BROWN t>. CRANBERRY IRON & COAL CO.
849 Co.
BROWN
et al.
'11. CRANBERRY IRON
&
COAL
(Of,rcuit Oourt, W. D.Nf.'YT'th OaroZma.
November Term, 1889.)
PA.RTITION-DISPUTED TITLE-SUY OJ!' PROCEEDINGS.
Where defendant in partition denies complainant's title, it is proper to stay proceedings in the suit for a year, so that complainant may establish his title by an action in ejectment.
In Equity. On motion to stay proceedings. Suit by John E. Brown and W. B. Carter against the Cranberry Iron & Coal Company. . Moore« Merrick, for complainants. W. A. Hoke and J. W. Buwrnan, for defendant. DICK, J; This suit in equity was instituted for the purpose of obtaining partition of the mineral interests in the lands described in the bill of complaint. The plaintiffs assert a legal title to such minerals, as tenants in common with the defendant company. In its answer the defendant company denies the title of the plaintiffS, and avers that for many years it has hads01e ownership and seisin of the soil and of the mil'leralsof the landEl mentioned in the bill of complaint; .and further insists that, if the plaintiffs ever had any legal or equitable claimed, they have lost their right to institute this suit by lapse of time; and they are also bound by the matter of equitable estoppel set up in the answer. Replication was filed, and proofs have been taken by the parties on both sides. On the rule-day in November, 1889, a motion was duly entered on the order-book in the clerk?s office by the counsel of the defendant, to set down this case for hearing upon the pleadings and the proofs. Objections to this motion were entered by the counsel of the plaintiffs, and they also entered a motion Jor an order to suspend further proceedings in this suit, and to allow the plaintiffs a reasonable time to estabJish their legal title, and regain joint possession by an action at law in the nature of an action of ejectment.-and that the defendant be required to admit an ouster on the trial at law. These motions are now before me for hearing. There can be no doubt that minerals in place in the earth may be owned and conveyed as real estate, and the owner have a freehold in the same·. Such interest may be held by different persons as tenants in common, even if one of them had a fee-simple title to the soil in which the minerals are imbedded. If the plaintiffs had commenced special proceedings for partition in a court of this state, they could have had a speedy and adequate remedy, as such court has ample jurisdiction to adjust and determine all questions at law and equity in one proceeding. As the plaintiffs are non-residents, they have an undoubted right to institute.their suit in this: court, and are under no obligation to seek remedy and relief in a state court. They could not, on the law side of this ODUrt,avail themselves of the proceedings for partition provided for by v.40F.no.15-54
, .FEDERAL REPOBTER,
vol.
the local laws, as such proceedings blend legal and equitable questions and modes of procedure. If 8uohproCleedings were instituted against them in a state court, and were removed to this court upon their application, the case thus removed would be placed 'On the equity\side of the docket. . The cllncurrent jurisdiction of a court of chancery to entertain suits for partition of lallds has long been established, and hasqften been exercised, both in England and in this country, where the legal title isundisputed. When the defendant denies the title of the complainant, and his right of joint possession, it is the usual oourse and practice of a court of chancery to retain the bill, stay proceedings, and alloiWthe.complainant a reasonable time for trying his title, and re-establishingthe unity of possession with his alleged co-tenant by an action of ejectmeht. Questions pertaining to a lej:(al title and the nature of possession are matters of law, and should be decided by a judge and jury in a legal tribunal. This was· the, method of practice and procedure thatpl'evailed in the courts of equity in this atate before the .abolition of ·suohcourts by our newconstitutioD, and the adoption ofa.oode'systew, which required aU legal amd! '6lI)uitable remedy ,and, relief to be sought by, civil action or special proceedings. G4rtelt White, 3 Ired. Eq. v. Bell, Id. 209; McBryde v. Patterson, 73 N.C. 478., Thesestateistatutes cannot limit or regulate the jurisdiction of a federal court this state, enforcing anBadministering;the ,rights of non-resident litigan.ts,although ,such' or ,liavebeeri acquired,. under the laws of the state. There is ino :doubt as to thejurisdictiol1 of thiscourtHn the case before me. ' .,,, '. .The