..
!'. GREEN.
:105
CORNEl,L
v.
GREEN· et
al.
(Cirtmft Court, N.D. Illin0i8. July 14, 1890.)
1.
Where a bill for foreclosure makes a certain person defendant as executor and as guardian, and the return to the process shows that he was served as executor and guardian, and the bill statlls that he has an individual interest in the mortgaged land, a decree of foreclosure binds him as well in his individual as in his reprei;lentative cap;Wity. 2. EQU1TY PLEADIXG-DEMURRER. . . Where a bill to redeem from a mortgage which has been foreclosed alleges that the complainant was not a party to the ·foreclosure suit, and makes the and record in that suit a part of the bill, from which record it appears that saId cf;lInplainant was a party defendant to the foreclosure suit, the allegation that he was.ntlt'aparty. being an averment of a mere legal conclusion, is not admitted by a demurrer.
In E!l\lity.
.
On demurrer to bill. Reed&- Dyche, for complainant. Bi8bee" Ahrens &- Decker, for defendants.
BWilqWrT, J. The defendants have interposed a general.demurrer to the .billfi1ed in this case, wqich has. been argued and submitted. The bill chargci;J, in substance, that in 1871 George W. Gage was the owner of divers lots and parcels of land in the city of Chicago and vicinity, uponwhieh he made a trust·deed to secure· the payment of his notesM of $50,000; and that in 1873 he made another trust-de.ed upon the same property, to secure the payment of notel'! 'to the amoullt $100,000, making a total incumbrance upon the property of $150,000 and accruing interest; that in December, 1874, after the making and recording of the aforementioned trust-deeds, Gage made a deed in feesimple of the same lands to William F. Tucker, which was duly recorded in the office of the recorder of Cook county; that George W. Gage died in September, 1875, after the execution and recording of said deed tQ Tucker; and' that Tucker died' about September, 1887, leaving him surhis heirs at law, and that since tqe viving awHlow and two children 25th day of Janul1ry, 1890, those two children and heirs of Tucker haye conveyed: all their right, title, and interest in the said property to the complainant. The bill further charges that in November, 1875, the de.:. fendant Mrs: Green, having become the owner and holder of the notes secured by said two filed in this court a bill to foreclose the same; 'thatauch proceedings were had in said case as that a decree of foreclosure was entered, finding that there was due to the complainant Mrs, Green the sum of $186,566; and that on the 2d day of January{ 1877, all the said lots and parcels of land were sold under said decreEl.\ and became the purchaser thereof, which sale was duly confirmed, I1hda 'deed made to the purchaser by the master in chancery of this court. The bill further alleges that William F. Tucker \vasthe owner of reqordof all the said lots and parcels of land at the time of the foreclosut:e proceedings, and so remained up to the time of his death;
FEDERAL .REPORTER,
vol. 48.
that he was not made a party defendant to the foreclosure proceedings) nor ever in court, nor snbject to the orders, 'decrees, or judgment of this court, and avers that the foreclosure decree is not binding on him, nor on his heirs, a grantee'of"his heirs. Complainant then asks that an accounting be had of the rents and profits of ,theprope,rt.y, tl;t,econveyance th,ereof to the Green :and others '''al1d .offers to pay whatever shall be found to be due upon the profits receiveo by Green, and prays that he be allowed to redeem said premises on the payment ofwhatever is so found due. The bill refers to the orders. decrees, and in ,theforeclosureproceedings for more specific, statements and tega'rd to What done in that suit, and makes the same a pllttQrthe:bUl: .: .Anexamluation of the bill in the for.eclosure; 9ase shows that the introductory clause of said bill wa" as follows: ' "Your oratrix, Hetty H. R. Green, a of Bellows Falls, in the state of Vermont, and citizen of said b'r,iJlgs Wis her-bill of complaint against Sarah HJ·Gagehl:retUdillnt·of the !llW'Of Ill., a citizen of the state of Illinois, the Wo' Gage of Chicago, deceased, and executrix of his last will and testament, Eva Gage, . Jr., Dll.'VliI chlIdren of ,VUe said W Gage, deceased', each of now the'cityoflChicago, and citltims of. the state of nUnol·· tb-e',said two .last·.namedchildrenj I George W. Gage; 'Jr., and David A. Gi'g6, F. Tucker; Joseph K.Barty,and John W. W,hom .I\':e o,f t1).6, cpupty of,CQ()k.: sUlte, of I!li(lQis, and ,guardhl.l1s of .IJllidl rqiIlQr ql,lUdren ; the '.,rucker also th.e,.last will and George ' . ' ',' .
