!'DE . FOREST II., THOMPSON.;
875
elude tenn, used thereafter, without any definition of boundary, means the same territory. Hence I have no question but that by said secition 17 the jurisdiction over this " No Man's Land" was assigned to the eastern district of Texas. That, of course, was since the offense was charged to have been committed. My conclusions, then, are these: That to-day, ,and since March, 1889, the court of the eastern district of Texas has jurisdiction over "No Man's Larid."; Probably, Jllso:,the court of the, northern district of Texas had 'like jurisdiction prior thereto, and since 1883; and, there being a federal court, with jurisdiction territorially, with ministerial officers, a clerk, and: a: marshal, there is no trouble in finding all the machinery for. purposes of trial. Under those circumstances, it seems to me that it is Ule duty of this court to deny this petition.
DE
et al.v. TIioM'l\soN, Commissioner, et elL, l889.)
(Circuit Oourt. D. West Virginia. November 1.
,s.
and 'irregularity, though SUch' sales lind deeds were made pursuant to an order of 8 :' iltate court of the COU'Ilty where the lands sold are lIituated. BY FORlilIGN ' ExECUTORS.
The federal courts have jurisdiction of a suit between citizens of diil'erent lltaU,S, to set aside sllies of la.ud,l! forfeited to the state, and deeds therefor. for illegality
OJ' FEDERAtJ dOURTS-SutTs TO VACATE TAX-SALES.
W!lere the will of the deceased owner of such lands, in whose name they were sold, vests the title thereto in his executors and trustees, who arllcitizens of au· other the latter n;lay bring the suit in a federal court sitting in ,the state where the lands:lie, though they have not qualified in that state, as they sue in'their indiVidual, aJid not in their representative, oapacity. , EQUITY-JURISDICTION-MuLTIPLICITY OJ' SUITS.
11.
Where there are ma!'lY defendants, each of whom claims apart of the land under a 's81e' made under the'san;le oi-der of oourt relating to the whole, eqUity has juris)'. diction to avoid a mUltiplicity of, suits, though the sales were absolutely void, and plaintiJrs. have an adequate remedy at law. ' :Wherelaild is purehB6ed;by the state for non-payment of taxes, and is not redeeJIled by the owner the statutory period, such owner is not a- necessary party. to proceedings by the commissioner of school lands to sell such land for the benllfit; of the school fund, under Code W.' Va. Co 105, is 5, 6, as his title is gone. ' ;', ' ' , ,'. " _
.. '1'UATION':"SALE J'OR
" Failufeof the sherif! ,too return a li!lt of lands lold for taxes in West Virginia , within: IO'days, as prescribed by Code W. Va. c.311 f aI, and failure of 'the recorder ',to :note thetin;le of ftlirig lIuch list, as 'required by tue same statute, ren4eJ'the sales "invalid. , '
5.S:UI:E....IRREGULARITIEB. , :
e.
'J','
Wilerean origin&! bill assails BUch. sales as void on other grounC!lI, a supplesetting up the /lheriil"s failure to.return the list within the statutory tIme as all additional reason holdina the sales void, does nbt make anew 'and moon. ,
PLEADING-SUPPLEMENT.u.BILLI.
"
'
In>Equity. .', " , BiMsbyR. W. DeForest and ,L. W. Knox. citizens of York, trustees and executors of theestateof..Burr Wakeman, against William Thompson, commissiOller ofsc.ho,ol cqt!-ntYl W.
876
J'EDERAL REPORTER,.
vol. 40.
