, FEDl£j1AlJ. REPORTER,
vol. 40.
..
'The act of 1885 'Confers jurisdiction on in spooialcases,and'over particular subjects; that of AtIguW1S, 1888; is.gertetl'll in its cha:rMter. Effect maybe given to both, 'both: may' stan.d witHout violating .any rule of statutbrr construction. The, August 13, 1888, does not repeal the former law, andjuriscHction ofth,e ,circuit courts as conferred by the act of Feb. ruary28, 1885. Rfollows that the demurrer to the jurisdiction must be overruled, and it is so ordered'. Q{ "penal
TEALL'
et·al.
ft. SLAVEN
et al.
(O£rcuitOouTt, N. D.OaZ'ifornia. December 80, 1889.)
L
.
EQUITY-JURIBDI(JTION-FRAUD:""OAN!lELLATION OF INBTRUMENTB.
There may often be a remedy, at law, for fraud, but where it iB deBirable to remove a cloud from the title to real 'eBtate by decreeing a cancellation of a fraudulent conveyance, .that remedy, being, more complete, courts of equity will take jurisdiction,. and grant appropriate relief; , , OF ACTIONS-DIBCOVERY OF FRAUD.
9.
In providing for limitations, of 'actions founded on fraud, the legiBlature bas adopted the principle establiBhed1;ly courts of equity, that the cause of action shall not be, deemed to have accrued until tbe "discovery oftbe facts constituting the fraud;" aud to asCertain what oonditions constitute a discovery, within the meaning of Buch statutes, the principles' establisbed in equity jurisprudence, whence the idea was derived, must be applied. " The establisbed as ,to tbe disoovery of fraUd, are: That the party must be diligent in making inqUiry; tbat means of knowledge are equivaleut to knowledge; that a olue to the facts; whioh if diligently followed would lead to a discovery, is, in law. equivalent to a.disoovery. Where a deed alleged to be fraUdulent, bearing evidence of fraud upon its face bas been duly recorded upwards of 80 years, it affords just as strong evidence fraud to the parties defrauded, as it doeB to subsequent purchasers. As to the parties defrauded, the question, of what the reoord imparts knowledge, is not as in the case of subsequent purohasers, a question of statutory oonstructive notice, but of diligence. , , '
.. BAME-NoTICE.
4. BAME-RECCRD OF FRA.UDULENT DEED.
I.
e. f.
Where a bill to annul a oonveyance on tbe ground of fraud is filed, more tban 80 . veal'S after the performance of· the acts of fraud complaiued of; and,in order to bring the CI1se within the ·statutory exoeption, it is alleged, that, "the aots constitutingthe fraud" have only been.discovered within 8 years before the filing of the bill, it is, also, necessary to set forth in ,the bill, specitI.Cally, what the impediments were to an earlier proseoution of the olaim; bow the complainant came to be so long ignorant of his alleged rights; the means used by the respondent to keep him in ignoranoe,.and how he first came to a k;nowledge of his rights. The non.residence and oontinued 'absence of the complainant from the state does not excuse a want of diligence inasoertaining his rights. SAME-FACTS IN SUIT. . ,,".. ' .
It is·alleged'inthe bUl, tbat T., a oitizen and resident'of New York owning land in California,exeouted apcwer of attorney to D., tc take exclusive possession and control of the same, and to sell snll oonvey it at his disoretion, whioh power of attorney·was duly recorded and remained unrevoked till 'the death of T., on Angust 12,1857; thataflier the death ofT;, on September 17, 1857, D. by virtue of said pcwer of attorney executed .in the name of P. a conveyanoe expressing a oonsideration of tfj,OOO, to R., ofa large amount of said real property situated in the oity of San Jos6, the said oonveyance1;learing date August 1, 1857, 11 days prior to the death of T··
. '
TEALL II. SLAVEN.
