BRIGHT 'V. LAND & RIVER IMP. CO.
479
third of the, rental value of 100 acres. Ten acres were purchased by :Mr. Galusha at the foreclosure sale, and not involved in this suit, and 40 acres were sold to Mr. Marshall for $10,000. There is no evidence in regard to the rental value of the 60 acres owned by Mrs. Van Duren. Being vacant land, and not under lease, it is questionable whether the dower interest is of any value. The amount of money received by Mrs. Van Doren for the 40 acres sold appears from the testimony; and, according to the Northampton annuity tables, upon the usual interest, at 6 per cent., the value of her dower in that portion of the tract can be easily determined, and a lien fixed upon the 60 acres. I find, therefore, that the complainant is entitled to the value of her dower interest in the part not conveyed, and for damages for having been fraudulently deprived of her interest in the rest.
BRIGHT
et al. .".
LAND
& RIVER IMP. Co. et at.
(Owcuit Court, W. D. WtBconsin. June 6, 1890.) PARTNBRSBIP-8URV1VING. l'ARTNBRO)' FIRM-SALE 011' REAL RSTATIL
L$nd purchased by a lIul"Viving partner at sherift's sale, under an attachment in a Buit by such partner on a debt due the partnership, does not become partnershlp real estate, which will descend to the heirs of the deceaaed partner, 80 as to prevent the partner from converting it into money by a sale.
In Equity.
Michael S. Bright, (I. C. Sloan, of counsel,) for complainants. F. W. Duurner and Pinney Sanborn, for defendants.
BUNN, J. This is a suit brought by the complainants, who are citizens of Indiana, as the heirs at law of Michael S. Bright, deceased, seeking to charge an undivided one-half interest in a certain 80 acres of the hands of the defendant the land lying in Douglas county, Wis., Land & River Improvement Company, with a trust in favor of the said complainants as. such heirs at law. The case turns wholly upon questions of equitable cognizance, and the leading facts are as follows:. In 1856 one Michael S. Bright, the father of the complainants Michael S. Bright and Sarah B. Bright, and the husband of the complainant Sarah L. Bright, formed a law partnership with the defendant Hiram Hayes, at Superior, Douglas county, Wis., which continued until 1862, when the partnership known as Bright & Hayes was practically dissolved, New York, and Hayes going to Washington, and driftBright ing theIlCe mla the war of the Rebellion. Hayes returned to Sqperior after the wa,r, and reSumed the practice of law; but there was never any settlement or winding up of the affairs of Bright & Hayes. On August 1, 1858, one Ambrose B. Burbank became indebted.to the firm of of$500,for legal services. In November of, Bright &
FEDERAL REPORTER,
vol. 42.
I
1858 they brought an 8:ction against Burbank. to' recover the amount, lind obtained a judgment, which is conceded to have been void for want of jurisdiction; Burbank having become a non-resident of the state, no personal service being had, and it appearing that there was no property of his in the state which might be attached. Nothing further was done by Bright & Hayes to collect this Burbank claim, and it remained in the' same condition until August, 1880, when Hiram Hayes, as surviving partner of the firm of Bright & Hayes, brought an action in the ciredit court of Douglas county, Wis., to recover the claim, with interest from 1858. In this action,Burbll.nk remaining still non-resident, an attachment was issued, and levied upon the 80 acres of land in question, to secure the debt. Hayes, as such surviving partner, on the 19th July, 1881, recovered a judgment against Burbank for $1230:90, with $54.46 costs. Execution was issued, and the premises sold at sherifl"s sale September 12,1881, to Hiram Hayes for $1,200, and the usual sheriff's certificate of sale issued. Under that certificate the debtor had 12 months in which to redeem, and his creditors.3 months more, making 15 months that elaps4:!d before the sale became absolute. No redemption was had. and on 20th December, 1882, a sheriff's deed issued to Hayes. Hayes bid in the land on account of the debt, it not appearing that there were any other bidders at the sale, he