35 the such application, an\lproceed thereon and ott such bill of review in the circuit court as the circuit. court may determine; and this prder shall forma part of the mandate in this cause, which shall issue forthwith. HARPER v. HARPER et al. Oircuit Oourt of Appeals, Third Circuit. December 5, 1892.
A bill was filed in the federal circuit COllrt in New Jersey for the cancellation or reformation of an agreement allep;ed to have been fraudulently procured. Complainant set forth that, desiring to constitute his divorced wife his agent for the management of his property, and to make certain provisions for her support. but with no Intention of thereby recognizing any existing marital rights.. but for the sake of conciliation, he requested his counsel to draw an agreement containing such provisions, but. on the contrary. such agreement was fraudulently so written that it constituted in law a separation agreement, which recognized the claims of his divorced wife. and invested her with the power to sign deeds as SUCh. To this bill defendant pleaded that a bill had been filed in the chancery court of New Jersey to restrain complainant from in violation of such agreement. apd for an accounting, etc.; collecting that complalOant answered. admitted the execution of the agreement, but averred that defendant hildfailed to keep up repairs, so that the rents had fallen off; and that in consequence he was unable to pay the annuity provided. for;. that complainant also filed a cross bill, whJch defendants answered ; that a final decree was upon the issues raised,dismissing the cross bill and sustaining the agreement, Held, that the decree of the New Jersey court was conclusive of the validity of"the agreement; for plaintiff was then in possession of all the facts, and might have litigated them in that suit.
JUDICATA-QUESTIONS
MIGHT HAVE BEEN LITIGATED.
Appeal from the Circuit Court of the United States for the District of New Jersey. . In EquitY.' Bill by John Harper against Ellen Harper and Gilbert Collins for the cancellation or reformation of an agreement alleged to have been fraudulently procured. Bill dismissed. Plaintiff brings error. Afiirmed. . John A. Dennin, for appellant. Charles L. Corbin, for appellees. Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge. BUFFINGTON, District Judge. This is an appeal by John Harper from a decree of the circuit court of the district of New Jersey, dismissing a bill filed by him against Ellen Harper and Gilbert Collins. In his bill Harper alleged that in 1882 he had been, by a decree of a Dakota court, divorced from his wife, Ellen Harper. That thereafter he tried to convey his real estate in New Jersey, but was prevented by her setting up a claim of dower thereto. That on consultation with Gilbert Collins, who had been his legal adviser, he was told she had no valid claim, but was advised to make an agreement with her which would constitute her his agent for the management of his realty, but would in no way recognize a subsisting relationship of husband and wife between them; that this would end all disputes. That, relyingori Collins' counsel, he consented to make an agreement
RDERAL REPORTER I.
vol. 53.
Harper should from the rl'lnts of his property an of $1,200 for herself and· their children, and tlte further sum to be by her. used in,:the repair of his houses,.Harper paying taxes and water rents. That, under the belief.and on. the representation that it embodied the terms proposed, Harper, on June 15, 1883, signed the agreement which Oollins drew. That in June, 1887, he found the paper was not that it was a separation agreement between husband atldwife, in the form in use in New Jersey, which recognized the claim&.:of Ellen Harper as his wife, gave her a right to sign deeds as such, and <}.id not require her to use the $550 in repairs. ,'.rhat there had beelli):iser:ted, without