Va. ,to set aside sales of lands made for the benefit of the school fund, and the deeds made thereunder. ThOmas L. Brown andJames H. Fergusrtn, for plaintiffs. Jame8 M. French, Joel E. Stolling8, Watts &: Kennedy, and Kenna &: Chilton, for defendants. Before HARLAN, Justice, and JACKSON, J. JACKSON, J. It is alleged in the original and first amended bill in this cause that the plaintiff was the owner of 60,000 acres of land lying mostly in Boone county, in this state, a part of which is in controversy in this suit; that for the years 1869 and 1870 it was returned delinquent by the sheriff of Boone county for the non-payment of taxes thereon, in the name of the plaintiff; that on the 12th day of October, 1871, it was sold by the sheriff of Boone county for the non-payment of taxes thereon, and was purchased by the state, not being redeemed by the owner within the time prescribed by law; that the land was certified by the then au· ditor of state"as land within said Boone county, forfeited to the state of West Virgini\l in the name of BurrWakeman, for the non-payment of the taxes thereon for the years 1869 and 1870;" that afterwards the defendant, Thompson, commissioner of school lands for Boone county, filed his petition in the circuit court for that county to 'have the said land sold for the benefit of the school fund, and, a decree being obtained f6i'that purpose, the commissioner sold a portionof thaland and made a conveyance to the purchasers thereof. The bills allege numerous ularities and illegalities in the proceedings as reasons why the sales and deeds should be declared illegal and void. After the filing of the original and first ameIJded bills the plaintiffs allege that they discovered other .errors, and illegalities in the proceedings of the sheriff and recorder of Boone county in relation to the sale of the If!,nd and the report thereof to the recorder by the sheriff,and the recordation thereof by the recorder, which would render the proceedings absolutely null and 'void, and that in fact no forfeiture of said tract of land ever occurred. For this reason the second amended and supplemental bill· was tiled, setting up these facts. The defendants filed their answer in reply to the . lUlegations of the bill, amended and supplemental bill, setting up various defenses,-among others,the sale of the land for the non-payment of taxes under the decree of the circuit court of Boone CQunty, relying upon the defense that the courts of the United States were without jurisdiction to pass upon 1he validity of the title to the lands claimed herein, for the reason that, the deeds having been made in pursuance of an ordarof the oircuit court sitting for the county of Boone, where the lands . lie" such sales could only be set aside and avoided by the decree of the court which directed them to be made. In this last position I do not concur. The plaintiffs are citizens of New York, and the defendants becitizens of West Virginia, the controversy between the parties is one between Citizens of different states, and therefore, by the constitution amI-laws of the United States, is one of which the proper court of the United States may take cognizance in some form.
DE FOREST 11. TBOMPSOIl.
877
The question to be determined here is whether the orders of the Boone circuit court, under which the lands in dispute were sold, are conclusive and binding upon the plaintiffs, when assailed in an independent collateral proceeding, and may be decided as well here as in the state court. The presence of such a question in the case does not affect the jurisdiction of this court, for it is competent for the federal court in a controversy between citizens of different states to pass upon the question whether the state court had jurisdiction or power to order the lands in question sold by the school commissioner. Payne v. Hook, 7 Wall. 425 j Johnscrnv. Waters, 111 U. 8.640,4 Sup. Ct. Rep. 619; Arrowamith v. Gleason, 129 U. 8. 86, 9 Sup. Ct. Rep. 237. In the last case referred to the court said: "These principles control the present case, which, although involving rights arising under judicial proceedings in another jurisdiction, is an original, independent suit for equitable relief between the psutiesj sllch relief being grounded uron a new state of facts, disclosing not only imposition upon a court of ju:sLice, in procuring from it authority to sell an infant's lands when there was no necessity therefor, but actual fraud in the exercise from time to time of the authority so obtained. As this case is within the equity jurisdiction of the circuit court, as defined by the constitution and laws of the United states, that court may, by its decree, lay hold of the parties, and compel them to do What, according to the principles of eqUity, they ought to do, thpreby securing and estaulishing the rights of which the plaintiff is alleged to have been deprived by fraud and collusion." , Applying the principles announced in the foregoing decisions, it will hereafter be seen, in the discussion of this case, that it falls within the princi pIes as announced by the court in the foregoing cases. The next contention is that the plaintiffs, never having qualified as executors Of Burr Wakeman in this state, could not bring this suit. This position cannot be maint!1ined. In Lewis v. McFarland, 9 Cranch, 151, it was said that the principle that "letters testamentary give to the executor no authority to sue for the personal estate of the testator out of the jurisdiction of the power by which those