S-;-2
FEDERAL REPORTER,
was sold by the railroad company; that said comp;tny has retained the proceeds of said s.ale; that the intervenors were engaged with said company in investigating the cause of the loss of said grain, and in negotiating for the purpose of effecting a settlement of their claim from the time of the 10s8 until the appointment of a receiver herein; and that on March 24, 1884, said company offered to compromise the claim for 50 cents on the dollar. The receivers herein were appointed May 28, 1884. The master reports that the intervenors are not entitled to recover the full value of their grain, but recommends that the receivers be ordered to pay, out of the rents and profits of the property in their charge not otherwise !tppropriated, the amount realized by said rail. road company from the sale of said grain. The receivers except to the master's report, (1) because the finding is against the law; (2) because the finding is for the intervenors; (3) because the sum allowed is allowed as an equitable lien. The intervenors also filed exceptions. Robert et Hitchcock, for intervenors. Well8 H. Blodgett, H. S. Pric8t, and Geo. S. Grover, for receivers. TREAT, J., (orally.) In the intervening petition of Boutwell & Son, the intervenor excepted to the report of the master. The exceptions will be overruled. There are three exceptions filed by the receivers. The third exception will be sustained; the other two over' ruled. The effect of this is that the amount for which the Wabash Company should have responded in 1881 is allowa,ble against the Wabash Corporation, as a corporation, and not against the receivers, or the funds in their hands earned since their appointment, to be made prior in right to the mortgages. It is nothing but a debt at large against the corporation, and not prior in right to the mortgages.
WILLIAMS and another v. MORRISON and another. J (Circuit Court, E. D. Missouri. 1. LICENSE-TENANTS IN COMMON-QUARRIES ·
October, 1886.)
.A. license to work a quarry, given by one of several tenants in common, is valid.
2. SAME-LICENSE. HOW TERMINABLE. 3. TRE.'lPASS-REPLEVIN.
Such a license is terminable on notice.
A trespasser who takes stone from a quarry, and leaves it upon the premises. cannot "eplevy it in case it is seized by the owner of the land.
'Edited by Benj. F. Rex, Esq., of the St. Louis bar.
WILLIAMS V. MORRISON.
873
4. ACCESSION AND COXFUSION OF GOODs-REPLEVIN-JURISDIC'l'ION.
Where an owner of personal property mixes it with property from which it cannot be distinguished, and which belongs to another, and is in the hands of a sheriff under a writ issued by a state court, it cannot be recovered in a suit brought in this court.
5.
SAME-PAVING STONES.
Where A" the owner of a lot of paving stones, mixed them with similar stones belonging to B" and the whole lot was seized under a writ of replevin in a suit pending in a state court, held, that if the stones originally belonging to A. were not included in the process, and their number could be ascertained, A. could recover them, or their value, in a replevin suit instituted here; but not otherwise.
6.
REPLEVIN-PROCESS-WHAT INCLUDED IN.
7.
Where a writ of attachment in a replevin suit described the property to be seized as "all the granite paving blocks" on a certain piece of property. with certain named exceptions, and stated that "the said blocks not herein excepted number about twenty-five hundred, " held. that all the blocks there, not expressly excepted, were included, :Whether more or less than the number named.
SAME-AsSESSMENT OF VALUE OF PROPERTy-MISSOURI STATUTES;
In a suit to recover property seized under process in a replevin suit, and de: livered to the plaintiff therein upon his giving bond, in accordance with the provisions of the Missouri statutes, the jury should assess the value of the property seized.
At Law. Replevin suit for 10,000 granite paving blocks seized under a writ of replevin, and delivered to the plaintiffs upon their giving the utory bond. A writ had been duly issued from the office of the clerk of the circuit court of Wayne county, Missouri, a court of general jurisdiction. It described the blocks to be seized as "all the granite paving blocks now on" a described lot, "except a certain pile of granite blocks at a certain switch," which had been theretofore replevied, and stated that the blocks not excepted numbered "about twenty-five hundred." The writ in this court covered those seized under state process. The case was tried before a jury. Oharles A. Davis and O. D. Yancey, for plaintiff. Frank M. Estis, for defendants. TREAT, J., (charging }ury orally.) The caRe you are now called upon to consider differs in many aspects from those ordinarily presented to a jury. This propel'ty,-I mean the real estate, including this mine,-it seems, belonged to Mr. Lawrence, either individually, or to him and Mr. Morrison as tenants in common. As to the use of said property, either one could give a license. It did not require their joint assent thereto. It would appear from the testimony as offered that there was some proposition pending for a lease of this property to several parties, one of whom was Mr. Williams. That lease never was executed. In the mean time Mr. Williams and some others proceeded to quarry. A lease having been subsequently executed to Mr. O'Keefe, notice was given by him to these parties to leave the premises. If it was a mere license on the part of the owners of the property, it waa ter-
874
FEDERAL REPORTER.'