his knowledge or consent, a clause making theannllity a lien on certain property on HenJersey Oity, and another for the qf!leeds by ElIell, to bar dower incer.t/1in specifiep real estate. That he supposed Collins had been acting as his counsel, but then first learned thathe.had signed the agreement as trustee for Ellen fB;arper. That agreemenfpfQvided for the substitution of another J)6l'S()nm place of Ellen Harper, at his option, to collect the rents, but instead thereof the power of substitution placed in the agreement was she were'Q.nwAJip:g or unl1ble to act. He therefore, by hjs lQUI, prayed for the. of the agreement, .or. its reformation. ill' accordance with the terms agreed on and specified as above. ,'J.'Q', $.isbill the,defendanfS'l{leaded that on July 1,1887, they had ii;lchancery to restrain ,John Harper from oollOOiljing:the rents of hl$:>realestate in violation ·of said agreement, (a copy of which they anneKoo-to their bill,) prayed' for an accounting bY:NHMl:J,;nd tllat the lienor Ellen I!arper. in the agreement,be established on the'premises specified, and the agreement b;e enforced. That J:QPP Harper appeared, answered the bill, adn;q#ed ,the execution of :the agreement, but averred that Ellen Harper u1\repai!;s,i that t}1e off, and he was therefore unable to pay the annUIty or taxes. That she had refused to join in the conveyance of real estate provided for 'in it, whereby the agreement was forfeited. That John Harper had also filed a cross bill in which he alleged he had adviSed by' Collins and Corbin, his to fix the at $1,750, instead of $1,200; that, on the preparation of the agreement, he found a clause, for securing the annuity by mortgage, which he required should be stricken out, and which he ,$llpposed was done i that on' the substitution of a clause providing for theappointmellt by him of I;jome other person to take cAAfge of the premisefu if Ellen Harper should fail to properly perform her duties, and he supposed itlhad been done; that she had refused to join in a conveyance of premises; and prayed the agreement beset aside and decreed vQid. That to this cross bill an· swers werefUed, which alleged the agreement was. the result of a com· promise; that Oollins and Oorbin had acted as counsel for Ellen Harper; that Harper had acted for himself; denied he regarded them aH his counsel; the terms of the agreement were made between John Harper .and Ellen Harper themselves; that on report of them to. counsel they were fully discussed, and the agreement then drawn; and that jt ;was signed by John Harper and Ellen Harper, after full
HARPER
v.
HARPER.
37
explanation, and after changes had been made at his instance, and others, proposed by him, had been refused by Ellen Harper's counsel. That, on hearing of the issues thus raised, a final decree was made by Hon. Alexander T. McGill, chancellor of New Jersey, on April 24, 1888, as follows: . "First. That the cross bill of the said John Harper against Ellen Harper and Gilbert Collins, her trustee. should be, and the same thereby was. dismissed. without costs, so f",r as it prayed relief against said agreement. Second. That the said agreement bearing date the 15th day of June, A. D.1Stl3. made John Harper, of the first part. Ellen Harper. of the second part, and Gilbert Collins, trustee for Ellen Harper, of the third part, was valid and binding upon said John Harper, and that the same. and so much thereof as provided that the said John Harper should pay to Ellen Harper seventeen hundred and fifty dollars per year for life. for the support of herself and the children of herself and John Harper. and directed the said payment on the two houses, 472 and 474 Henderson street, constituted a valid lien in equity upon said houses for all sums then due to Ellen Harper, and for all sums thereafter to grow due to her under said agreement."