letters are granted" does not extend to a suit for lands devised to an executor. This is not an nction for the recovery of personal property. The purpose and object of this action is to set aside the sale of certain lands described in the bills and amended bills, and to vacate the deeds made in pursuance thereof. The plaintiffs in this action sue under the will of Burr Wakeman, which vested the title to his lands in his executors and trustees. They are therefore devisees and trustees suing for the protection of rights to the realty derived from and under that will, and not in their character as personal representatives, derived from the letters testamentary. By the will, the legal title to the land in controversy was vested in the plaintiffs in this action, and, 88 I have before said, being citizens of a different state from the defendants in this action, they were entitled to be heard in this court. The next position insisted upon by the'defendants to defeat the plaintiffs' action is that, if the. plaintiffs'position is trlie, that the proqeed-
a,bs,olutelYV6id' under which the lauds were' the piairltiffsllave a complete and'lldequate 'remedy at law, and this court, eqllity, is without jurisdiction to,grant the relief asked {or. It will be' observed that the lands in question were soldt>y virtue of the pro-. ceedirigsihtheBooneoirctiit court, and passed into the hands otn1;lmerous parties, each of whbItl' claims under a sale made under the order of that cotirtrelating to the whole ofthe land in dispute.: The stll-te court' 'based its >proceedings upon steps previously taken upon the for-, feiture ofthese lands as delinquent lands. The lands prier' to the allegedforfeittire and sale under·the order ofthe court constituted one body, and were held by one person, Burr Wakeman. If the attempt to forfeit them was not in law a forfeiture that divested.his title, or if the proceedin ,the"Boonecircuit court wer!", unauthorized and void, then the titlejlS to all ,he lands Wakeinan, and passed under his will to the plaintiffs. Each defendant's title depends upon the same tions, and those questions alL have relation in, the: Boone circuit court, andto:the attempt to forfeit the lands for non-paY-, ment , It is a case ofone person having a rightagainsta'number of persops, which to all the parties interested by one suit., If the brought ejectment against orie of the defendants,and succeeded, the judgment w:ould not other defendants, although in ,each Qa,se would be preciselythe same., But if the plaintiffs can, by one comprehensive suit, have their rights declared and secured as to all the lands, the possession of which is withheld by the defendants, each:claiming·apa.rticular parcel, but all basing their 'claims upon the same proceedings instituted by the officers of the' state, may the)"not invoke the jurisdiction of a court of equity upon the ftimiliar ground that.bysuing in equity and bringing all the defendants before the court in one action they can avoid a multiplicity of snits? I Jur. §§' 245-269, inclusive. think they can., 1 The' contention that Wa:keman, 'and ,his exeoutors, since his death, were,necessary parties to the proceedings in the Boo,ne circuit court, is hOt: sound. If the steps taken to forfeit the lands ih, question for tne ilon"payment of taxes were in with law, then the title passed !rpm the owner to the state. The proceedings which the filtatute authoi''' to be instituted in the circuit court for, the sale of forfeited land by tpe school commissioner Va. ·c. 105,§§ 5, 6) constituted the mode ordained by the state for selling its own land. .As the: title of the fornier owner was gone;' he had no right to bea party to those proceed.. iiigs, or to be heard in reference thereto, in the court of original jurisdiO" the supreme court of appeals of the 'state. His right was simred(lemwithin a'presorib'ed 'time. , These principles are decided in' McClurev. Maitland, 24 W.Va. 561. ' I am not inclined'at this time to '4uestion the soundness of the decision of the court in ,that case, and tb'etefore 8eceptWa.s embody-ioga sound :constI'\1<ltion of the statutes of West Virginia relating to that, subject. In the view I take of this case, It'is unnecessai-y to pass upon aU the qU'estions oonsidered by thec()urt tiB'thefattsil1' this case differ ;r
879;
The, question' presented for eoneidel'8tfmI ,holtltobe vital,---the. One'l:lpOp which, it iEi apparent, the case rests. Itia:whetherthe sale of. these lands was void.: ' The ,Code ofWest Virginia provides for the sale of real -estate ,by the sheriff of the county in which the lands, or a greater part of them, lie, for taxes, if it has been returned delinquent for tbe inclusive. Sec-, non-payment of, tbe same. Code W. Va. c. 31, §§ tion 31, c. 31, Code, provides that when any real estate is offered fo.. . sale ,and no person present bids the amount of taxes, interest, and. com-, purchase the same on brehalf of missions due thereon, tbe state, for,the taxes thereon, and the interest on the same, and shall, make out a list thereof, under a cantion provided for in that section, and underneath the caption "shall be the severaleolumnsprovidedforinthe tenth 'section, with alike caption to each column, with one exception.':' The officer making the: list is required to certify it under oath, and return the list, with a certificate of his oath attached, to the auditor, of thecounty, now clerk of the county court, within 10 ,days after the sale, who should, witbin 20 days after the return, rer.ord the same in