FEDERAIl.REPORTERtNol.
38.
years, that he can be proceeded agamston'thisstalelclaim ofa resulting trust, any more than the mother could be if she wereliving, or the brothersandsisters if they were parties to this bill, as they,are, some ofthe01. Whatever protects them in a court of equity on, the ground of staleness of demand,:protects purchasers froID,them, ,whether,by,tax-title or otherwise. The cross-plaintiff assumes tliatKeely'spossession under his taxtitle oommenced only in 1880, less ,than seven years ;before the bill was .filed, 'and, not being barred by the statute of limitations, the argument is that the demand cannot be stale as to him. Perhaps ;his possession would be held commensurate with,qis ta,x-tltle, which he acquired in 1864. As to part of the property, he, is alleged to De in possession now, and we are asked to treat him aSRn adverse holder only since his possessioncG'mmenced; and as to another part the .pleadings allege on both sides.that it was a common until the struggle for possession which prodUcedthis bill commenced. ,Urider such circumstances it cannot be assumed tlla,t his possession is recent, to avoid the' staleness of this demand, because, 'if for no other reason, his possession attaches itself to that ofthose whose title he acquited; and the averment of the cross-bill that they recognized Mrs. Weir's claim capnot only ,a conelllsion.Ol; opinion expressed against the will of Mrs.Sanders,denying ,Mrs. Weir auyinterest, andtheconduet of the and sisters in claimiug it to her exclusion by not joining her in their bill against Keely. ,Ifthey did,not join herbecalise tbey recognized her claim, then they : were suing in her behalf,artdsh'e is bound. This'cross+bill is an instrument of defense to theorigina.l'bill; and while, if it Were. itselfan origi'nal, bill, these defensescquldnot!be'made, perhaps:,' or all ofthem could not, pos&bly,by the demurrer, but by plea or. answer only, yet the plaintiff'/!! original bill sets them up by pleadingJthe.former decree as a soureeof title, Or as settlil1gthetitle, and the ·averments oUhe cross-bill, 'taken original bill as to that suit,-and ,;theyare.notdenied,-maKe the record show upon'itsface the estoppel upori'whichthe original pltl.intiffrelies, and he need not therefore plead ,it. 'Demurrer sustained.
, WALKER f1. STURBANS. SAME.". CRONKITE. SAME ,f1. HAYCOCK. ..'
, .
,
(02'rcuit' Court, .P·. 11anBa8.
April 1, 18$9.)
','JWGMENT-COLLATERAL ATTAcx..,...ExECUTION-BALE.
.' JUdgments werlnecoveredagai'nst orie seised of Jandfnanother county, 'and certified' COpillS were filed in ,the clerk's office ot the l,lounty in which the accordiI\g,t? prov!sions of .code .Pr.oc. Kan. § On of,theju<l,gments executIOns,were Issued from the court in whICh they 'were' rendetetl. when plaintiff. alleging his judgment to be prior to the others. brougbt a ,suit in equityagoainattlie Judgment debtor and the other holders of ,judgltleptato ,\ietermine the priorities a!nong'them,f.' that the sherIff'be dire.cted to the land, and for general relie .. Held. that a decree'lid, 'Jull'ting tlle-pHorlties of the several liens, and directing an'executiori to ioSsae
for laud,,'W!tetber p,r voititttonglltbe , section meilt'fobed,' afttltpr6viili.ng'fortIl.Ei fititik bf'ti"anscripts of j ddgm'eri ta in . otber,countieB'thaD thati of their ·l'ecoV.ery:piJescr1bes that executions·slicaU only issue', fJ"omthe courts .in which they'arll rendered, the- questioli 9f tbe propriety of such a jud.gment in that form.of 'lj.ction lleing Qne ofprflocti.ce, .and'not one of power. . '
At Law. . Actionsfol' the recovery of real estate, brought hy T. H. against M. Sturbans, Frank Cronkite, arid James H:a)'cock, respectively. ,Demurrers to the answers of defendaQts were filed, and were heard together. J. '4.' .Smith and John8on, Martin & Keeler, for plaintiff. J. 'R:.,McClure a?d C. N. Sturbans. Kellogg &:' SedgtlYl.Ck, for defendants CronkIte and Haycock. "0 t, L_ . . . . ·. ,
FQSTER, J. are ejectrn.ent suits. The plaintiff alleges .thathe is the owner of certain lands in Lyon county, Kan., and that the defend.. ants him out of the of the same. Thedefendants claim. title to the land under and by virtue of a sheriff.'s sale lpade unders judgment of the district court of 'Lyon county, a court of general jurisdiction, in September, 1875,in which A. S. Kimball . was. plaintiff and ,T.. H. Walker and otpers were defendants,. at which ,sale said Kimball became the purchaser, and. received the sheriff's deed in J;ply, 1877. and subsequently Kimballl'loid the lands to thesev... eral The plaintiff claims that thejudgment of the di!