700
,EDERAL REPORTER,
substituted to the rights of the original corporation, to call in these assessments, why did not these creditors move? They could have asked and demanded that the assignees should do-what? Proceed at once to make a call. But they did not do it. They filed a bill in 1871, more than five years afterwards, and, for reasons unknown to this court, that was prolonged until 1880, when that court thought there should be a call on the stockholders to meet these demands, and thenthesu bstituted assignees rested until 1884. Under the statutes of limitations, which are statutes of repose, and under the theory of laches in equity, a man cannot patch out, by proceedings of this nature, an indefinite extension of time. As stated by my brother judge, if he can do it for 18 years, or more, he may do it for 50 years. The right of the creditor existed against the corporation at the time the assignment was made. . Why did not he pursue it? He had the right so to do. He never did it. He must take the consequences of the delay.
PILLA
and another v. GERMAN
SOHOOL
ASS'N and another"
{Circuit Court, E. D. Missouri. 1. 2. DESCENT AND DISTRIBUTION-ALIENAGE.
April 24, 1885.)
The law existing at the time of descent cast, governs the right of aliens to inherit realty. . SAME.
Under the Missouri statutes existing in 1860, aliens could not inherit realty. EQUITY PRACTICE IN REMOVED VASE.
3.
Where a suit, embracing both an equitable and legal cause of action, is in· stituted in a state court and removed to this court, and the equitable cause of action stated is held bad on demurrer, the bill will be dismissed, and the com· plainant left to pursue his remedy at law.
In Equity.
Demurrer to bill.
Louis Gottschalk, for complainants. Hem'Y Hitchcock and Hltgo Muench, for defendants. TREAT, J., (orally.) This case, instituted in the circuit court of the
city of St. Louis and removed here, involves some questions which have been presented in part only to the court. The plaintiffs in the suit are a Mrs. Maria Pilla and Maria Parazolt, her husband joining, residents'of France, daughters, as they claim, of one Gabriel Andre, who died in this country in November, 1860, leaving a will. In that will, so far as its provisions are stated, the decedent recited that he had a wife in France, from whom he had been separated; that a son was born a great many years antecedent to the will, who died at the age of 11 months. There were two supposed daughters, to ona of whom he left the sum of one dollar, averring, as I.Reported by Benj. F. Rex, Esq., of the St. Louis bar.
PILLA V. GERMAN SCHOOL ASS'N.
701
the reason for so doing, that she was not his child, but illegitimate. The bill itself does not separate the two daughters who are plaintiffs therein as to which one had been cut off with a dollar, but avers that they are the legitimate daughters, both of them, of the decedent, and they sne jointly for their portions of the estate. It is obvious that if he chose to cut off one of the two, whether legitimate or illegitimate, and made a disposition of his property as to one only, the unnamed one would not lose her interest in the estate; but which was the one? He did not name her. There are two. One has been disposed of by the will; but which one? Without commenting any further in regard to that, it must suffice, for the purposes of this case, that, whether one or the other was the daughter unnamed and unprovided for, the court would not know which was the one until further investi. gation. That would present a controversy among themselves. How could the forms of that litigation arige? Concerning that I have nothing to say, because there is a question that disposes of the case, and which underlies the whole matter. The case of Sullivan v. Burnett, tried in this court, and affirmed by the supreme court of the United States, (105 U. S. 334,) and the Oase of De Franca, 21 FED. REP. 774, decided at the last term of this court by Justice MILLEn, are conclusive, so far as the realty is concerned: namely, that at the time of descent cast, November, 1860, the rights of the parties were fixed according to the statutes then existing with regard to aliens. It is a matter of astonishment to me, however, that while I tried the case of Sullivan v. Burnett, and the act of February 18, 1855, was before me, and also before the supreme court when it passed upon that case and affirmed the judgment of this court, yet the act of November, 1855, was not referred to in that case, and not referred to in this case. If Wagner's Revision of 1870 is a correct revision, I find, without going back to the original statutes, that there was a strange omission on the part of this court, and conseqnently on the part of the supreme court of the United States, to notice that act. Had it been noticed, it would not, however, have affected the rellUlt. The act of February, 1855, so far changed the old law that an alien could not inherit realty; as to permit the alien to take and sell within three years after the death of the ancestor. Subsequently, a statute was passed, and that is the act to which I refer, and to which no allusion is made, either by this court or the supreme court, in the determination of that case, to-wit, the act of November, 1855, concerning the time within which they might dispose of the property, which, but for alienage, would descend in fee to them, limiting the power to sell it to three years after administration had. That was the condition at time of descent cast. Then, taking the most liberal view for these plaintiffs of the statutes then in force, what is the reBUlt? Gabriel Andre died November, 1860; at that time he had tWi"' married daughters in France; the administration was closed in 186ti; these daughters did not move with respect thereto until March) 1884.
702
FEDERAL REPORTER.