a wellbound book,and transmit the original to the auditor orthe $tate. It is conceded that the sheriff made a sale, under this statute, of the)ands in controversy, and purchased the surne on account of the state. ' But, in so doing, it is claimed' by . the plaintiffs in this 'action, ,he failed to com- . ply in several respects' with the terms of the statute, and tbllt in consequence of his failure the proceedings were irregular, and the deeds founded upon them are null and void. It will be observed that the heading of the list is prescribed by section 31, and the form of it, after the heading is made, must conform to the provisions of section 10. This section, among other things, requires the officer to return the "estate held" in the lands sold and ,purchased .by the state, "in what district the land sold was situated and charged with taxes, and the description of the same." Section 13 requires and prescribes the form of an affidavit to "be appended to the list." Section 31 requires the heading of the lis.t to contain the name of the county in which the land is sold, and the month and year in which the sale is made, as welLas the year in which the Jand was sold for the,nqn-payment of taxes. An inspection of the list returned shows that the officer in returning his list had failed to comply with each of the foregoing requirements, thereby 6howing great regularity in the proceedings Jaken by him. that there were. no less than seven 'From what I have said, it teqiliremimt8 of the· statute which the officer failed to cOlllply with in making .his. report. It: is claimed, however, that some of the requirements of the thirty-first section are merely directory, not mandatory upon: the officer, and that the irregularities arising. from. the failUre of the officer to comply with these provisions are not essenti.al,. Bl,Id do not vitiate his proceedings. In the view I take ,of this case, it at this time to express my assent or dissent to. th,trposition. If it was neeessllJ'yto'de,cide this case,:I,WQuld upon;tpatqJ.16stiQn,. but it is doubtful if I would be able to find any.real or supposed reason why one ; ,'J;his positive requirement of the statute is more important than
880
DDERAL REPORTER,
act of the legislature prescribes the terms upon which realty may be sold for taxes and the owner divested of his title. Should not every positive requirement of it be regarded as material, to be strictly complied with? Otherwise, may not the· officer conducting the sale, to some extent, exercise the functions of a judicial officer, deciding what is necessary to be done to comply with the' terms of the statute, instead of a ministerial officer, to execute its provisions? There would seem to be but one answer to this question. If he can omit any positive requirement of tbe statute, he may omit all, and thereby arbitrarily divest any owner of his in arrears for taxes. No judicial interposition is required title to to effect the sale of realty for the non-payment of taxes. It was intended that tbe statute should execute iteelf, and it would seem, for this reason, if no other, that every requirement should be strictly complied with. Ought we not to infer that the legislature, when it declared in its act that the terms upon which realty might be sold when delinquent for taxes, that it regarded all the requirements of the statute as essential? Otherwise, would it not have omitted to insert'ahy provision that was not regarded by it as material? If this be the true construction of the statute, it would follow that the failure of the officer to comply with any. positive requirement of it would vitiate the sale made by him, which .would be fatal to the title of tbe defendant acquired through the state. But, as we have said, it is unnecessary to decide this question. There yet remain two other grounds to be considered upon which complainants seek relief: Jilir8t, it is alleged in the second amended and supplemental bill that the sheriff failed to return his list of lands sold as delinquent for taxes within 10 days after the sale and purchase of them by the state; second, that the recorder failed to note the time when the sheriff returned his list of sales. Both allegations are denied by the answer, and the defendants attempt to show that the statute was complied with in both respects. The evidence upon both points seems to be conflicting, but the weight of it strongly supports the conclusion that neither requirement of the statute was complied with, and the effort of the defendants to overthrow both provisions was clearly the result of an afterThe neglect of the officers to comply with either is such an irregularity as tends to prejudice the rights ofthe owner whose lands.have been sold. He ha.d a right to call at the office and demand the producIf he discovered it was tion of the officer's report for· his not there within the prescribed time, or, being there, had not been filed within the time prescribed by the statute, or that the recorder had failed to note the filing of the same, he could rest upon his rights, feeling assuredthat the steps taken to sell his realty did not divest him of the title to ito Both provisions of the statute are mandatory, and were held by this court, in the case of Rich v. Latham! and others, in 1879, to be so essential that neglect of the officer to comply with either renders invalid the title acquired in pursuance of their action. And this, I think, is now the settled law of this state, as ruled in the case of Barton'a Heirs v. Not. reponed.