The circuit court "being of the opinion that the plea is well founded . in point of law, and presents a complete defense, to the complainant's bill," sustained it, and on March 22, 1892, dismissed the bill, with costs. This action is assigned here for error. A careful examination of the pleadings discloses nontil. On the contrary, it shows an attempt, under the guise of additional allegations, to raise a second time ltn is· sue which had already been passed on by a court of competent juris· diction, between the same parties. The execution, the validity, the binding force, of this agreement, were passed upon by the New Jersey chancery court. Ellen Harper and Collins, her trustee, alleged its va· liditY,'made profert of it, and prayed specific performance of it byJ"ohn Harper; In his answer Harper alleged she had forfeited her rights under it, and in his cross bill went still further, and prayed it be deL clared void. He then had the opportunity to set up all the grounds of relief on which he bases his present bill. At that time he knew aU the facts he now alleges. He says in his bill he learned them in .June, 1887, and the former bill was not filed until July following. That he llil:Ly not have then presented some phases of relevant evidence, or not in as strong a light; that he may not have stated his grounds of reo lief as fully as now,-----cannot avail him to procure a retrial of substan· tially the same issue in another court. He had the ppportunity of do· ing so; the facts were in his possession; and "in legal theory the conclusive presumption is that all matters susceptible of being presented were passed upon and decided by the court at the time of rendering a jUdgment." Belvidere v. Railroad Co., 34 N. J. Law, 196. To sift the evidence, to· analyze the reasons, which led to it, would avail nothing. The question is not, why was the judgment entered? but simply whether a judgment was entered by a cQurt of competent JURisdiction between the same parties on the same issue. "The allowance of such a plea as is set up in this case is based on the maxim, 'expedit rei· publicae ut sit finis litium;' and the test question is whether the parties had in the former suit full opportunity to litigate the subjectmatter of the present one." Gardner v. Raisbeck, 28 N. J. Eq. 71. Tried by this test, the bill was rightfully dismissed by the circuit
88
FEDERAL REPORTER
,vol. 53.
oourt.The questionsilnvolvedinitiverepassed upon by the chancery eourtof hadjurisdictiono'f thesilbject·matter, and the partieS'vlWere the Samei l ' All questions now raised could have been raised there; In legal presumption, they wel'e.Withthe entering of the judgment by that court, all matters involved in that issue passed, as the partielJ the possibility of litigation afterwardsa:ndelsewhere, ;intO the conclusiveness ofa final decree of that court. "Th.at complete answer to·the present bill, and the ," ".1, ',' "'-,' "J
Ii
In re CERTAIN STOCKBOLDERSOF THE CALIFORNIA NAT. BANK OF , SAN DIEGO. (Dilltrict Court, S. D. November 28, 1892.) NATIONAL BANKS-REOEIVER-SHAREHOLDERS-COMPOUNDING STATUTORY lHDITY. {
LIA-
A federal Court will nqt, even },las the power under Rev. St. § 5234, ' grant an orper receiverQf a national banlt to. compound the statutory liability of 'certain stockholders by accepting payMent of a gross sum, less than is due, in satisfaction and discharge thereof, although more molleywould thus beree.lized than bY,Proceediugs tocollecUhe same in the n,sy.a1:,', W,IloY""w",ll,ell" it appea,rsprobable, such stOCkhol,der,s b,ave fraudulently COnveJ[lld, property to avoid their legal obligations as stockholders, or to shield themSelves from injury and exposure by litigation.
'
M. ,T. .Allen, for petitioner. ROSS, Distriot Ju<lge. This is, an, application for an order of the court anthorizingthe receiver of the California Nationa! Bank of San Diego to compound the statutory liability of certain of itsstockhold· ers. The petition for the order sets forth the insolvency of the bank, the appointment of the receiver by the comptroller of the currency, the qualification of the receiver, and'hisentry upon the duties of his office. It further sets forth that, at the time of the suspension of the bank, 781' shares of the capital stock of the association were owned by certain named persons, in certain stated shares, residing in the states of Maryland and Pennsylvania; that subsequently, it being made to to the of the currency that the assets of the bank were not su:ffici£mt to pay' its liabilities, the comptroller, on the 5th day of May, 1892, levied. an assessment of $100 per share upon each and every share of the stock of the banlt, and directed the petitioning receiver to take the necessary proceedings to enforce to that extent the individual'liability of the shareholders. The petitioner states, upOn information .and belief, that many of the owners of the 781 shares areinsplvent;that nQt more than 40 per cent. of the amount of the assessment against those shares could be collected by process of law, and that such would be at great cost and expense; that among other information furt1ished the petitionmg receiver is that contained in the petition to the; comptroller, signed by H. H. Haines, DavidM. Taylor, and S. R. Dickey, (holders of a portion of the 781 shares of, srock,) a copy of which is attached to the petition of the