WOpLWORTH tI. ROOT.
723
it does not represent the con'tract actually existing between the parties. The power of the court to correct a mistake of this nature, and to conform the policy to the contract as actually made, cannot be questioned. Williama v. Insurance Co., 24 ,Fed. Rep. 625; SneU v. Insurance Co., 98 U. S. 85. Complainant is therefore entitled to a decree for the reformation of the policy of insurance issued by the defendant company, as prayed for in the bill of complaint, and for costs.
·WOOLWORTH 'l1. ROOT.
(O{rcuft Oourt, D. Nebraska. December 28, 1889.)
L
J'tmGJmN'l'-RBS AD.roDICATA-DBBDs-Ell'FBOT OJ' RBOORD.
M., to be the owner of a certain traot of land, brought suit against defendant to.qulet title. A decree was entered Mav 8, 1878, quieting title In M. On June 24, 1878, M, deeded to complainant an undivided one-half. On the same day he the otjle1' undivided one-half to W., and on June 4, 1879, the executors of W.conveyed that undivided one·half to complainant. Defendant asserting title, and entering into possession of the land, complainant brought suit to quiet title In , It appeared that 14" prior to the commencement of the suit, had executed a deed to W., dated August 19, 1869, and recorded September 15, 1869; and defendant claimed that 14., therefore; had' no title when he filed the biR, and that the deer¢ewas obtained by fraud upon the court; that defendant was not aware of the condition of the title at the time of the suit and decree, and was therefore not pre. oludedfrom raising the question. Held, that the deed from M. to W" being recorded, WII.I! oonstructive notice to defendant, and he was conoluded by the deoree against him divesting his title, and vesting it in M. As. :theevidence showed prior to the filing of the bill, W., who was the brother of M., called on complamant, and produced a writing signed by the two brothers, the effect of whioh was to revest the title In M.; that by direotion of W. complainaJit brought the suit in the naUle of M., who afterward confirmed all that had been stated; and that after the decree of 1l;l78 it was agreed that M. should con'vey to complainant an undivided one·half of the p1'emises,-this testimony removed all suggestion of fraud or wrong· ATTACK.
.. BAMB"'""Il'RAtro.
'Defendant oould not, hiRattempt to avoid the efl'eot of the deoree on the , . ground'of' the insutllciehOY of the deed from M. to W., in 1869, because there were DO witnesses to It.
..
4.
,
AI1VBRSE' POSSESSION.
All, by the deoree and.the deed made in pursnan<-e of it, all title and right tJ,f pos.sesslon in defendant was transferred to M., no retention of possession by defendant was adverse to the title oonveyed, and be could set up no title based upon that pOlluntil he had first given notice of his intention to claim POWBRS.
A will which specifically authorizes and empowers the executors "to grant, barliain,sell, and convey, and, if necessary, to mortgage, any and all real estate, and 'ileeds, releases and morgagel'l to make and acknowledge, as fully and amply as I could do were I living, " gives to the executors a power under whloh they can oonveyafter the probating of the will, although no previous license was obtained from the probate oourt.
In Bill for. nn i n J l l n c t i o n . , 4., J.l'fl/JPletoo and J. M. WQobvorth, Gewge W. Covell and J. L.Webster, fQr d,efendant.,
,1Il &.ge:n.foral 1o'lay, these may be stated
J. This is a bill tocarryi,nto effect a dec.ree of thisC9urt. rt\ugust 27, 1870,
·
FEDERAL REPORTER,
vol. 40.