having advanced and the costs and disbursements in the two actions mentioned and the <:q$ts off>ale. Michael S. Bright, the former partner of Hayes, had died many years previous, on Deceml;er 4, 1868, intestate. Administration of his estate had been granted in Jefferson county;' ltid., to Caleb T. Lodge, who it appears was discharged from his trust on February 3, 1874. Administration was also granted in Wisconsin to defendant Hiram Hayes, on April 1, 1872, and on May 5, 1873, an ohier was made declaring that said administrator be discharged fully and finally from such !ldministration, etc. Hayes has never paid anything to the personal representatives of Michael S. Bright on account of this claim, nor accounted to them for their share of the proceeds, though he avers that he is, and eve,r has been, ready and willing so to do; nor have they ever demanded an accounting. ' On the 13th of July, 1885, Hayes, for the consideration of $2,800, sold and conveyed the land in question, by warranty deed, to defendant, the Land & River Improvement Company, this being, as appears, the full and fair value of the land at that time, and that being the first opportunity to sell that had presented itsclt ' The complainants, by reason of these facts, claim that a trust arose in, their favor, and attached to the land in the hands of Hayes, to the extent. of an undividerl one-half interest, when he bid it in at the sheriff's ;eale, and that he had no right, power, or authority, as ing paptner, to convert the land into money by a sale; that the land, upon the sale to Hayes,became partnership realesmte, and that Hayes eouldnot"cpnvert it into money in order to reimburse himself for the costs and expenses of the proceeding, and account fOf one-half of the net proceeds to the personal representatives of his deceased partner; and
BRIGBTt1. LANJ> & RIVER IMP. 00.
481
that the trust which arose in favor of the heirs of Michael S. Bright followed the hind, upon the sale by Hayes to the Land & River Improvement Company, into its hands, and still subsists in favor of the complainants. There are some other important questions in the case as to the title to the land, but the question I wish to consider is whether this contention of the complainants can be sustained, allowing that the Land & River Improvement Company took title from Hayes by virtue of the deed by Hayes to it of 13th July, 1885. I am of opinion that it cannot. I think that no trust ever attached to the land in favor' of the complainants; that it never was, in legal or equitable contemplation, partnership real estate. The claim originally was peJ'sonal property, 8 mere chose in action belonging to the firm of Bright & Hayes. It was supposed by the parties, in the life-time of Michael S. Bright, to be worthless and uncollectible. Upon the death of Michael S. Bright, the legal as well as eqnitable title survived to and was in Hiram Hayes. He had full power and authority, as surviving partner, to go on and wind up the affairs of the partnership, and, among other things, to collect this debt. Nothing was done until 12 years after the decease of MichaelS. Bright, Hayes supposing the claim was worthless. Finally Hayes ascertained, as he supposed, that this 80 acres of land stood on the record in Ambrose B. Burbank's name, and began suit and attached the land. In doing so, Hayes entirely ignored two certain deeds executed by Ambrose B. Burbank for this land,-one to Lester W. Markham of 5 acres, and one to Eleazar A. Burbank of 75 acres,on the ground that those deeds were severally void for want of sufficient definiteness in the description of the land sought to be conveyed. After obtaining judgment, Hayes -caused the land to be sold, and bid it in in satisfaction of the debt and costs. It seems to me this bidding in of the land was a neceseary incident in the collection of the debt, there evidently being no other bidders at the sale, and therefore no other way or hope of collecting the claim. When did this claim become partnership real estate, and, as such, descend to the heirs at law of Michael S. Bright? Supposing such a thing could take place 12 years after Michael S. Bright's death, it is