files
0
·",",.1
.j(:_
",411,41
,part of the bill the. complainant :states' as. follows: "'f'YduForlltl!lx further shows GeorgeW;Gage', the maker of sald,notes(iM:rstofore., to-wit. On the 24th day of September; 1875,atChicago U-fe. leaving him: surviving tbesaill SarahH. h,s ;wid0'rt;l\Jld tllesl\i4 ,Gage, (J,arrie.E. S. Gage, Allce the Q-age,GQOrgeW. Gage,Jr.,])aVid A.,Gage, his onlf. ililPledbeiJ,!'g'rniilora; atl:d,1eavillga last will apd testafD,ellt;' and by which 'WIIlil;\mF,Tu'okel', Lewis J;J.' C6burn, lind his saId w,idoweKectitorsand eXiecutrlx, and deVised to themi. upon certain conditions therein !:UUJl¢,'l'U his real estate, having before that time, as appears by the rj;lq<!J;'41! by by!bimlleU' and 'w.ife,.dated andl'ecorl1¢ recordel",s <!lItcel Dscember 1.9, 1l;l74, for the .. In, I!l,\id said SRld premIses heremdeslltibed, to said l,11<;umbrances·. Your oratrix' fudhershows tha-tsaiu Whom this bill of oomplaint:i's'bl'Ought hater ()1' claim toh8\'e,' Bome interest in said premi$es Ilescdbed. in said trust.,deed& by mortgage;. jUdgment, ,conveyance, or otherwis.13- ; ..... . .. ..trlX.'. ". int.e.re. whate ,e.r, ,t.hey..are·.aresubject .. 18P r :unq.er mentione4, and canJlle anr",ar .. forpliooisswas the ofl'the cOilrt might issue, ",direoted to thellaidSarah H.Gage and the' othet'defendahts herejnbllfore.riained.;" etc. . 'J.'her summons \yaS issued in; the.. oase,and ran V.'
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I"
.;'
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.:' . .
"
' ..-
,
against Sarah H. Gage, widow,and the childrenoftlie said Geol'gtl ,WU Gage, (naming them,) William F.Tucker,Joseph K. 'Barry, JohnW. Clapp, guardians, ,etc., "William F. Tucker, exeoutor, " etc., and the re-;' tum oLthe marshal was that he had served the writ by personally livering a true and correct copy thereof to each of the defendants named, including the name of William F. Tucker, guardian, and William F.. Tucker,executor, on the 8th day of Deeeniber, 1875. This summonS was returnable on the first Monday in January, 1876., On the 5th day' ofAprU, 1876, (the first Monday of April having been on the 3d ,day ofsaidmonth,:}a default, was entered,irn said cause, the record entry ofwhichracited: First, service uponsonie of the defendants and appell.rancE!s by them, and then proceeds:. . .. ,, "And it appearing that dueand legal personalservice has been had upon all theolherremoaining'defendants in this cause, by service otsubpoona inthiac!iuse upon tqem and that ealil/llWlqall·thedefen,4ants i,1l this !!ore .1l'lHslly be,forethis to ,its, jurisdiction, neitherot defen3ants have.pleaded, ,or demurred therein, ceptiJ1lglthe following named defefidants, (namirig them,] not including Tqcklit' in any cltpaeity;»' .'.. , ;," , :The,'Qrder was.in the foUowingwords: :' " , ;,' ,'." . 'I . .," ,..' , .. of co!IJplainant's solicitorjt is. prdered that eMh'and aU of, s.alcl . wha: not pleaded, ans were4. OJ; qemllrred,as [theh nalllingth,ewil,iow and children of George W. Gage, Wjllil\1D l!'.Tucker" answer, cpmplaint in this 'cause; instlZllter:'ahd sall1 last-named detendants,havzngeach been three times called so t6: do, coine not, but, make :del'ault;and it is hereby ordered, ,ad;': j udged,'a:n4 llecre,ed 'that as to elich uf·.said defendants last named and.so mak-' ing ,said 9f,coffiplaint and the mattef&and ttlinglt therein cOlltained betaken as and for confessed." . ' " , ' : " _.' It wnf be seen from these quotations from the record that, while the bill in this caseaversithatTueker wasl1ot'made a party,andl1ot brought before' the appear that he was tnade a party .distinctly. 'in; his representa'tive,capacity as exeCutor: and guardian, and that thebiU also clearly lmddistinctly charged that the conveyance Was made t() him:'; by Gage' in: Decem bert 1874,whereby he: became;the owner of the prem;, ises in S11 bject to the trust.d,eeds. The bill averring, therefore,a mere legal conclusion as ,to Tucker'sl1ot being a party ,that averment is, notadmitf.ed by the demurreI:,unless facts and circumstanct>s seHorth are sufticient:to sustain the allegation., Gould v. Railroad Co., 91 U. S. 526. There carr be 'no doubt that Tucker was berore the court, in ·his' repres\lntative capiwities"aud, that the bill also contained sufficientavp.r-: ments to·· put him upon answer as to' his individual interest in the sub"' ject-nmtter of the controveisy. In Brashet"v. Van Cortlandt, 2 Johns.. ' Ch; 242, thebiU was against a committee of a lunatic. Thesubpdlna. W!lS issued by the clerk of the court, but he omitted :the additioll'of the; plaintiffs as executors and of the defendants asa committee, ,btilieving those additions unnecessal'yintheprocess. A default· was taken against ,as committee, aDds decree entered against them asstlch, Upon; an. applicatiQnto .set aside th,edefault and dec:ree.uponthe-ground' -, .'," 1 ., .. " j .'.' ' ... .' . · " "; , , I
I
i _.