Oliver P. Morton, claiming to be the owner of a certain tract of land, began a suit in this court against. Allen Root, this defendant. to quiet title. On May 8, 1873,.a decree waS entered declaring that Root had no title,.and quieting the title in complainant, directing Root to make a deed to complainant, and, in case of his failure, ll.ppointing Watson B. Smith BSspecial master, and directing him to execute such a deed. Allen Root, the defendant, did not make the deed as directed; and on July 4, 1873, Watson B. Smith, special master, made a deed to complainant, Oliver P. Morton. On June 24,1873, after the date of the decree, complainant, Oliver P. Morton, and wife, deeded to the present complainant, James M. Woolworth, an undivided one-half. On the same day he conveyed the other undivided one-half to William S. T. Morton, and on June 4, 1879, the executors'and executrix of William S. T. Morton, de(leased, conveyed that undivided one-half to the complainant, James M. Woolworth. The present complainant, by this supplemental bill, shows thathe has succeeded to all the rights and title of Oliver P. Morton; that defenl1ant, notwithstanding the decree against him, is asserting title, and has entered into possession of the real estate; and prays for a writ to oust him from the possession, and to put complainant in; and also for an injunction restrl,tining the defendant from asserting any right in or to the premises,or.from occupying the same, ·or any part thereof. Several questions have been raised and argued with great learning by <counsel. It appears that Oliver P. Morton, prior to the commencement -of this suit, had executed a deed to William S. T. Morton, which deed was dated August 19, 1869, and recorded September 15, 1869, in the records of this county; and it is claimed that Oliver P. Morton, therefore, had no title when he filed the bill, and that the decree was obtained by fraud upon the court; that the defendant was not aware of the condition -of the title at the time of the suit and decree, and is therefore not DOW precluded frOIn raising the question. Whatever actual knowledge the defendant may have had from Oliver P. and William S. T. Morton, the deed was recorded, and therefore implied notice, and Root is concluded by a decree against him divesting his title, and vesting it in Oliver P. Morton. But, further, the evidence shows that, prior to filing the bill, William S. T. Morton, the brother of Oliver, c!llled on Mr. Woolworth, the present complainant, with reference. to the title to this propel'ty'and -other litigations; that he produced a writing, signed by the two brothers, the effect of '\Yhich waS to revest the title in Oliver P. Morton; that, by direction of William S. T. Morton, Mr. Woolworth brought the suit in the name of Oliver; that afterwards Oliver confirmed all that had been stated; and that, after the decree of 1873, William was. bere,.and settled with Mr. Woolworth for his services in that case and other matters, and agreed that .Oliver should convey to Woolworth, as 'was done; an undivided one-half of the premises. This testimony does away with au -suggestion of fraud or wrong.. The title which· the Morton brothers claimed was different from the one which defendant claimed,and it wasa matter which did not concern him, in whose name the suit 'was brought, 'providing only a decree could be obtained binding as to the' respecth'e
WOOLWORTH V. ROOT.
725
titles. When his title was declared bad, and theirs good, it was a matter entirely immaterial to him in whose name the decree was rendered. As to Oliver and William, each assented to the proceeding as it was had. Each understood that it was a decree affirming the title which they claimed, and they dealt with the property after the decree as though the title was really in Oliver, and not in William. Some question was made as to the sufficiency of the deed from Oliver to William in August, 1869, because there were no witnesses to it. But I put no stress upon that; the legal title was doubtless conveyed by that deed. The two brothers assented to the suit in the name of Oliver, had signed papers purporting to revest the title, and after the decree recognized the title as in Oliver. There was no wrong or fraud in this, and equity sees nothing of which the defendant can now avail himself to jus. / tify his attempt to avoid the effect of that decree. Again, it is insisted by the defendant that the deed from the executors of William S. T. Morton failed to transfer any title, because the sale ,was not made under the directions of the probate court of this oourity, or in compliance with the laws of this state, with regard to sales of :real estate of deceased persons. Any failure in this deed would not, of course, interfere with the transfer of title by deed from Oliver P. Murton directly to the present complainant, and I know of no reason why such present complainant. could not invoke the benefit of this de.cree, even to protect a one-half