evident that when Hayes bid in the property to satisfy the debt the land could not have been considered as partnership land, which would descend to the heirs, because Hayes, as' surviving partner, held no absolute title to it. He held a certificate of 15ale which was redeemable in 15 months. Whether it would be rE!' deemed, nobody could say. He must wait and see. If the land had heen redeemed, then, certainly, the claim would consist in personal estate, which would go to personal representatives, tind not descend to heirs. Or, suppose Hayes, before the time to redeem had expired, having only in view his duty to do his best as surviving partner to col.. le.ct the debt, had assigned the certificate to a third person for the amount of his bid and interest, could there be any doubt that he might lawfully do that? And, ha.vingdone it, would there be any doubt that the money received would belong to him as surviving partner, subject to the v.42F.110.9-31
482:
right¢'
.aft&, theqebt& of the partnership were paid, and the business ,not. And it. SE¥ll):il$ equally clear to the court that, wound up? 1 the land not having been redeemed, Hayes might lawfully sell it as he
representattvea of the deceased partner to !In ae-
did in order to tile debt into mQney, into a distributable. shape, so as to ,wind up t4e affairs. of the partnerl3hip. And how otherwise was he to get his costs. and expenses out? He had shown very commendable enel'gy and perseverance in huntipg out. this land, and in prosecuting aQd defending several other suits. as he did, to. defend .and perfect the title, and in selling the land to get the claim into money, in which sever1lil:Pl'QAeedings he had, incurred considerable expense,-somewhere b.etw:een $300'and $400,.as the testimony shows. How should he be rElilllbursed thesecoata and expense$ if he could not sell the land? A.llen... v. Withrow I 110U. S. 119,8 Sup. Ct. Rep. 517. There waa nothing else from which the debt could be made. . This land, assuming t4M 13urbank had tjtle, constituted.8 fund out of which Irayes must the debt, if made at all. He treated it, he says, and I think coras he would a pile of lumber, or any personal chattel, the pl;lrppse being to get the debt out ofit. When the sheriff offered it for sale l and there were no other buyers, he bid it in to save the debt, and tbep:aold it the first opportunity. The claim being in theJi.rst instance pe.rsPIUU property, the mere accident that, in thecoul1Se of the colleeti<m" Jt aasumed the forIll of real 'estate, would not. change its charaGtE!r,jnthe eye of thalaw, nor tbe contingent interel:it of personal repr,csentatives into partnership real estate, which would descend to heiril.. , . ,. ,'l'pere are questions in the litigation regarding the title. which I do not find:it necessary to determine definitely, as it would be necessary if the case,re§ted wholly upon them. ,The land was originally entered by MicPaetO'Connor, wholon October 25, 1856,conveyed it to Ambrose B. Burbank. On Ootober 19, 1857, Ambrose B.Burbank deeded to LesterW. Markham" five square acres in. the north-east corner of the south"westhalf of said section etc.; and on October 4, A/llbl'ose B. Burbank conveyed to Eleazar A. Burbank "seventy fiveacr,es of land, being in the west of the quarter of sectignt.wenty seven, township forty-nine, range fourteen," etc. Afteron October 28, 1886; purchased the five wards Eleazar A. acres{rom. Markham,and brought in ejectment against the Land &; Riy.er. Improvement to recov!:Jr .the 80 acres. That suit was by the land. company, .whgemployed HayesRs their attorney. re!lult of it was comprOll1ise was effected, by which Eleazar A. :e,\:lrbank, for the SUql of $2,000, ,conveyed ,the land to the Land &; River ,llllprOVemElnt Company; A question is made as to the effect of this.deedof Burbank to the land company,-whether it conveyed title; ,apd that question turns. .upon the sufficiency. in the description oflandinthEl,deedof:5 aCres to Markham and that of 75 acres to Eleazar A, Burbanl}, the complainants contending that these deeds were both absolutely void for. unQertainty in .the description. If these deeds
BRIlihT
LAND '& RIVER IMP: 00.