plaintiffs have not set fQrtl1 their own and the titl'eof the defend'ant with, ,that: particularIty and detail, that w:ould entitle ,them to a decree of partiijon of the property in: controversy. This defect could be cured bynn, anien4ment, which I wciuld' readily allow aocount ,of peculiar features:of this case. In allowingthe plaintiffs time and opportunity for bringing an action Oil the:law sideofthis to ostablish their Iegal title: and unity of posse8siQn, no injustice or hardslnp,will result to the defendant company or :its legal title. . Its sole' seisin and long adverse' 'possession; and the: alleged ,matter, of equitable estoppel, can be employed in defense in such action at law. Kirkv.JIamiltonj 102 U. ·S. 68.,..7,lk If the :,should 'succeed in their action at law in es,tablishing their legal title as tenants in common withthedefendant,some diffioulty: may arise as to how partitionisiw be effected,' as mineral interests,in i.lahds ara necesSarily of unknown; value; and not, capable of partition:without a,sale;: alId a·sale mayl'csult indeprivingthe'ownerofthe 'lloil of, its: possession. in the minerals, '011 forCing it to payianexorbitant ,price fOf such property.' I'will notauticipate: otherditficultiesthat may ,1;Ie eneountered iUutil they ,arise .on: hearing this .case upon, furthet, direo;.' ,i! ,;i,; , tio118.h' Let an 'dreier' be: drawn sfliLyin{l;pr<1lceedings in this case, an&igranting . the; plaintiffs one' year: to bring and' pros'ecute their', action: at :law, i.:ind taken in Ithis08f>e ,to be .read in evidence, bw.he h' ..
CENTRAL TRUSTicl>. OF
NEW YORK
IOWA' CENT. BY. 00.
sn',
of such . order is necessary, requiring the'defend. ant to admit ariioustetonthe trial, for the claim of the defendant of sole title and exclusive adverse possession amount to an ouster for the purposes of tlicnlctiQn at! law, which will be tried on the law side of this court.
CENTRAL TRUST Co. OF NEW YORK e. IOWA CENT.
Ry.
CO. tC
al.
(Circw£t Cowrt, N. D. ntinof.8. December, 1889.) B.iQ-CONDlTION-FORPEl'l'URE-REB ADJUDIOATA.
The intervenors, being the owners of certain railroad property, sold the same to thefailway company, taking in payment tral1sportation certillcates of said road. The agreement of sale provided that the road. so purchased should be completed within' two years; otherwise, the agreement. to 'be void. The road was not com· pleted within that time, intervenors gave notio,e of their election to declsre the agrejlment void. Meal1time' the rights of'the company had passed to the defeildant,who brought suit. agBinst the intervenor$, in the state court, to compel a , performance, ,11ringing into court the transportation certificates. The intervenors filed a crosB-bill, asking for a forfeiture of theagteement of sale; which bill was,dismissed, the decree reciting that it was without prejudice, except. as to the rigM to clsim or assert, & forfeiture of the agreement. Thls decree was not appealed 'from. Held, in aUBCtion to foreclose a mortgage upon defendant's property. that:the right :of,the intervenors tociaim a forfeiture of the agreement was OODc;llu<W4by the decree Qf the which is stUI in full force and effect, and their petition, asking for'such forfeiture, must be dismlssed. ,,
Bill to foreclose· .In the matter of the intervening petition of Thomas B. Cabeen, Robert 1. Capee,n, and George Senton. H. :Bigelow and J. a,Fepper, for inter,'enors. A,ftthOrtY C. DalYiand Gardner, McFadon « Gardner, for Iowa Central Railway Company. GBESllAM, J. . The Keithsburg &: Eastern Railroad Company was organized to construct and operate a railroad between Keithsburg, in Mer· cercounty, Ill., and Monmouth, in Warren county. It acquired right of way, depot grounds,aild some terminal facilities, mainly in Mercer county. The company became embarrassed. Judgments were entered against it,and its property was bought by the intervenors, in 1878, at sherjff's The Peoria & Farmington Raihvay Company was organized to build and operate a railroad from Peoria to a point on the Mississippi river,and on February 22, :1881, this company had extended its road tq point near Monmouth, and, desiring to still further extend it to Keithsburg, on the Mississippi river, bought through its officers, E. P. Phelps and William' Hanna, from the. intervenorslill ,of the property they had purchased at sheriff's sale, in consideration of 825,000 in transportation certificates Of the Peoria & Farmington' Company, to be deliveredtipdn the completion of the line from Peoria to Keithsburg. THe of sale provided that the. purchaser ,should take immedt'that the 1ii1e shol11d be completed by Februnry· 22, 1883,