175
that on the same day, for a like consideration R. conveyed the same property to D., by deed bearing the same date; that said conveyances were made without consideration, and for the fraudulent purpose of enabling D. to appropriate said property of 1.'. to his own purposes; that said conveyances were acknowledged on ' September 17, and recorded on October 3,1857; that the numerous respondents are grantees direct, and mesne, from D., and that they purchased with a knowledge of the title of T.; that D. in his life-time, and respondents, and their grantors, since D.'s death in 1876, concealed, these fraudulent acts from complainants. a portion of the heirs of T., who have always lived in the state of New York and never have been in California, and that they did not discover these fraudulent acts until some time in the year 1887, a short time before the commencement of this suit. Held, (1) that the suit is barred br the statute of limitations of California; (2) that the cause of suit is stale, and wi! not be enforced within the established principles of equity jurisprudence; (8) that during the 82 years that have elapsed since the death of T., and the 14 years since the death of D., presumably the only parties who' knew their relations to each other, and to this land, no sufficient diligence has peen exercised by complainants to preserve their right of suit; and (4) that the impediments to a prosecution of the rights of complainants; how they were so long ignorant of them; the means of concealment adopted by, respondents, and, how complainants first came to a knowledge of their rights, are not sufficiently set out, in the bill. (SyUab'u8 by the Court;)
In Equity.' On demurrer to the second amended bill. This is a bill filed by three parties claiming to be a portion Of the heirs at law of Oliver Teall, deceased, and entitled to three-fifteenths of the property in question, agaim't many defendants, said to be 836 in number, to set aside a conveyance from said Oliver Teall, by his attar'; ney in fact, Davis Devine, to A. L. Rhodes, and a conveyanpe from A. L. Rhodes to said Davis Devine, made in 1857, on the ground of fraud, and to compel a conveyance of their undivided share of property, which consists of a large number of lots, said to be 1,000 or more; situate in the city of San Jose. The other heirs, with one exception, who is made a defendant, declined to join, ahd for that reason are not made parties. The bill alleges, that, the deceased, Oliver Teall, in 1852, made a power ofattorney to Davis Devine, giving him full power to take possession of, and to control and sell all real estate owned by said Teall in San Jose, which power of attorney was duly acknowledged and recorded on March 16, 1852; and that it continued in force and unrevoked down to the time of the decease or'said Teall. That said Teall died August 12, 1857; that on August 1,1857, and down to his death, Teall owned the property in question; that at a date unknown, but by a deed bearing date August 1, 1857, said Davis Devine, as the attorney in fact of said Teall, purporting to act under the said power of attorney, conveyed said property to one, A. L. Rhodes, and thereupon, on the same day, said Rhodes conveyed the same to said Devine; that the several deeds of conveyance expressed a consideration of $5,000 each, but that in fact no consideration was paid by either; that the conveyance by Devine was not authorizedby Teall, but was made for the fraudulent purpose of obtaining the property Jor himself; that the conveyances, although bearing date.August 1, were not, in fact, executed till September 17; 1857, on which day they were acknowledged; that they were recorded on OctGber 1857, and are still of record; that the defendants in this case are in possession of theh respective portions, either under conveyances direct, or mesne, froInsaid Devine, 'l'naete subsequent to the record oj said pretended,
178'
FEDERAL REPORTER,
-and fraudttlent conveyances; or as heirs or devisees of said Devine; that "said possession was taken by said defendants, and each of them, with full notice ofthe title of su'id Oliver Teall, and his heirs to said premises, and 'Of the relation of principal and agent subsisting between him and said Devine, as heretofore averred a,t the time of the date of said pretended and fraudulent conveyances, and are not purchasers of said premises or any part thereo!,ingoodJaith and for value." This it will be observed, is somewhat indefinite and evasive, as it merely alleges that at the date of those conveJ'ances, the parties knew that Teall owned the property, and the relation of'the parties, but it does not aver squarely that they or any of them knew that the conveyances were made without consideration for a fraudulent purpose, unless it can be inferred from the averment of the legal conclusion, merely, that they were "not purchasers in good faith." The hill, also, avers that the land was within the pueblo of San Jose, and was confirmed to the city for the benefit of its grantees; that a patent was issued to the city on June 4, 1884, and that a portion has already been conveyed by the city of San Jose to some of the defendants, and the legal title under the patent to the remainder is still vested in the city. In the second amended bill are the following additional allegations: That .complainants are natives and citizens of the state of New York; that they have always resided in said state, and were never in the state oj California; that Devine died in 1876, and during his life, and after the death of Teall, he "carefully concealed the truth of the facts, as alleged, from complainants, and falsely represented to them, that the said Devine was the owner of the property described," and after Devine's death, his heirs and others claiming under him, "concealed the truth from the complainants, and persistently, falsely, and fraudulently represented to claimants that all of said. property belonged to said Devine in his life-time;" and all on record at his'death belonged to him; "that none of complainants bew of said conveyances. to-wit; said conveyance from Davis Devine as agent of Oliver TeaU to A. L. Rhodes, and said conveyance of A. L. Rhodes to Davis Devine, until the year 1887;" and "that the said false andfraudulentrepresentatio1U! made by said Deville and by his widow, and by their agents, etc., were believed by the complainants to be true, until the year 1887, when they were informed and became cognizant of the truth, as herein set forth in their bill of complaint." J. B. Lamar, J. E. Foulds and W. H. Castle, for complainants. Estee, Wilson & McCutchen and S. F. Leib, for respondents. Before SAWYER, Circuit Judge. . SAWYER, J. The foregoing statement contains all the allegations of the bill in any way affecting the points at issue, after having been twice amended: and as the bill is unverified by the oath of any person, it must be presumed to state the case of the complainants as favorably to themselves as the facts will justify. The defendants demur, and rely mainly upon four points: (1) That the complainants have a complete remedy at law; (2) that the cause of suit is stale; (3) that the suit is by the statute of limitations of California; and (4) that the facts
TEALL ". SLAVEN.