Under the most liberal construction that could be given to these statlItes, the right of these parties to sue, so far as the realty was concerned, ended three years after administration, to-wit, in 1871; hence any rights that they might have had, under the statutes, pertaining to realty here, ceased in 1871. But the structure of this so-called bill caUs for a great many exceptions, which may be disposed of by a simple comment. Proceedings were instituted in the state court, where legal and equitable matters may both be pursued in the same case. These parties claimed their supposed interest in the realty, but after the remarks already made, it will be seen they had none. They also claim an interest in certain personalty in the hands of the residuary legatees, namely, $4,000. Now, if they sued at law, the statute of limitations might be interposed; if they sued in equity, the doctrine of laches. But the bill being one of those mixed bills, it comes here without having been reformed. It should have been reformed to comply with the equity rules of this court. That, however, would be a mere matter of formal proceeding; because leave would be granted for the parties to make such changes pertaining to the form as would preserve their rights under the equity rules prescribed by the supreme court. But there can be no phase of the case which would bring them here on the equity side of the court, under what has already been said, namely, that they have no interest in the realty at all. Consequently, if they are not barred by the statute of limitations, their remedy is adequate at law for money had and received. The result is that this bill, as it stands before the court, is undoubtedly defective, not for form only, but for substance. Eliminating the realty from this controversy, there is nothing left but an ordinary money demand; and plaintiffs must sue at law for that. The case that went to the supreme court, (of Sullivan v. Burnett, 105 U. S. 334,) and that of De Franca, decided at the last term, Justice MILLER giving the opinion, are conclusive so far as the realty is concerned. As to a demand for money had, it is to be pursued by an action at law. It is for the parties to say whether, with the statute of limitations before them, they choose to bring a proper act,ion with regard to the money demand, or leave the matter as it is. The demurrer is sustained, not for technical objections which have been presented, and which it would be very proper to consider had there been an original bill filed here, (but as this is a removed case, any such objections could have been cured by reforming the pleadings.) Under the facts stated,-and I suppose there is no dispute in regard to them,-the parties are entirely mistaken as to the realty, and if there is any demand for the personalty, that is to be pursued at law. Demurrer sustained, and bill dismissed.
CENTRAL TRUST CO. CENTRAL TRUST CO.
V.
TEXAS
&
st. L. BY. CO.
703
TEXAS & ST. L.
By. CO.I
In re WATERS
PIERCE
OIL Co., Intervenor.!
(Oircuit Oourt, E. D. Missouri. April 8,1885.) 1. RAILROAD LIENS-OILS-REV. ST. Mo.
+3200, OONSTRUED. Lubricating and illuminating oils are not" materials." within the meaning of section 3200 of the Hevised Statutes of 1tiissouri, and parties turnishing them are not entitled to any statutory lien.
2. MORTGAGES-MATERIAI.-MEN-EQUITABLE LIENS.
Where materials necessary for use in the management of a railroad were furnished from time to time fmm October 17, 1882, to January 10,1884, inclusive, and two notes were given for a part of the amount due therefor, dated, respectively, October 15,1883, and December 12,1883, both due fOlIr months after date, and the milroad defaul: ed in the payment of its bonded interest, September 1,1883, and a receiver was appointed January 12,1884, and the materialmen filed their claim for the whole amount due, and surrendered their notes for cancellation, held, t.hat they were only entitled to an equitable·lien superior to that of the mortgagees, for the amount due for materials furnished after the railroad company's default.
Exceptions to Ma.ster's Report. The claim of the intervenor in this case is for a balance of $2,861.91, due it for lubricating and illuminating oils furnished the Texas & St. Louis Railway Company, at various times from October 17, 1882, to January 10, 1884, inclusive. Two promissory notes executed by said railway company, on account of part of said indebtedness, one for $1,376.76, and dated October 15, 1883, and the other for $1,844.04, dated December 12, 1883, both payable four months after date,-were surrendered for cancellation. It was conceded that the oils were necessary for use in running the road. Default in the payment of interest took place September 1, 1883. A receiver was appointed January 12, 1884. The intervening petition was filed April 5, 1884. The intervenor claimed a lien under the Missouri Statutes, which provide (Rev. St. § 32(0) that "all persons who shall do any work or labor in constructing or improving the road-bed, rolling stock, station-houses, depots, bridges, or culverts of any railroad company incorporated under the la.ws of this state, or owning or operating a railroad within this state, and all persons who shall furnish ties, fuel, bridges, or materials to such railroad company, shall- have .. · · a lien," etc. The master reported that the intervenor is not entitled to any lien under said statute, because oils are not materials, within its meaning; but ig entitled to an equitable lien for all oils furnished since the railroad company defaulted in the payment of interest. W. R. Woodward and J. D. Johnson, for intervenor. Phillips cf: Stewart, for receiver. Butler, Stillman cf: Hubbard and Eleniou8 Smith, for complainant. 1
Reported by Benj. F. Rex, Esq., of the St. Louis bar.