RICH V. BRAY.
273 et ale
RICH
etal. v.
BRAY
(Oircuit Court,w.: D. Mi88ouri, C. D. January 14,1889.) 1. COURTS-FEDERAL JURISDICTION-EQUITy-EXECUTORS AND ADMINISTRATOlUI.
The federal courts will take equity jurisdiction of a bill by non-resident heirs at law against resident heirs to com,pelan accounting of the property of their intestate in the hands of the defendants, and for a distribution of the estate. notwithstanding the remedy of complainants under the probate law of the state. when the bill alleges facts evoking the exercise of the powers of a court of chancery, as that there has been no administration after the lapse five' years; that defendants have wrongfully appropriated the whole 'estate 'to their l1se, traded and speculated upon it. changing the original form of some of the property. made profits thereon. and been guilty of concealment, rendering a discovery and accounting necessary.
2.
SAME-JURISDICTIONAL AMOUNT-SEVERAL COMPLAINANTS.
The theory of the bill being that a portion of the heirs entitled to distribution may maintain the action for their respective proportions without joining others, in order to give jurisdiction to the circuit court the interest of each independent of others must amount to the sum of $2.000; and an allegation in the bill that "the amount of [the property in controversy] is unknown to said complainants, but much more than $2,000, over and above all justdebt& and funeral expenses," is not sufficient to confer jurisdiction.
8.
PARTITION-IN EQUITy-DISPUTED TITLE.
In a partition suit, either at law or in equity, the title to the land cannot be litigated; and when the bill avers. that defendant, one of the heirs at law of the complainants' intestate, possessed himself of the intestate's land on tile latter'$ death, without authority of law, and has since held the same. except such part as he may have disposed of or given to his co·defendants, to the entire exclusion of complainants. denying that there was any such property belonging'to intestate, and refusing to give complainants their share; hving . on and cultivatin/rsuch real estate as defendants own; using said property as his· own; makmg great profits thereon. no part of which has he ever shared with complainants,-the bill shows such an adverse holding under claim of right· amounting to an ouster amoug tenants in common as destroys the unity of possession, and takes away the right to partition. When an action for partition is instituted in the United States court, all the plaintiffs on one side must be non-residents of the state in which the suit is brought, and jurisdiction cannot be conferred by making a necessary party plaintiff a defendant, who is a resident of the.state. whose interests are all in common with those of the complainants, and against whom no antagonistic act is'lmeged.
4.
SAHE-PARTIES-DEFENDANTS-FEDERAL COURTS.
5.
LniITATION OF ACTIONS....PLEADING THE STATUTE.
When it .affirmativelyappears on the face of a bill that the statutory period has run, the objection may be raised by demurre'r: but, as this is personal to defendant, if he does not raise it by demurrer or plea, it rsdeemed to be wai ved. .
In Equity. ,On demurrer to bill. Bill by Ernest A. Rich and others, as heirs at law of William Bray, against Thomas Bray and Minnie G. Kinsey, also heirs at law of said William Bray, to compel an accounting of all properties in the hands of Thomas Bray coming from saId William Bray, and for distribution of the estate among the heirs. D. B. Henderson and J. O. Meredith, for complainants. Smith, Silver & Brown, for defendants. v.o71".no.7-18
;f2,'l,4
FEpERAL,REPORTER.