minable on notice. Now, if these parties afterwards proceeded to quarry, and then the property was not removed from the premises, and it was replevied under process from the state court, this cause of action will not lie. Further than that, if, after the process issued ill Wayne county, these parties continued to quarry, and mix the new blocks and old ones so as to produce what is called in law a "confnsian" of property, they cannot recover. The particular element of the case is-First, did these parties have a license to quarry uuder the rule as just stated? If so, was that license revoked? Second, was all the property included in the replevin suits in Wayne couuty? Third, if not included in precise terms, were there added to these respective piles other blocks which could not be clearly distinguishable when the officer went to serve the process on them? It is most important that it shQllld be understood (and that is the reason this court directs your a.ttention especially thereto) that, where process is pending in a judicial proceeding in a state tribunal, this coi.1l't eMefully refrains, under ther,ules of law, and is bound so to do, frorn interf6ring with those judicial proceedings. It is also the duty of a judge on the United States bench to promptly repel any effort on the part of a state court or state officer to interfere with any matters in the custody of' the United States marshal; and this court is bound to see that no interference is had with the state court. Now, if it should turp out, in your judgment, that there were some of these blocks whicpthe marshal of this court has taken which were not included in the process in Wayne county, the number' of which you can ascertain, then the plaintiff is entitled to recover therefor; but if you way that they cannot, ascertain, and they were piled up in such could not be ascertained, then the plaintiff must suffer the consequences, after having had full notice with regard to these matters of mingling blocks with those that were a.h·eady in the custody of the law. That doctrine of "confusion of things," as it is termed, is very simple, and one resting on common sense of the plainest kind. If a ma.n mingles his things with mine, so that no one can separate the one from the other, and I take possession of what belongs to me the hest way that I can, that is, under the circumstances stated, if they cannot be separated, I take the whole. Now, if there were any of these blocks not included in the process of the Wayne county court distinguishable, then the plaintiffs can rewere licensed to do this work. But that amount cover therefor if should be ascertained, and the value thereof. If, on the other hand, they were piled up with the other property, which had already been taken pqssession of by the sheriff, then the 'plaintiff cannot recover. If he was there as a naked trespasser without license from anybody, he cannot recover; fOr the property still remained on the land, and, for the purposes of this case, was a part thereof. Whatever your verdict may be, gentlemen, it is neces.sary, under this particular form that you shall find somewhat specifically either for the of
a
.,1
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.
SHIl:I,LEY 'C. ST. CHARLES CO.
875
plaintiff or for the defendant, as the case may be; but you shouhl assess the value of the property taken whichever way you find, because, if the plaintiff is not entitled to recover, the statute means that he shall return the property or its value. Hence it will be a necessary part of your verdict to ascertain what the value of the property was·. There is one other matter to which I wish to call your attention. In this Wayne county proceeding it is stated "all the blocks" on certain property named, with the exception of such as had been lheretofore seized in an antecedent replevin suit. The number is a suggested number, being about 2,500; so that the sheriff or officer was to take all the blocks that were piled up on a certain tract of the petitioner, estimated to be 2,500. When the sheriff seized the property, he says he has seized "9,500 granite paving blocks, more or less;" so that the precise number does not determine the matter. The proceeding required him to take all there.
SHELLEY
ST.
CHARLES CO.l
(Ot'rcut't Oourt, E. D. Mt'ssouri. October 16,1886.)
1. 2.
TAXATION-SAJ,E-PunCHASER.
An innocent third party, who purchases at a tax sale, takes free from taxes then due.
SAME-PURCHASE BY OWNER.
Where an owner of property, knowing that taxes levied upon it are insufficient for the purpose of the levy, and less than required by law. allows it to be sold under a judgment for such taxes, and buys it in to escape paying what is justly due, another tax may be levied upon the land to ma!{e up his deficiency.
This is a proceeding by mandnmus against the judges of the county court of St. Charles county to enforce the satisfaction of a judgment recovered in this conrt upon certain bonds and coupons issued by St. Charles county, under certain acts of 1869 and 1870, for the improvement by drainage of certain lands lying in said county known as the "Marias Temps Clair District," and to that end compel the levy of a sufficient tax to pay said judgment-less the amount of $1,687.50, already paid thereon-upon the lands designated in said district. The alternative writ recited the recovery of judgment; the acts under which the bonda and coupons in judgment merged were issued; the duty enjoined thereunder upon the county court to levy, upon the lands designated, taxes sufficient to pay said debt; the failure of said court, which it is alleged managed the financial affairs of sfI,id county, upon due demand made 80 to do; and commanded the JReported by Bellj. F. Rex, Esq., of the St. Louis bar.