777
are insufficient to constitute a cause of suit, and there is no equity in the bill. As to the first ground it is urged, that if the conveyance from Devine to Rhodes, under his power of attorney from Teall, was not executed till after Teall's death, as alleged, then it was utterly void, for want of authority, for the power of attorney was, necessarily, vitiated, or revoked in law, by the death of Teall, and this could be shown in an action at law to recover the lands. Hence there is no necessity for going into equity, as there would be a full, speedy, and complete remedy at law. Fraud can often be made available at law, as well as in equity; but it does not follow that the remedy at law is as complete, as in equity. Thus, in this case, suppose a recovery should be had at law, by showing that these conveyances are void upon the ground alleged, the conveyances would be still outstanding of record, uncanceled, and the apparent title of record would still be in those holding under them. Th01.1gh fraudulent, they would constitute a cloud upon the title. Fraud has always been one of the principal heads of equity jurisdiction, and in this case, in order to afford a complete remedy for the fraud alleged, it would be necessary to decree the conveyances to be fraudulent, and cancel them, or compel a conveyance of the apparent title in defendants to the parties entitled. No other remedy would be adequate. This point is therefore overruled. But the points that the cause of suit is stale, upon the well-established principles of equity jurisprudence; and that the suit is barred by the statute of limitations of California, which is applicable to suitsin equity, as well as to actions of law, and will therefore be enforced. in the national courts, I think are clearly well taken. The principles that govern, are applicable to both points, and I shall briefly consider them 10gether. The complainants insist, that, this is a suit "for relief on the ground of fraud," under section 338, Code Civil Proc., which is barred in three years. But the fourth clause adds: "The cause ofaction in such case, not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud." The complainants urge that they did not discover the facts till 1887, and that they are, therefore, within this saving clause. This provision was imported into the statutes of limitations from the equity practice of restraining the setting up of the statute in actions at law, founded upon fraud, under similar circumstances, until the time had elapsed after the discovery of the facts, constituting the fraud. See Ba.nk v. Kissane, 13 Sawy. 2, 32 Fed. Rep. 429; NorriJJ v. Haggin, 12 Sawy. 53, 28 Fed. Rep. 275. I had occasion to consider this whole subject very fully in the last case cited, in which I said: "To ascertain of what acts a discovery of the fact.s constituting the fraud affording the ground for relief consists, we must go to the pl'inciples established in eqllity law. whence the idea was derived. The settled principles on thIs point are, that the party defrauded must be diligf>nt in making inquiry. that the means of knOWledge are equivalent to knowledge; that a clew to the facts, which if followed up diligently, would .lead to a discovery-is, in law · .· · equivalent to knowledge. In stating the policy of statutes of lim-