PmLIPs, J. This is a bill in equity. The petitioners are non-residents of the state, and the of this district. The bill alleges, in substance, that William Bray, the maternal grandfather county, Mo., on or about the of complain,apts.died intestate 15th day of February, 1883; that he died seised and possessed of a large of real estate and personal property, undisposed of by will or otherwisc; that he left no widow, and that no letters of administration have ever been granted on his estate; that complainants and respondents, and,other'unknown heirs,citizens onhe dominion of Canada, not made parties hereto, are his sale heirs at law; that on his death the respondent Thomas Bray took possession of the entire estate of decedent, consisting Of large tracts of land. and personal property, mill m.achinery, stores, and appliances, household furniture, horses, wagons, and implements of husbandry, farm products, live-stock, and other chattels, as also the and profits of said mill and farm, moneys, notes, mort.rents, gages, and. bonds, and ha.s ever since continued to hold,use, and enjoy the same as his own property,to the exclusion of the other rightful heirs of the decedent; that he has' made large profits out of said property, concealing from the complainants the fact of the existence of such property, whereby they have sustained great loss by the acts and misrepresentations of said Thomas Bray. The prayer of the bill is that said Thomas Bray be declared a trustee of said estate for,the sard heirs, and that he be required to render, a full and true account of all properties, real, al1d personal, that so ca.me h'lto his hands, and !tCcount for the increase and profits thereof; that'distribution be decreed to bamade of the entire estate among the lawful-heirs; and for all proper relief. To this billi the respondent Thomas' Bray demurs for various. grounds of objection, which, so far as deemed essential, will be considered in their order. , 1. It is objected that complainants have no standing in a court of equity, for the 'reason that they have an adequate and complete remedy at law It may be conceded that if this action had been instituted in the state court, it would fail, so far as the personal, property is concerned, for the reason that the probate system under the state statute 'has inthis respect largely superseded the ancient equity jurisdiction of the chancerJ' courts for discovering, marshaling and distributing the estates of decedents at the suit of the heir or creditor. The administration law' of the state affords adequate remedies and facilities to accomplish the object sought by this hill, to have an executor de son tort disclose the assets in his hands, and for their summary recovery, administration, and distribution by either a private or public administrator, rendering a resort to a court of equity unnecessary.' Titterington v. Hooker" 58 Mo. 596; Pea?'ce v·. Colhoun, 59 Mo. 274; JohnlJOn v. Bqazley, 65 Mo.,251; .Davis v. Smith, 75 Mo. 228; Fre:nch v. Stratton, 79 Mo. 562, 563. $ee, also, discussion in Rozelle v. Harmon, 29 Mo. App. 569. be .questioned, however, that such a> bill would have come within the cognizance of the court of chancery in England,as that jurisdiction was exercised at the time of the adoption of our federal constitution. In Pratt v. Northam, 5 Mason, 105, Judge STORY observed:
RICH tI. BRAY.
275
;nt :bas been for a great length of till)e setfledthat in -cases of the administl1ation of assets courts of equity have a concurrent jurisdiction with courts of law. '. Thl:l original grounliseems>to have been that. a creditor or other party in interest had a right to come into chancery for a discovery of assets,: being rightfully there, he should not be ,turned,over to a suit at law for finall'edress.And for the purposes of complete Jllstice, it became the administration and distribution of the assets the superintendence of the court of chancery. 'when it once interfered to grant ·relief in such cases." See Thompson v. Brown, 4 Johns. Ch. 619. The United States courts derive their equity as well as common-law jurisdiction 'from the federal constituti<?nand lo;wl:l; Even where there are no chancery courts the equity jurisdiction of the federal courts none the less obtains. The state legislature cannot by the adoption of any system of administering justice constitutional jurisdiction. of the federal court. Lorman v. McLean, 568; Robinson v. Ocimpbeu,' 3 Wheat. 212. As by Mr. JUstice WAYNE in Barber v. B(Lrber,21 How. 592: "It is no objection to equity jurisdiction in the lJourts Of the United States that there is a remedy under the local law, for the equity jurisdiction of the federal courts is the same in all of the states, and is not affected by the existence or non-existence of an equity jurisdiction in thelltate tlibllnals. It is the same' in nature:and extent as the jurisdiction of England, whence it is derived." , S6 it has baenrepeatedly held that the jUrisdiction of the courts of the United States over controverSies between citizens'of different staks cannot be impaired by the laws of the state which prescribes the modes of redress in their courts, or which regulate the distribution of their Judicial power.. Hyde v. Stone, 20 How. 175; Suyda,n v; Broadnax, 14, Pet. 67. In Pa'){ftev. Hook,7 Wall. 430, Mr. Justice DAVIS uses this language: . .' '.. . . "If legal remedies sornetim'es modified to Bult tbechanges in the laws of the states and the practice of their courts, it is not so with eq uitable. The equity jurisdicLionconferroo on the courts is the same that the high court of chancery iniEngland possesses; is subject to neitller lim itaUon nor restraint by state legislation: .and is uniform throughollt ,the different. states of the Union." I do not wish to be understood as holding, by anything here said or maintained, that where an estate is in process of administration under the state statute, in of any matters of fraud,and the like, wpich :would call into action the special powers of courts of equity for the attainment of entire justice,that a party entitled to sue in this court on the grounds of citizenship could call upon it to arrest the jurisdiction of the court, already acquired, and take uponitself the administration and distribution of the,estate. And where relief issough't on the equity side of the court"the bill.,ofl:lOurse, some of the which evoke and call into exercise thp. extraordinary powers of a court of chancery. The bill in this case shows that there has been no adl"ninistration after the lapse ()ffive years'; that BJlayha.s wtongfullyappropriated the whole estate ..to-:his use, traded and specula:ted .upon it, changed i
FEDERAL. REPORTER.