DE FOREST V. THOMPSON.
881
ter v.Cottrille,24
GilchriBt" 19 W. Va. 228; Simpson v. Edmiston, 23 W. Va. 675; McCallisW. Va. 178. Before leaving this branch of the case, the significant fact should not be overlooked that the last amended bill charges that the affidavit was not returned within the time required by the statute, to which allegation 110 answer has been offered or filed, although the absence of such an answer was commented on at the time of the hearing of this cause. I have heretofore spoken of this omission upon the part of ,he officer as being a positive requirement, and one which we hold to be essential. It is contended, however, by the defendants that the last amended and supplemental bill, setting up this omission of the officer, makes an entirely new case, inconsistent with the theory of the original and the first and second amended bills, and in support of this position defendants rely upon Shields v. Barrow, 17 How. 137. In this position I do not concur, for the reason that the case is entirely different from the one before us. The object of the present suit is to obtain a decree settling the right of the plaintiffs to these lands, as against the claim of the defendants, based upon certain proceedings taken by the officers of the state in connection with their forfeiture for the nonpayment of taxes. The original bill assails the title of the defendants! derived from those proceedings. as void, and asks a decree declaring the title of the plaintiff to be good as against the defendant. The plaintiffs started out with the idea that the proceedings of the Boone circuit court were void, principally because they were not made parties thereto. The last amended bill only assigns an additional ground for holding such proceedings! and the sales under them, to be void. This proceeding being in a court of equity, under the rules of equity pleading, it does not make a new and different case. Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. Rep. 771: and the authorities there cited. It follows, from what we have said, that a decree against the defendants, declaring the sales to them by the commissioner, and the proceedings in the Boone circuit court. under which the sales were had, to be void as against the plaintiffs, will be passed. HARLAN, Justice, concurring.
I,""
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; ';,';, ,
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,
SOCIETE ANONYME DE LA DISTILLERIE DE LA LIQUE;qRB:m,mnICTINE DE FECAMP'V.COOK et aJ.,< ,(OtrcmU o,o\M1, S. D. NfJI1)' tn 'an action to restrain 'defeIidantsfrol1l using bOttles' and labels in imitation ,of , ,thoBefOf Whe,re t\le patent for the design Qhuch:bottles has expired, whether defendimis are using the same in' good faith, in which case t\iet,t,'a:ots 'would' be lawful, or for the purpose,of m,iBle8.ding" the, PUbliC" jo believe 'thatdiheyare selling ,the artlcle,made by plaintiff. in, which case the expirati9l1. of t1l,e would, be 119 defense, doeB notarise under the of the UIl1t.ed States BOas to give the federal courts jurisdiction. . ' ,
':',
<
,','
: 0nm:()tion to remand. HubbeU, for complainant. Giffcitd. Brown, for defendants.
," :
WALLACE,J. The question whioh arises ()n this'rilotion to remand this suit to the state court;from which it was removed, is whether the suit involves a federal question. The action is brought to restrain the defendants from unlawful competition in business, and the complaint alleges that the defendants are fraudulently selling a; liquor or cordial in imitation' of that of phintiff, by using labels, bottles; and other accessories in irriitationof those previously used by the plaintiff. The answer, among other things,alleges that letters patent of the United States for a design fora bottle were granted in 1868; that the term of the patent haS expired; and that the bottles, labels, etc., which defendants are using, are those which have become public property ever since the expiration of the patent. If the defendants are in good faith using the bottles and labels ofthe ·patent, their acts to that extent are lawful, and would no more be an, infringement of the rights of the plaintiff than if they were using them with the consent of the plaintiff,andhad acquired a valid right to use them befol'e' the right of the plaintiffacorUed; But if they are using them under false colors, as devices, among others. intended to lead the public to believe that they are selling the liquor made by the. plaintiff, they cannot shelter themselves behind the expired patent. :In either view of the facts that may appear, the question is one to be determined by the principles of general jurisprudence, and does not arise under the laws of the United States. The motion is granted.