and in these principiI's of 'Mr, 'Justice SWAYNE, speaking for the court, in Wood v. Oa1'Penter, supra, [101 U. S. 139] together with mucbmore to the point, said: · StatutesofIimitation ate vital to the' welfare of society, and are favored in the law. They 'are found and approved in :alr systems of· enlightened jurisprudence. They promote:rppose, by giving security and stability tahuman affairs, An impOl'tant p\lblic policy lies llrt-theil' foundation. They stimulate to activity and punishnElgligence. While time ia, constantly, destroying the evidence of rights; they supply its \>y presumption, which renuers proof uuneces:sary. Mere delay, extending to the limit prescribed,'is itself, a conclusive bar. The bane and the antidote go together.' · · · · It will be observed, also, tbat:there is no averment that during the long period over which the transactions. referred. to, extended, tlJe plaintiff ever made or caused to be made the il\quiry in relation to either of them. The judgments confessed were 'of and he knew it. It could not have been difficult to ascertain, if the . &0, that they werb8ham8. The con'veYances"to Alvin and Keller wereijHio on 1'ecord in the proper offices. If they were ill trust for, the defendant, as ilUeged,prope.r diligenee cOuld not have/ailed to find a clew in 81iery (lase'that would have led to evidence not to be resisted. .WUh the 8trongest : motirie4, aetton, the was. B:Upine. If ttnd(jr.lying frauds ea;isted, a8 he 'fWtn-mg to unearth them. Jt'rpas Ms duty tlJ make the effQ1't. , . The dillPovery of tbecl\use ,of action, if such it maybe .-termed, is 'tllusset forth:. plaititif): further. avers, that he had no "kno'Wledgeof.tlie facts 80 'concealed by the defendant ,until the year A.D. . 1872, and a few weeks onIybefore thebi'ingingofthis: suill,''' There is nothing further upon the subject. II< II< · "Whatever is notice enough to excite a«4 to put fhe party'f)1& hi8 guard, and caWfor, inquiry, is notice Qf tow1+ich inquiry might have led, .When a person haBsufftcitmt. to a fact, beqee,""ed conversq,nt of it." :({ennedll v.Green, S ,Milne & K. 722. ' "The presumption is that, if the partJ;ajfected/byanYf'1'o/lw/uZent tran8action or might, with ordlna111:careantl attention, have seasonably detectea it, he seasonably had actuml knoioledge ofit."Ang. Lim. § 187, and note. A party seeking to of fraud, must aver and show that he ;}lsed,.due detect ,it,aJ;ld if he had the lIleansof discovery, in his power, he,wlll be he1!lJo,hl!ove tnown it. Buckner,V. Oalc(Jte, 28 1;1iss.432, 484. See also, Nudd'l. Hamblin, 8 Allen, 130·. 41 .·. ,. Concealment by 'in!'tesilenceis enoligh. 'There must be some trick or contrivance intended to eXClUde8tt8picion and' prevent inqui1'1). There muat be reasonable dill,gence, lind the means of knowledge are the same inieffect,as knowledge itself. lie does npt ,say he had·not full possession of mean!!· of detecting the fraudit \Vas-Jra.\ldulent, or that concealment, and the, 01 of knowledge, lS, "n the sq,me a8 knowledjje itself.' New Albany v. Burke, 11 Wall. 107." ' . ': .', " 01':' . : ., Wha,t haye' complainants in this case done. to unearth this alleged tr/l.ud? 'They dOD,ot ipf()rm us. The:y allege that. neither of them has ever ·been mtheSf4f4.oj Cq,lifqrnia. They allege generalLy that all these 336. defendants, and their indefinite number of grantors, have concealed the ala,mi of concea)wentalleged,. is, that they ,claimed ,to own· the they had purchased, and that their first cgranWl',DeVine, owried'it;before them. This:bill was filed June 1, and 'FealldiedAugust 1, 1857, nearly 32 years hefore the filing '.'Of, Rsmall town... Now it is a, large city· beall,during that time alriiost
.Mi,
J:.