the original form of sotne of the property, made pronts thereon, and been guilty of concealment, rendering a discovery and accounting necessary. These are matters coming within the customary jurisdiction of courts of equity. 2. It'is also objected that it .does not sufficiently appear that the matter in dispute exceeds the sum or value of $2,000. As the amount in dispute is a jurisdictional fact, it should be made to appear affirmatively on the face of the bill. The only allegation from which any idea of the value of the property in controversy can be derived is contained in the following sta.ttlment: "The amount of which is unknown to said complainants, but much more than two thousand dollars, over and above all just debts and funeral expenses." How much more than $2,OOO? This averment could be true if the amount were only $2,100, or less. Is this sufficient to give this court j\1risdiction? There are a large number of heirs or distributees to share, in this property; and it is manifest on the face of the bill that the interest of no one of them, nor the inte.rest ofall the complainimts combined; amounts to the sum in suit. Some of 'the heirs who are admitted to distributees, and whose respective shares would have to be reserved for ,t,hem,· are not made parties to this suit. Therefore the position necessarilyassU);ned by complainants is, that respective interests and rights are so far separablethat any number of them may proceed with the litigation without the others. I understand the rule in such case to be that, where two or more parties may ,thus join, as a matter ofconvenience to prevent multiplicity of suits, in one action, for the ascertainment and of their respective interests in ,a common fund, the interest of,E1ach independent of the others, must amount to the swn of $2,000, to give juriEldiction to this court. King v. Wilson, 1 Dill. 556-568;.it'Ias8a v.Gutting, 30 Fed. Rep. 1; Woodmanv. Latimer, 2 Fed. Rep. 842; Seav('ff'v. Bigelows, 5 Wall. 208-210; Terry v. Hatch, 93 U. S. 44j Dhatfield v.· !3oylc, 105 U. S. 231-234. The case presented by this bill is, in my opinion, quite dil;ltinguishable in principle from that involved in Davies v. Corbin, 112 U. S. 36,5 Sup. Ct. Rep. 4. That was a proceeding by mandamus at the relation of several judgment creditors to compel the levy of taxes by the proper county officer to raise the fund necessary to satisfy such judgments. In such base the officer is to collect a .tax ,nat for' the benefit of anyone oreditor alone, but for all. As said by the court: "A of the judgment of OIie creditor would not relieve him from his obligation to collect the Whole tax; The object of the proceeding is, not to raise the sums due the relators, but to raise:the whole tax of ten mills on the dollar. .As the matter stands, each relator has the right to have· the whole tax collected for the purpose of distribution among creditors. 1;tis apparent, therefore, that tbe dispute is the tax collector on one side and all the creditors on tbe otber, as, to his duty to collect the tax as a whole, for division among them, after the collection is made, according to 'their several 'shares." ' . ,
.