interest. But is the deed from the executors incompetent to transfer title? The will was duly probated in In<liana, where the testator resided, and thereafter a copy of the will was filed in the county court of this county, and duly admitted to probate. ·The will not only gives general powers to the executors to execute the will, but specifically provides that they be fully authorized and empowered "to grant, bargain, sell, and convey, and if necessary to mortgage, any and all real estate, and deeds, releases, and mortgages to make and acknowledge, as fully and amply as I could do were I living." Now, this language in the will granted to the executors a power under Which they could convey after the probating of the will, although no previous license was obtained from the probate court. See Clark v. Tainter, 7 Oush, 567; Conklin v. Egerton's Adm'r, 21 Wend. 429, and casescitedj Newton v. Bronson, 13 N. Y. 587; in which it is held that an executor is incompetent to act as such beyond the jurisdiction in which he is appointed, but that, if he be a donee of a power of sale contained in the will, he may execute the power beyond thejurisdiction, because he acts in conveying the land as a devisee of a power created by the owner of the estate, and not undet authority conferred by the surrogate. Finally, defendant insists he has acquired a title by possession for more than 10 years, and alleges that for more than 19 years last past he has been in the actual, open, notorious, exclusive, and adverse possesilion of all of the real estate, and by the testimony he introducl'ls he endeavors to substantiate this claim. He says that he entered into possession in 1869, and has ever since been in possession. He does not pretend that ,the character of his possession has changed, or that,allY no-
726
tice was ever given, to the Mortons or to this complainatit of the title or claim under which he was holding possession since :the 'date of the decree. In other words, he puts before the court a continuonspossession, commencing in 1869, before the rendering of the decree; and lasting until the present time, with no change in the circumstances of such possession, and no notice to the complainant since that decree. Now, if the testimony sustained this allegation of possession, open, continuous, and exclusive, (and it comes very far short of it,) it would not avail the defendant aught. By the decree, and the deed made in pursuance of it,all title and right of possession in Root were transferred to complainant. They were equivalent to a voluntary conveyance by him to Morton. Under these circumstances, no retention of possession was adverse to the title conveyed, and he could not bolster up Ii title based upon that possession until he had first given notice of his ihtention to claim adyersely. These are the substantial questions, and must be resolved in favor of the present complainant. When the matter was before me on demurrer, I ruled that this proceeding could be maintained, and that by this supplemental bill complainant had a right to execute 'the decree. I see' no necessity of reconsidering that question. I understand the rule in equity to be that when once a decree has been rendered the benefit of that decree can be obtained, not merely by the complainant, but by those holding under him. It would be strange that" after a decree had been rendered to quiet a complainant's title, any heir, devisee, or grantee from him should be put to the necessity of an suit for the purposes of securing the benefits of that adjudication. When the decree was rendered 'establishing the title of Morton, and quieting it as against any claim of defendant, that was an,adjudication which defendant was bound to accept as final, unless by suitable proceedirlgs in appeal he succeeded inreversillg it. Instead of pursuing his legal remedy byllppeal, he has Bought in this indirect way to set aside that decree. Equity will tolerate no such proceeding. A decree will be entered as prayed for,enjoining him from setting up any claim to this property, and directing the marshal. to put him out of possession, and restore pos- ' session to plaintiff.
J'ENIONS ". TRAGER·
(Oi'l'OO" 00U'l't, B. D. MisriBsippC. M. D. November 95,1889.
BotnrnARY LntE :l'BTWBBN LOUISIANA. A.ND MISSISSIPPI.
The line of run, b!ld, and marked by Andrew Ellicott, commissioner on the part of the United States, and William Dunbar, commissioner on the of 'Spain, in 1798, was the true boundary line between the territory of the United States and that of Spain prior to the purchl1-se of the latter territory, and Is, Bnd ever since has beent the boundary line. the states of Mississippi and Louisiana, irrespective 01 any mistakes or errors 'in running and ma.rking said line. John Jenkins,.plainti1!.'s,fl!o$er, purchased the land in controversy in 1831, and lDiInediately Weltt into actu!IJ possession. under a deed describing metes and bounds, '
S; PVBJdO LAlfIls-PBEsUMPTION 011' PATENT,ll'ROM LAPSB OF TIME.