StAVlrllt.:··
179
innumerable transfers· of portions Of this relil' estate. These lands are alleged to be held by defendants by direct and through mesne conveyances from Devine; much Of it must naturally have passed through many hands, during the last 32 years, and the number of those who now hold, and who have held, them during that time, must have run up into the thousands. And all these, under the general allegations of the bill, must have concealed the great fraud by representing to these complainants that Devine once owned the land, and that they owned it by purchase from him. , No one of the complainants was ever in California. Did these several defendants and their numerous grantors go to New York to give the complainants this false information, upon which they so confidingly relied? All the defendants' grantors, as well as the defendants, must have purchased with notice of the fraud, or their title cannot be shaken. I presume an.r party who supposes he has found a clear, apparently perfect title of record to land, and purchased it on the faith of the record, would be very apt to allege that he owned it, and that his grantbr before him owned it, when hisqright should be challenged by a stranger, who claimed it himself. Can such action alone, be concealment ofthe fraud in as to constitute bad faith and vitiate their titles? Would snch a claim alone, be auy sort of evidence that he was concealing a· known fraud? The first thing to do, it would seem, is to show by other satisfactory evidence, that there was, in fact, a fraud, and that he purchased with knowledge of that fraud. The pleader would seem to base his loose general allegation of notice of the fraud alleged, in making the two conveyances of August 1, 1857, by all deriving title under Devine, upon the fact,· that they purchased subsequently to these conveyances having been placed upon the record-this fact being so particularly alleged; and that the record upon its face afforded them such notice of the fraud; as would vitiate their purchase for want of good faith. It may be true, that finding upon the record, the two deeds dated a few days before, but acknowledged and recorded a few weeks after the death of Teall; the first being a conveyance from Teall, by Devine, as his attorney, to Rhodes, and. the next by Rhodes to Devine, on the same day, should excite suSpicion. But it is not unusual for conveyances to be executed and delivered before ncknowltldged, and at some subsequent time be either acknowledged, or proved, by the witnesses thereto, and recorded. So that fact is hy no means conclusive evidence of fraud. So, also,the law does not encourage dealings between principals and their agents, or trustors and trustees, especially through acts of the agents' or trustees, but yet such transactions sometimes do occur, and are not questioned 'by the principals. But where they have taken place, and have not been called into qUestion by the principals or their representatives for many years, it would seem that strangers ought to be protected from future disturbancebythe' principals. But however this maybe, if the record upon its face afforded purchasers the means of detecting the fraud, it was equally efficacious for the of fraud to these, complainants. If a consultation of the record 'would bring knowledge home to purchasers; a similar consultation would have brought it home to:these complainants.
FEDERAL BEPORTEB,
i$ urged hc;>wever, by complainants, that under the statutes of California,. the record of a conveyance is cO'IUltructive notice only to 8ub8equent_ purcQasers, and is not such to other parties. Grant it for the purposes of thiscasej but this is nota question of"conBtructivenoticej" it is a question of these complainants and their ancestors, have exercislld due diligence in ascertaining' their rights and pursuing their remedies? , In this, and in all other of the United States, the statutes provide for recording all instruments of conveyance. These laws are presumed to be known by all who are affected by them, and they are ip. fact, known to all citizens having the slightest degree of intelligence. A storehouse of information is here provided by law, open to all. These conveyances, fact, recordedas required by law, almost 32 years ago -nearly a third of a century. The record was open to the examination 9f the complainants, and if,not constructive notice binding upon them, whether examined it or not, they 1cnew that if Teall or Devine had a title to these lands, that tP!l title to them must be on the record, and for itj and when found, it that they could Qnd it readily by would have giveq them in fact, that same information-actual information-that in law, it communicated to the defendants whether they examined it Qr not. In order to avoid the inconvenience of the actual notice, and relieve themselves from the embarrassment of possessing the same knowledge; in fact, as that imposed by law upon the defendants as purchasers, complainants take pains to aver, that they were non-residents of the state and had never been in itj and did not know that these two con,veyances were in existence and on the records of Santa Clara county till 1887" Now if they made inquiries of all these defendants. and these <iefendants fraudulently told them, as they allege, that Devine owned all thelands that stood in his nAme on the record, at, and before the time of his death, and they purchased from him, that representation of itself, mu,st necessarily have in fact, by implication, at least, brought to their of these conveyances upon the record. At all events, notice, the with the knowledge they must have had that titles are required to be rean,d that these defendants claimed the land, if they did not cons1,1ltthe record. to see what title Teall and Devine had to these lands. they were ,guilty of the grossest, laches. and negligence, and were unaccountably inattentive to their own interests. If they did examine it, in person,or by agents, the ;record afforded- them the same clews to fraud, were furnished to purchasers, and if f<;>llowed up vigorously, and it could not haVe failed to unearth any fraud that in fact, flxisted. If they Jailed to do this, it was their own fault. As before defraudedlIlustbe diligent in making inquiry. The me/tDS of k,nowledge are equivaleqtto ,knowledge. ,A clew to the facts which if followed up would lead to a discovery is, in law, a knowledge," wholly independ and outside ofstatutory lnt; notice of the of a record. He9Jlt y ·. Slmney, 72 Cal. 363, 367,14 Pac. Rep. 88; Mannirtg v. Sa'll. Jacj"nto 'fin 00.,7 Sawy. 430-433, 9, Fed. Rep. 726. So, l!-ll3o., means by which thecomplllinants were solong kept igno-
TEALL V. SLAVEN.