>trict court ()fLyon county, under which the la\ld was:sold, is null and voidj' that the,court had no power or to render the judgment; .anu especially was said .court without jurisdiction to order a sale of said. land judgment. The facts preceding the rendition ofsajd judg'" .arebpe:6.y us follows;f3aid A. 6. Kimball, in 1872, reco\tered a judgment against T. H. Walker in the district court of Davisc9ullty, $8,617.70. July, J873,Kimball .caused a certified,,<lopy of his judgment tq"pe filed ip th,e offi,ceof the clerk,. of the district court of Lyon county, as by;. section 419 of the Code of Procedure. .following, Kimball caused an execution to be issued out of ,thil clerk's office of Dayis county on said judgment, directed to the Lyopcounty, which e;x.ecution was by sa.id sheriff levied on the laJ,1d in Coo.tt;oyersyas thepropertyo(T.II. Walker, and said. sherifi' had the land duly appraised,Eltc., ,In Septt'lillber, 1874, said judgment creditor an aliaa tORe issued from county to the sheriff of ,Lyon ,county, wholevied the same on said lands, and. had the same duly appraised. During the years 1873 and 1874 a greatnumberof other parties said Walker, in different counties oqhis andalsocap!>ed certified copies of the same to be nleclin the cler;k'soffice. ofj,the district court of There were over 20 of judgment creditors. 60me.of them had made levies on the land,: and,ivere about to proceed to sell 'Under this state of affairs, that his juggmentwaf,l a first lienon the land, coma equity in, thecdistrfet of Lyon county to -'hI1-ve tM
300
FEDERA.L REPORTER,
vol. 88.
priority of the said several judgment liens determined and settled. In that suit he made T. H. Walker Send the sheriff of Lyon county and all the judgment lienholders parties defendant. In addition to his prayer for the determination of the priority of the several liens, he prayed that the sheriff of Lyon county be directed to sell said real estate, if the same shall not have been sold, and, if sold, that he hold the proceeds subject to the further order of the court, and for such other and further relief, etc. Service of process was had in said suit on T. H .. Walker and the other defendants. Walker made no appearance, and the several judgment creditors filed _answers setting up their respective judgment liens. In September, 1875, said cause came on for hearing, and the court, arter hearing the evidence, made a finding of facts and conclusion of law, and entered a judgment thereon. Among other facts, the- court found that on the 7th day ofSeptember, 1874, Thaddeus H. Walker was the owner in fee of shid lands; and that in November, 1872, A. S.Klmball recovered his judgment in Davis county for $8,600 and costs;· and filed a certified copy thereofin Lyon county, as before stated, in July', 1873, and had citusedexecution to iSsue and to: be levied on said land, etc., as· before statedvand that, including -interest and costs, there Was then due said Kimball on his judgment and that the same was the first and prior lien ·on said real estate. The court then proceeded to determine the amount due each creditor, and determine the status of each lien. The· court further ordered that the said real estate be appraised and sold according to law, and that the proceeds arising from the sale thereof be applied as follows: (Then follows the several judgments according to their priority.) It was on this judgment that the execution wa:s issued to the sheriff of Lyon county, and all which he sold the land toA. S. Kimball, who sold to the several defendants. The question to be decided· is whether this judgment or the execution issued thereon is void, and of no legal effect. The plaintiff insists that, even if the court in Lyon county had authority to adjust and settle the priority of the several lieils, it could go no further, and was without power or authority to issue an order of sale of the property; that the execution should have issued on the originaljudgment .from the clerk's office of the county where it was obtained. See section 419, Code Proc. Of course, in a collateral proceeding, the judgment and proceedings thereunder can only be attacked where they are absolute nullities. This court cannot be called on to decide whether the state co.urt, if it had jurisdiction of the parties and subject-matter, exceeded itS proper functions or not. This court has no power to sit as a Court 'of review on the proceedings of the state court. It can only determine whether that court acted with or without jurisdiction: .The court having jurisdiction of the subject-matter of the action and of the parties, and haYing rendered judgment thereon, it cannot be treated as a It makes a record valid upon its face, arid all else is forM only. J11ax'Well v. Stewart, 22 Wall. 791 Shriwir v.Lynn, 2 How. 58; Voor;', hees·v.Bank, 10 Pet. 449; Tlwmps01l.V'. Tolmie, 2 Pet. Ludlow v. Ra1ltsqg;"1l Wall. 587; Harvqg v. Tyler,2 Wall. 342. For a. 'full dis:'
WALKER fl. STURBANS.
