3, and also section 518, and following. In section 519 he expresses himself in this language: "The' cause of action,' therefore, must always consist of two factors,-(1) the plaintiff's primary right, and the defendant's corresponding primary duty, whatever be the subject to which they relate, person, character. property, or contract; and (2fthe delict, or wrongful act or omission of the defendant, by which the primary right and duty have been violated. Every action, when analyzed, will befound to contain these two separate and distinct elements, and. in combination, they constitute the ·cause of action.'" Now, what is the plaintifrs primary right as alleged in these cases? Obviously, in each the flame,-the right to have the land; and the defendant's corresponding primary duty is to let him have the land; and the defendant's delict or wrongful act is the failure to let him have the land. These exist in each case, and in each case alike. It is true, the basis of complainant's primary right is, as alleged, different in one case from that in the other; but this is mere difference, in the language of the supreme court, in "the grounds of recovery." The mere fact thllt different testimony would be n!"lcessary to sustain the different allegations in the two bills does not, of itself, necessarily make two distinct of action. Take this illustration: Suppose a party brings suit to recover the possession of teal estate, and' alleges in his complaint that he is owner by virtue of a patent from the government. After a judgment against him, would he be permitted to maintain a second action, alleging that he was owner by virtue of certain tax proceedings, or by virtue of a judicial sale? Yet different testimony would be required to sustain his allegations in the two actions. In both of such actions plaintiff's primary right, that of possession based on ownership, would be the same, the only difference being in the grounds of recovery. All the grounds of recovery, all the bases of plaintiff's title, must be presented in the first are lost to him forever; exactly the same as when a party, action, or sued upon a note, and having several defenses, pleads onlyane,-the balance areas though they never existed. The party who has his day in court must make his entire showing. He cannot support a claim or a defense in different actions on different grounds.
794
FEDERAL,
REPORTER.,
"The case of the lVctteh 00. v. Meyer,29 Fed. Rep. 225, decided by this coUrt, contains nothing, contradictory to these views. There, in the first inl>tance" the plaintiff commenced an acti(')n of attachment, alleging fraudulent conveyances by the defendant. Succeeding in the action, it filed a bill to subject certain rea,l estate, transferred by one conveyance, to the satisfaction of its judgment. In that action the conveyance was held valid, and a decree rendered against the plaintiff. Thereafter it filed a second bill, allegiJ.'1g that all the conveyances made by the defendant were part and parcel oia voluntary general assignment, under the laws of the state of Missouri, and it was 'entitled to havtl all the property sold, and distributed among all the breditors pro ra,ti:i'·.' ,The difference between the two causes of ll,ction is obvious. In the first, plaintiff's primary right, as alleged, was to have the specific property wholly appropriated to the payment of. itsc1aims bv reason of its attachment, levy, and the fraudulen,! In the second , its priJ,nary right, as alleged, was to have all the property conveyed by the defendant distributed among all the creditors jYt'orata. . . Myconclpsi<>D, the former judgment is a bar to the present. "the plea must tberefQre be and the bill dismissed. It is unneCesaary to take any n.otice,of the demurrer; for, if the bill not be sustained upon. the merits, any inquiry as· to the .sufficiency of the description in the oonveJ'ance of the land would be superfluous.
,
BERXLlllYf1. UNION PAC.
Ry. Co.
(Olr;cuit Oourt,!'IJ.OO7qradO, January 18, 1888.) DJlJIlD,:",UPONOONDITION-BREACH-REVERBION.
Where land is conveyed u,p0n consideration that a railroad company fs to' "locate. erect. all!! maintain upon the land its deJlot, and in pursuance of the conveyance 'the depot is erected and tnaintaineil for 11 years, and theni. removed, theJand does not revert. _ It is only a failure of part of t,heeonsideration, entitling the grantor, to his action at law therefor. _
InEquity. On demurrer to bill. -Action by Berkley, plaintiff, against the Union Pacific Railway Company, defendant, to recover possessionoiland. BrcnIJ'M &: Putnam, for TeUer ¢Orahood, for defendant. -BREWER, J. This isa. bill in equity to which a demurrer bas been filed, and the question submitted is on that demurrer. The, bill alleges that ancestor was .the 9wner of a tract of land in the of Boulder; which had been-laid off into lots and blocks; that, in order toenljlancethe value of thatladditibn, he conveyed a tract of a few acres to the Denver. City & Bouldel· Railroad Company, of which