781
rant of these rights by the respondents and the impediments, etc., to an earlier prollecution of their claims, are not, sufficiently, set out'in the bill. Says the supreme court, in Godden v. Kimmell, 99 U. S. 211: "Courts of equity, acting on their own inherent doctrine of discouraging for the peace of society antiquated demands, refuse to interfere in attempts to establish a stalp trust, except where the trust is clearly established, or where the facts have been, frandulently, and, successfully, concealed by the trustee from the knowledge of the cestui que tn/st. Relief in such cases may be sought; but the rule is that the cestui que trust should set forth in the bill specifically, what were the impediments to an earlier prosecution of the claim, and how he or she came to be so long ignorant of their alleged ri,qhts, and the means used by the respondent to keep him or her in ignorance, and how he or she fint came to the knowledge of their rights. Badger v. Badger, 2 Wall. 87; White v. Pat'nther, 1 Knapp, 227. When a party appeals to the conscience of the chancellor in support of a claim, says Mr. Justice FIELD. where t)1ere has been laches in prosecuting it, or long acquiesence in the assertion of adverse right. he 8hould setfol'th in his bill specifically what were the impediments to an earlier prosecution of the claim,' and if he does not. the chancellor may justly refUse to consider his case on his own showing, without inquiring whethe1'there i1l a demu1"rer, or any formal plea of the statute of limitatiom contaIned in the answer. Marsh v. Whitmore, 21 Wall.l86." None of these means are set out in this bill. The same doctrine is repeated in Richards v. Macka71, 124 U. S.187, 8 Sup. Rep. 437. See, also, Sullivan v. Railroad Ch., 94 U. S. 806..,. 811; Brown v. County of Buena Vista, 95 U. S.160; Hurne v. Beale's &'x, 17 Wall. 336; Hayward v. Bank, 96 U. S. 611; Speidel v. Henrici, 120 U. S. 377-387,7 Sup. Ct. Rep. 610. The fact that the complainants lived in "the remote and secluded" regions of the state of New York, far from means of information, and were never in California, cannot excuse them from the use of proper diligence. Says Mr. Justice BRADLEY, in Brod-
ct.
erick's Will Case: "Parties cannot thus, by their seclusion from the means of information. claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and thosewhoclaim an interest in persons or things must ))echarge<1 with knowledge of their8tatu8 and condition, and of the vicissitudes to which they are sUbject." 21 Wall. 519. Upon this passage I took occasion to observe in the San Jacinto Pin Gt8e, 7 Sawy. 433, 9 Fed. Rep. 726: "It must not be fOrgotten, not only that the world 'moves on,' but that in this age and country, and in this part of the country, it moves rapidly. Three years now, and especially in California, is longer in events and progress, than twenty years some centuries ago, when the statutes of limitation were adopted in England. Parties cannot lie down to sleep upon thei):' rights, and on waking up many years afterward, find them in the same condition in which they were left." In this case, Teall, under whom complainants claim, died nearly 32 years ago, and Devine, the other party under whom respondents claim, died iu 1876, nearly 14 years ago. So the only two parties who are presumed to know, what their relation to these lands, and to each other
'182
FEDERAL REPORTEa,
in faotw9.s,have long since died; Under such circumstances several hundred CitIzens, who have for more 30 years enjoyed l).nd im proved their property by their labor and expeflditure of money, in Ii large city, shouldnot'now be deprived of it,-by parties who have so long slumbered on their tights, if they had any, and been so "grossly neglectful of their own interests." I The fact that a patent was issued toSan Jose upon confirmation of her pueblo lands, cannot affect the question. No new title has vested in the complainants thereunder unless they can derive it through the parties holding under the conveyances in question, alleged to be fraudulent. The city holds the title in trust for those who succeed in maintaining their rights under the Teall and Devine conveyances. If Teall's rights through the Devine, and subsequent conveyances and the statute of limitations have been cut off, there is no channel through which they have since returned to these complainants. The parties who have a vested title either under the two conveyances in question, or under the statute of limitations, or both ,are the ceBtu;, que t(U8t. of the city of San Jose. I am .satisfied that the facts in the bill. areinsufficient to take the case out of the first