But it cannot be maintained here that the payment by the respondent Bray of the of cornplainants would not abate this action, a1-
277
though there are other' heirs. This bill, as already stated, is framed upon the theory that a portion of the heirs entitled to distribution may maintain the action for the recovery of their respective proportions, bringing the case directly within the rule established by tbeauthorities cited. In the tax-levy case the judgment creditors have no common fund existent until after levy and collection; whereas in the case at bar the fund already existed before suit, of which each complainant is entitled to a definite portion. The demurrer to the bill on this ground is well taken. Maxwell v. Kennedy, 8 How. 210. 3. In respect of the real estate mentioned in the bill there is serious difficulty. There is no question of the jurisdiction of a court of equity tornake partition oflands, in which action all the equities between the coparceners may be considered and adjusted. But I understand the rule to be likewise inflexible that, in a partition suit, either at law or in equity, the title to the land cannot be litigated. Where there is an adverse holding under claim of exclusive right, amounting to an ouster' amongtetlants in cOIinnon, it destroys the unity of possession, and takes away the right of partition. Resort must first be had to the action of ejectment at law. "Hone coparcener disseise another, during this disseisin a writ of partition doth not lie between them for non tenant insimul etpro indiviso." Co. Litt. 167a; 5 Com. Dig. 225; 16 Vin. Abr. 225. So it is said in Adam v. Iron Co., 24 Conn. 230: "The rule at common law is well established that where the writ of partition would lie only between coparceners, the plaintiff must be possession, or seised of, the land when the writ was brought; and since the remedy by partition has been extended to joint tenants and tenants in common, the same rule obtains, whether the remedy is sought by writ or bill in equity." And this 'rulehas been applied to an adverse holding by one tenant in common adversely to his co-tenant. Law v. Patterson, 1 Watts&'S. 185; Clapp v. Bromagharn, 9 CoW'. 560; Lambert v. Blumenthal, 26 Mo;471; Ellis v. Davis, 109 U. S. 493,3 Sup. Ct. Rep. 327. What will amount to such ouster by one tenant in common of his' co-tenants has been, a much-debated question by the courts. It requires stronger evidence, or rather, more affirmative acts, to constitute an ouster by one such tenant of his,co-tena.nts than against a stranger. As the possession and seisin of one tenant in common is the possession and seisin of the others, his possession is prima facie not adverse to his co-tenants. Judge STORY, in Clymer's'Lessee v: Dawkins, 3 How..689, says: "This presumption will prevail in favor of all, until some notorious actof ouster or adverse possession br the party so entering into possession is brought home to the knowledge 0l'Iiotice of the othel"8. Such a notorious ouster or adverse possession may be by any overt act in pais, Of which the o.ther ten.ants. have due notice, or b)' the assertion, in any proceeding at laW, of a SliVeral and distinct claim or title to an entirety of the. whole land, which, in conof law, is known to tlle other tenants." :this question was fully cpnsidered, and with characteristic ability, by .Judge NAP1'ON', iIi Wa'/jield 30 Mo. 272, from which ;we make
218 servative i .
FEDERAL REPORTER.
r
'qnobi:tion, as 'correct view::'
"
what .
we conceive to be a con-
"To possess,lonof one tenant in common against his co,tenants, the.ra must, be some act asserting an entire ownership. It is further 'said in some cases that this act must be brought home to the kno\\'ledgeof the This, we suppose, depends upon the nature of the act. . If it c!onsists altogether of a mere verbal assertion of entire ownership, such an assertion could not 'with 'any propriety be regarded as an act of adverse possession of which the co-tenant was bound to take notice, unless made to him, .or commu.nicated to him. A declaration to a mere stranger that. is brought to the knowledge of amounts po, the '. But when the act is of such a nature al;l the law will presume to be noticed bypersons of ordinary diligence in attending to their own interests, and of such an unequivocal character as not to be easily misunderstood, it is not tillievedto be neeessary that .any positive notice should be given to the co-tenant, or that it deVOlves upon the possessor to p.