301
cussion as to what constitutes jurisdiction, see Mr. Justice MILLER'S opinion in Cooper v. Reynolds, 10 Wall. 315. It must not be understood however, that the court, having jurisdiction- of the subject-matter and the parties, may not go so far outside its authority as to render its prOceeding void. Ex parte Lange, 18 Wall. 163. If a judgment for a sale of the real estate by the Lyon county district court was in conflict with positive law, or the plain provisions of the statutes of Kansas, it may well be declared a nullity. If, however, it involves merely a question of practice, or a question whether there was a plain and adequate remedy at law, or any other question involving the exercise of the judicial or discretionary power of the court, however erroneous may have been the conclusions and judgment, it cannot, in a collateral proceeding, be treated as a nullity. When we look into the Kansas statutes we find but little light on this particular point. It is plain that the suit to determine and adjust the judgment liens was properly brought in Lyon county. Section 46, Code. In section 419 of the Code, which fixes the date from which judgments shall be a lien on real estate, and provides for filing transcripts of judgments in other counties, the last line of the section provides that executions shall issue only from ,the court in which the judgment is rendered. It is likely this provision was only intended to refer to those judgments where a copy was filed in another county, for sl,1ch a declaration would have been unnecessary for in general, for every court is preBurned to execute its own judgments. H,'however, a broader const,fuction is given it, it would be all argument in favor of the validity of ihl;l order of sale of the Lyon county judgment. If the suit to determine the liens had been in this court, or in any court where actions at law and suits in equity are recognized as separate and distinct proceedings, there would be very serious doubts whether the court of equity could or would do more than remove the obstaCles to a sale under thejudgmenta'tlaw; and yet, if it should appear to the court that complications in distributing the proceeds under the decree, by relegating the parties to their executions at law, or that their remedy in that behalf was' not plain, adequate, and complete, I know of no good reason why the court of equity may not order a sale and distribute the proceeds in accO'tdance with its decree. The court will retain jurisdiction for all purposes within the general scope of the\equities to be enforced·. ' TMMary FO'td,. 3 Dall. 188; Ober v.GaUagher, 93 U. S.199; Ward v. Todd, t03 U.; S. 327; The Kansas Code, § 10, provides as follows: "The distinction betweel" actions at law and suits in equity, and the forms of all such actions and suits, existing, are' abolished, and iri ,their place there shall be, hereafter, but one form of' action, which shall be called a 'civil action.''' Under the Code the manner of proceeding is the same, whether the cause of action would be called "equity" or I'law." The distinction between decrees in equity and judgments at law are unknown.' In all cases the plaintiff prays for j-gdgment, and,whether the ,action is on a note alone, or on ,8 note andi 'riI'ortgageor a mechanic's lien; he ,takes a judgm'entaccol'ding to his legfl1 and equitable rights, anq aD that judg.
30!
FEDERAL. REl'OR'J'ER;voL ,BS.
menthe: takes eiecul;ionacpordirigly. ., And further , the supreme court Of Kansas :hail decided tHat ajudgment· creditor may at any titHe make
his judgment the basis of 0. new 'action against the debtor, and· obtain another judgment thereon. Bt,rilesv, Simpson, 9 Kan. 659; Humrner Y. Lamphear, 32 Kan.439, 4 'Pac.' Rep. 865. It will be seen that the Code and the ;practice under it makes it still more difficult for this court to determine whether :the. Lyon county court exceeded its jurisdiction.At most, it seems to me to be a question of practice and not power. I find no positive law or statute limiting or defining the jurisdiction of the court insuch.·cases, and,as all presumptions are in favor of the court having jurisdiction of the and the parties, this court can find nC) justification for declaring the judgment in question a nullity. The demurrer to defendants' answers must be overruled.
CrrYOF' CHICAGO t1. MESSLER
etal.
(Oircuit (Jottrt, 1r.
'March 25, 1889.)
t.· ElRN1llNT t;:SAME;
PENDENTE L I T E . ' f who takes a lell,sependlng proceedings forth!! condemnation of thl!j p.relLises. has DO claim for damages .agalnst the bc>dy maintaining the pro.,
, But his interest is terminated by the proc!!edings,and he is eI1titledto its , value qut of the, damages awarded tc> the lessor·
,.'
' ..,. '. . by the city of Ohicagofor the condemnation of property William Jenkinson petitions for payment, qf );lis damages. :"John W. Green, for the City· .W. II,.; qU'f/<ninghq:rf/:,. forJ enkinson. ,Jtuld, Rit{:hie&F;sher, for Bond. : "
..\tLaw.:;
J.'In the, city fiJed s petition to condemn 33 feet/of land onthj:lea'lt sidtl of Stewatt avenue, from Twenty-Third street to,EgaJlt avei:lUe,for tbepurpose ofwideningSteW8.t't .ayenue. Henry R.. Bond,s citizenrof the state of Connecticut, as:owner of lots I' and 8 in United States .Bank addition to ,Chicago,causel1"theaase, so far as itre. lated J.o these lands, to be removed ' to this court,for hearing. On the 18th,day ofFebruary Jast a jury was waived,Rnd.thecause tried bytne OOllrt l ! nnd thevahle.ofthe pQrtionof the lots in! question owned by Mr.: Bond soughtto'be takeninthis proceeding $22,500, sjudgl. ment<reQderedaccardhlgiy, .and the mOlley, paid:dpto: court,wher.e it·now is." entered, one ,WilHamJenkinson has appeared pled hi& petition: in the case, stating that on ;toe '23dofMarch, ,'.BLODGETT,