clause of the fourth paragraph of section 338 of the statute of limitations of the state of California, and that the suit is barred by the statute. I am alsoll8tisfied that the cause of suit is stale, undet the pnnCiples relating tothesubject established and enforced by courts of equity.' So, also, the bill is insufficient it fails to set out specifically what were the impediments to an-earlier prosecution of the claim; how they came to be so long ignorant of their alleged rights, and the means used by the respondents to keep them in ignorance, and -how they first came to a knowledgeoftheirrights. - 1 am satisfied also, that the bill cannot be truthfully so amended, as to present a case for equitable relief. The parties have alreadj' amended twice. Some of the allegations now so, generally, made, must, necessatily, be largely overstated. How is it possible, that all the present respondents, and their numerous grantors intflrmedinte between them and .Devine, should have taken active means to conceal, and to successfully conceal from these complainants their rights, however credulous and confiding they may have been? Besides, upon these sweeping allegations in 8olido, 336 respondents, how can .any individual respondent know upon what case he is to be prosecuted? Upon what point as to him, indivi.dually,. will the blow fall; and whenpe will it come? How is each individual respondent to know how to prepare for trial under these loose, sweeping, general allegations? The demurrer must be SUBiained, and the bill dismissed, and it so ordered.
L.\NGSTRAAT fl. NELSON.
783
LANGSTRAAT
v.
NELSON
et aL ,
(Cfrcuit Court, N. D. Iowa, W. D. December 81, 1889.) QuIETING TITLE-EJECTMENT SUIT PENDING.
Under the Iowa statute giving a person in possession of land the right to bring a bill in equity to quiet title, such a bill is not demurrable because it shows that defendants, who are non-residents of the state, have sued complainant in ejectment for the l!!ond, and that such ejectment suit 11 still pending.
In Equity. On demurrer. W. S! Palmer, for complainant. Goo. Struble l!.nd Struble, Rishel &: Hart, for defendants. SHIRAS, J. The complainant herein is in actual possession of certain realty in Sioux county, Iowa. The defendants herein brought an action in ejectment against complainant,claiming to be the owners in fee of the realty in question. Thereupon the complainant filed the present bill in equity for the purpose of quietinK his title, and asking that the defendants be restrained from the further prosecution of their action at law. The defendants demur to the bill on the ground that the matters set up in the bill as grounds for equitable are fully available to the complainant in the action at law, being, in substance, an estoppel in pais, and therefore, claim that the', bill is not sustainable because there is pending bet'ween the parties an action at law. If the law action was not pending it could not be successfully claimed that the bill Was demllrrable. Theeotnplainant is in the actual possession of the realty" and therefore he could not maintain an action in ejectment against the defendants. Under such circumstances, under the statute of Iowa, he would have the' undoubted right to bring a bill in equity to quiet his title. Ho[f,and v. OhaUen, 110 U.S.15, 3Sup. Ct. Rep. 495. The bill on its face shows that there is pending an action at law for the possession of the property, brought by the, defendants against complainant, and by the demurrer the' point is' made that the pendency of the latter defeats the right to maintain the former; or, in other words, it is maintained that the pendency of the law action should abate the suit in equity. Where a parb brings an action ,ailawand a suit ip equity in furtherance of the same object, the general rule is that the one cannot be pleaded in abatement of the other, for the reason that the remedy sought is not identical. Story, Eq. Pl.§742. The ground"lipon which is based the right to plead the pendency of another suit touching the same subject-matter; as an abatement of a second suit between the same parties, is that the second suit is merely vexatious, and a party ought not to be subjected to the costs and expense of a second suit, when the one already pending willfully dispose of the issue. To sustaitt the plea, it must appear :that there is identity of parties,of 8ubject-mptter, and of reliefsougbt·. !ntlUtanu(l).v. Brune, 96 u. 588. In the case now uOller consideration, tbetwo suits were not instituted by,the sam.e/party. The contention of the.defendants.is that, complainant ought not to .be
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