-ove a probable actual knowledge oD the part of the co-tena':lt. It. is sufficient that the act itself is overt, notoriQus; ,and if ignorant of his rights, or neglects them, he must bear the consequences... ' The bill in the case at bar in substance avers that the respondent Thomas Bray possessed himself' of this land on the death of William Bray without authority of law, arid has ever since held the same, except such part as he may have disposed' of, or given to the co-respondent' MinnieG. KinseY, to their entirel'l':ll;clusioQ; denying that there was any such property belonging to Willillm Bray, and refusing to give complainants their share; living on and cultivating such real estate as his own; using said property for his own private' gain' in every way possible; mak-:ing greatprofitB thereon, no part which has he ever shared with plaipants. OOJ;lstruing the pleading most strongly the pleader, 1:1)e legititnate be from the concessions of the bill is tha,t the; oqs!erwas complete. Tl,le,re was not only an adverse holding, hut a'l9pep occupation of the to the exc;lusive use and benefit with ,the, denial ofc()mplainants' right to any share therein; alits so overt and notorious imply notice to the co-tenants. In his adversary character in the Dcen and excl usive claim of right is. unduly. mad,e ,the basis of. the relief sought by therellpondents, and therefore this cannot be maintained in respect of the real estate. , 4.lti$ next by t}1e r.ffJpondents that complainants'right of. action as to the personal propertyis,barred by the statute limitjng such causes of action to five yeaTS after the right of action accrued. It may pe conceded that where it affirmlitivelyappears on the face ofthebill that the statutory period has run, the obj¢ction may be raised by derrnirrer; buron 'exarrlinad,on, oOhe such grounq is assigned therein, and as t1,lis,is the respondent,if he, does not raise it by demurrer or plea, it is deemed to be waived by, ,him. Under the Missouri statute advantage cannot be'taken of the statute oflimitatioDs otherwise than by plea, except in ,those instances where the statute ates an abs'olutebar'Oylapse of time without any exception. Bank v. Winslow,'30 Fed. Rep.'488. ',' ." , . .
or
an
NORRIS , 'D. ATLAS STEAM-SHIP CO.
279
5. There is another fatal objection-to the jurisdiction ofthia court. The defendant Minnie G. Kinsey is joined as a co-respondent with Thomas Bray. She is a citizen of this state and district. She is an heir equally withcomplainants.Np Wrong is ,allege4 against her. Her interests, as appear from the bill, are in harmony with those of the cOmplainants. She is, a party to any partition, proceeding: Dameron v. Ja'TYU? 8O'n' 71 Barney v. BaltimoreOity, 6 Wall.'280. Why is sliejoined as, a co-resp9udent? No whateveris assignedjtherefor; 8:Pprehend that none other can be assigned th'"1n the fact that she could, 110t be joined as a co-comp1llinant without ousting jurisdiction of this court, for the reason that she is a citizen, of the state of Missouri, and of this federal district. The question, therefore, presents itself on the face of this, Can the by this maneuver bring this controversy lllto}his jurisdiction? The is that alfthe plaintiffs ,onolle side, wllere the action is instituted in the United States court, must be ofthe state inwhich the suit is brought. It would,in my opinion,be ,p,alpable fraud Oil Qur jurisdictIon Hsuch a supterfuge could resorted ,to successfully by making one of the necessary parties a defend./lllt whose intereets are all in common with those complainants, and against no antagonistic acUs itlleg!!d. ,:,this question has undergone thorough examination in the case of Eland v.Fleeman, 29 Fed. Rep. 669, in a case quite parallel in principle; and, approving the' principle therein announced, as. applied to the facts of this case, I hold that jurisdiction cannot thus be thrust upon this court. 6. There are other objections made to this bill, but they are not of sufficient importance to j\f8tify the prolongation of this already too long opinion. Demurrer sustained.
a
NORR.IS
v.
ATLAS 'sTEAM-8HIP
Co., Limited.
(CirCUit CO'Urt. S. D. New York. January 29,1889.) COURTS-FEDERAL JURISDICTION-ApPEABANCE-EFFECT.
Where; the action is one of which the circuit courts have jurlsl!llctloD; under act Cong..:Ttlarch 8; 1887, § 1, the controversy being one between a citizen of , the stat8',and a foreign. subject, and the amount in dispute exceeding $2,000, the provision of that section in relation to the district where the action Shall be brought does not affect the question of jurisdiction, and the privilege it accords to defendant is waived by filing a appearance .aJ1d answ-ering to the merits. '
'. At Law. :Motion to .set :aside service of summons. Action for damages for personal injuries, brought by Abraham Norris against the Atlas Steam-Ship Company, LimiteLL .Thepresent motion is based on the ground that defendant, being a corporation, is not an inhabitant olthe district, and therefore cannot be sued therein. .Before making the motion" defendant had appeared generally, answered to the merits, and gone to trial without raising the point.