M1ELMURRAYt1. LOOMIS.
395
paid thereon, with 10 per cent. interest from the date of the purchase, attempted to redeem 75 acres of the land, and Blackshear, the purchaser, executed to him the following receipt: "Received, Thomasville, June 23, 1877, from Isaac M.Aiken, eighty cents, in full for his state and county tax, with 10 per cent. interest on same to date, for an exemption of 75 acres on Heard's island. [Signed] "THOMAS E. BLACKSHEAR." The defendant then applied for and had set apart to him the homestead exemption above referred to. On the twenty-fifth day of December of the same year Blackshear also executed to the p.4tintiffs his deed conveying the entire tract to the plaintiffs in consideration of $43 for taxes he had paid for Aiken at the tax sale. It is insisted by the defendant that Blackshear held this land, under his tax purchase, simply as a trustee for Aiken; and that Aiken having the real equity in the title, his homestead should have prevented the sale under the mortgage fl. fa. of the Townsend Saving Bank; and for that reason the purchasers under the foreclosure sale, who are the plaintiffs here, took no title. It is true, possibly, that the defendant, in respect to these facts,has the right to complain of Blackshear's conduct, viz., that, when he paid the sum of 80 cents to Blackshear, the latter, if he regarded that amount as an adequate sum to redeem 75 acres, ought to have executed a reconveyance, conveying the title to Aiken. But it is also true that the receipt which Blackshear did execute does not, under the law of Georgia, pass the title. Now, the controversy here is upon the legal title. In the courts of the United Statesan equitable defense cannot be heard to defeat the legal title in an action of ejectnlent. The plaintiffs also purchased and took a deed from Blackshear of his title purchased at the tax sale. The fact that he may have been under obligation to permit Aiken to redeem 75 acres cannot defeat his subsequent deed to plaintiffs. His bad faith would give the defendant a right of action against him, but that is not involved here. Not having the title to the land covered by the homestead, the homestead must fail, as against the title of the plaintiffs, and the motion for a new trial is overruled.
McELMURRAY
'IJ.
LoOMIS.
«(Jinocult Oou'rt, 8. D. Ge()7'gia. 1. 2.
w: D.
July 8,1887.)
WIDOW'S ALLOWANCE-PARTIES TO APPLICATION.
In a proceeding to have set apart a year's support for the widow of an in· testate, the administrator of the estate is a necessary party.
Where a non-resident creditor of the estate resists the application, and re' moves the entire proceeding to the United States court, it will be remanded; where the administrator is a resident of the same state as the widow. (8gUalYu81J1I the Oou'rt.)
REMOVAL 011' CAUSES-CITIZENSHIP. ,
30G
FEDERAL REPORTER.
Motion to Remand. Hardeman & Davis. for applicant. GlUftin & HaU, for defendant. SPEER, '1. This is an application for a year's support, made by Mrs. S. R. McElmurray, to be set apart to her out of the estate of her inteetate. It is conceded that the estate is represented by an administrator, who with the applicant is a resident of this state. A creditor of the estate, William M. Loomis, who is a non-resident, contests the propriety of the application, and insists that the amount set apart to her by the commissioners unqer the statute is too great, and, having filed his contest in the court of ordinary, removed the entire proceeding to this court, to be determined here, because of his supposed rights growing out of his
N<?w, it is tru.A that where thereis a party defendant who is a citizen of another sta.te, and there is.another necessary party defenda.nt who is citizen of the state with the plaintiff, the cause is not removable. The administrator here is a citizen of the same state with Mrs. McEI. murray, the applicant; and that leaves the only question to be determined by the court, is the administrator a necessary party to tbis application? An estate in the hands of an administrator is, in a certain sense, a trust-estate. He is the trustee appointed by the law to represent all of its interests, and unquestionably it must be regarded as settled that, in any proceeding affectingiis integrity or its amount, he is it necessary party. Besides, be is expressly made a necessary party by the statute! in that it is required that notice of the application be served on him. For what purpose is this notice served, save to make' him a party? I think, too, the administrator is a necessary party, because his presence is essential to make the judgment against the estate valid and binding. If I had doubt about it, I would hesitate before I woulq entertain jurisdiction of a question of this sort, where the subject-matter is peculiarly prqper to be determined by the courts of the state, and by a particular court. In this case the application for a year's support is to be determined by the court of ordinary of the county which has the proper original jurisdIction. Oommissioners are to be appointed who are citizens of the. vicinage, and presumably their action could not so well be passed upon in the courts of the United States. Besides, the application of the widow for a year's support is a mere incident of the administration,· and it is not to be expected that this will be segregated from all the other matters in the management of estates pending in the local courts, and carried to the United States court. Such a practice would impose great inconvenience and expense upon a class ordinarily little able to litigate at a distan0e from their homes, aind would be a hardship not conte1pplated, I think, by the statute providing for removals. But since clearly the resident administrator is a necessary party, I remand the cause for that reason.
397
In
reC.A.RNES.
n
(Oirc'ltit Oourt, 8. D. Georgia, lV, D. June 28,1887.)
That one summoned as a juror in the United States courts was an officer of the navy anterior to the late war; that he resigned, lliI!d thereafter served in the COnfederate army; and that his disabilities have not been removed,"":"will not support a personal claim for exemption from jury duty. {Syllabu8 by the Court.)
JUROR-EXEMPTION-DISQUALIFIOATION-F:E:DERAL COURTS.
W. W. Carnes, in propria persona. No counsel contra. SPEER, J. W. W. Carnes was summoned as a tales juror by special venire, returnable this day. 'He protested, twheh'about to be sworn, that he is not liahle to perform jury duty in the courts of the United States. His name was drawri. regularly, and appears on a revised list of jurors of the circuit court filed at this term. The reasons he assigns are that he was an officer of the United States t1li'Vy (a for 'midshipman) anterior to the late war, and that he resigned and,took service with the Confederacy, commanding a battery of artillery in its army, and that his disabilitiell consequent upon such action have never the been removed i that he can hold rio office Of profit or trust government, and should not be compelled to serve as a juror. The 01J.. jection must be overruled. ,Capt. Carnes is a resident and 'Citizen by birth or the United States of America, having their protection, and enall of the enlarged and liberal advantages of such citizenship. Should his rights be infringed by any other nationality, the government would extend to them the same jealous and watchful supervision that another citizen would have under similar citcumstances. It is altogether anomalous, and not to be permitted, that, enjoying these privileges, he "nauld be exempt from jury duty because of any action of his during the late war. If he could for this reason 'decline to serve on'theJllrles, he might, with the same propriety, decline to serve in the armies of the ..:ountrYi and thus would be presented the extraordinary spectacle of a citizen excused from defending hisgovernmellt because previously-he had been in armed resistance to it. The government might raise this 'iuestion, but does not do so. The juror is known to be a man of exemplary character, and now devoted to the UniolJ.and constitution: of the United States. Besides, the Revised Statutes, § 800, provide that jurors in the United courts shall possess the same qp"\ifications, and be e11titled tat}le same exemptions, as jurors in the state col,1rts, and no other, and'iris not disputed .that Capt. Carnes. is qualified to serve as a juror by the laws of Georgia. This statute operates as a repeal of his disabilities, 80 furas aervice as a juror in the United States courts is concerned.. I hold that .while, Carnes has not thought pr()per t() apply for the removal of his disabilities, he may not be permitted to hold offices of trust aqd