4:88
were void, then the sheriff's deed to Hayes and Hayes' deed to the land company conveyed the title. If these deeds are valid, there was no interest remaining in Ambrose B. Burbank, the debtor in the attachment suit, to be levied upon, the sheriff's deed conveyed no title, and the complainants have no claim against the land company upon their own chosen theory drthecase. Withorit·.going into the question at length, I would say that, in my judgment, the deed from Burbank to Markham of the 5 acres would probably . .void for uncertainty, ·but that the deed of Ambrose B. Burbank to Eleazar A. Burbank would not be absolutely void, but probably conVeyed: an undivided 75.80 of the land to tne grantee, (see Freem. Co--tenancy, § 96;) or, if not that, would give the grantee the equitable right to have the 75 acres located, either by agreement or by suit. The description in this deed is complete, except that'it does not locate definitely the 75 acres conveyed in the 80 from which it is taken. I cannot think, however, that it conveyed no suustantial interest in the land, either legal or equitable. But I am contented to decide the case on the theory of the complainants, that the sheriff's deed conveyed. the title to Hayes, and Hayesconveyed ido the land company. Upon that theory, I am satisfied that the complainants have mistaken their remedy wholly. !fthey had af!ked for, or would have taken a decree for, an accOllntingagainst the defendant Hayes, on the basis of the sale by him to the land company, they might have had all the relief in this suit that they seem to be entitled to upon the facts. But though the court on the hearing (itappearing that the complainants were the proper personal representatives of Michael S. Bright, deceased) offered them a decree granting the above relief against Hayes, they declined to accept it, but dismissed the bill as to him, choosing to rely wholly upon an appeal from the decree dismissing the bill as to the Land & River Improvement Company. ·Probably there are few men who, in the state of the title to the tract of land in question, would have persevered in pushing the claim against Burbank to collection, and it is quite as probable that most people, having a half interest in that almost desperate $500 debt against a non-resident, after looking upon it for so long a time as worthless, would have been :satisfied with an amount of money exceeding by several times the amount of the original claim; and in all likelihood these complainants would also have been satisfied but for the one circumstance that, since the sale of the land to the land com.pany in 1885, the land, owing to the general improvement in a new country, has risen very rapidly in value. The prize is tempting, and, if the complainants can win it in another court, it will be their right to do so.
J'EDEBAL REPORTER,
CAMPBELL V. PULLMAN P AI,ACE-CAR
Co·
.(Circuit Court. N. D. Iowa, W. D. May 9,1890.) 1. SLEEPING-CAR COMPANIES-AsSAULT BY EMPLOYE-LIABILITY 011' COMPANY. The Pullman Palace-Car Company is liable for injuries sustained by occupants
B.
of its sleeping-cars through the negligence or willful misconduct of the employe whom it places in charge of the oar. . Wher&theporter placed in oharge of such a oar by the comllsny makes an inde. oent assault on a female occupant thereof, she is entitled to from the company a fair pecuniarr compensation :tor all injuries, temporary or permanent, directly caused to her In her person. health, and strength, includingcompeusation for the pain andsu:ffering, mental and physical, which has been, or may thereafter be, oaused.
SAME-DAMAGES·
At Law.' ,
Action for damages for assault. Joy, Hudson, Call & Joy, for plaintiff. Hubbard & Spaulding and John S. Runnels, for defendant. ". .
SH):RAS, J., (charging jury.) In the cause now on trial before you, the plaintiff, Mrs. Campbell, claims damages against the defendant, the Pullman Palace-Car Company, in the sum of $20,000, for injuries which she claims were caused to her when she was an occupant of a sleepingca.rfUrnished by defendant, for use as a sleeping-car upon a train of pasoperated by the Chicago, Milwaukee & St. Paul Railway Company between Chicago, Ill., and Sioux City, Iowa, such injurie!! being,alleged to have been caused by the misconduct of the porter emplayed. by the defendant upon said sleeping-car. Before passing to a sta,tElI:;nent of the particular issues to be submitted to you in this cause, itisproper fDr me to instruct you as to the relation existing between the Pullplan Car Companyaild persons occupying the sleeping-cars furnished by the. defendant company for the use of the traveling public. As I construe the contract between the defendant and the Chicago, Milwaukee &.St·.Paul Railway Company, the Pullman Company agrees to furnish of the public what are commonly known as "sleeping-cars," which, when in use. form part of the train run by the railway company for the t,l,'ansportation of passengers along the line of railway. The Pullman Com,ml.llY, by thus furnishipg cars to be used as sleeping.cars by the traveling public, dqes not'assu,me towards. the persons occllpying such cars. thj:l relation of a common carrier. It does not undertake the duty transporting the passenger to his destination. That duty is assumed by"the railway company, and for the performance thereof the passenger must look to the company managing the railway; and the Pullman Company is not liable for injuries received by the occupants of its cars from accidents connected with the movement of the train. Nor is it responsible for the negligence or misconduct of those persons charged with the duty of operating the train of which the sleeping-cars may form part. 'While, however, it assumes no responsibility for the mere transportation of the persons occupying its cars, and does not occupy the re-
of