>o' I
--,
vol. 43. not served as a committee, the court held that the defendantll too late 'for this objection, and that the process was suffi· cientl)l applicable to that bill. And, in Walton's Ex'r v. Herbert, 4 N. J. Eq. 78, the bill was filed against James Herbert, surviving executor of James"Herbert, deceased. The prayer was for process against said James Herbert. The subpre,na issued against James Herbert generally, without stating his officialcharaoter, or stating the character in which he was sued. , On a demurrer to the bill the court said: "It is by'iuspectingthe bill that the defendant ascertains the nature of the charge against him. 'fhe subprena only gives him notice that there is a bill filed against him, and, if, he be properly charged in the bill as executor or deVisee, or in any other capacity, it is not a good objection that the subprena is issued against him generally." ; Upon the principle asserted in this case it seems quite clear to me thlit,;TuCKer\ having been served, with,. process in his representative capacity',:wasch.argeable, withhotice lof the entire of the bill so ,him in J;iisl,'eptesentative or his individual capacity, anc}' tl1at it does not lie in Ms mouth to say that he was not properly before the court. When' Mr. Tucker was summoned into court as executor and guardian he was chargeable' 'with notice of the entire contents , and Scope bfthb"bill, both as it affected his representative and his indi, He certainly-must blf 'conclusively presnmedto have those two trust-deeds upon I ,wllich he' had .1Iy the deed from, Gage in Decemb13 J.', 1874"a114that he had himselfindividually acquired title to these la.nds by a; deed from Gage, subsequent to the m.aking of those trust· de.eds. ; lam therefore Tucker was suffiCiently made a party before the court, to bind him in his individual as well as his representative capMity.:, .'The reoord;entl'Y of the default also reoites that a.ll the parties default· ing, amonl( ,wbo/Jl were Tucker, had been duly served with process, and a:s there was '. ample time between the issue and return of the summons Btlryedon, Tucker in his .fllpresentative capacity and the time default WaS. taken at the April:term; 1876, for the issue of an alias or plures sllmtnons upon Tucker individually, the court will,'! think, presume such service. :WllS obtained as is recited in the order of the court. ilobinson v. j i'air,128 U. S. 53, (page 87;,) 9 Sup. Ct. Rep. 30; Sargeant v... 12; How. 371;. Mmvey v. Gibbons, 87 Ill. 367. It may also, l;Jbink,. be urged with great force that this bill should not be sustained ontbe ground of the laches ,of the complainant. Tucker had acquired title. befolr6 :the. foreclosure proceedings. The foreclosure proceedings were 9Qmplete4 on the 2d of January, 1877. Tucker lived until Sep· 1887,'-nellrly 10 years,-and there is no allegation or statement in thei btU tbathe or his heirs at law were then'laboting under any disnbility.. This suit was not commenced until April,!1890, so that there ;aJ})e:fiod of overl3 years since the commencement of the foreand the vesting of the absolute titleto this property iljl. ,l!tnd yet no attero pt is' made to explain thjs long de-'
DILLON tl. KANSAS CITY S. B. BY. CO.
109
lay, or to give any reason why the complainant, or those under whom the complainant claims, have not instituted proceedings at an earlier day, and it has been held by tpe supreme court olthe United States that laches may be availed of as' a defense on demurrer. 'Landsdale v. Smith, 106 U. S. 391, 1 Sup. Ct. Rep. 350; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. Rep. 610; Richards v. Mackall, 124 U. S. 183, 8 Sup. Ct. Rep. 437. In the latter case, a bill to set aside a marshal's deed nearly 12 years after the sale was held to be too late, and the laches was held sufficient on demurrer. I choose, however, to place my decision in the case upon the ground that Tucker was sufficiently before the court in the foreclosure proceedings to be bound by the decree of sale there made, and that those claiming llnder him cannot now complain that he was not specifically served with process in his individual capacity. The desustained, and the bill dismissed for want of equity.
DILLONet at v.
KANSAS
CITY S. B. RY, Co.
(Oircuit Oourt, W. D. Missouri, W. D. August 18, 1890.) lNlUNOTION-EinNENT DOMAIN-STATE AND FEDERAL COURTS.
Under Rev. St. U. S. § 720, which iIorbids federal courts from staying proceed. ingsio state courts except in bankruptcy matters, a federal court will not, p,eod.' tng a condemnation suit io a state court. enjoin the petitioner from entering upon the land sought to be condemned. ' '
In Equity. . This is an application for the writ of injunction, and grows out of the following state of facts ill substance: The Kansas City Suburban Belt Railroad Company heretofore began proceedings in the circuit court of Jackson county, Mo., for the condemnation of the right of way over the Missouri Pacific Railway Company tracks within the corporate limits of Kansas City, in said county. Conformably to the state statute in such case, upon presenting the petition to the circuit court, that the two corporations were unable to agree upon the compensation, etc., the court appointed three commissioners toteviewthe premises, and,hear evid'ence, and make report. The commissioners proceeded, and made their report, fixing the compensation at one dollar, and determining the point and manner of making such crossing. To this the Missouri Pacific Railway Company filed exceptions in the state circuit court, the gravamen of which was as to the manner of the proposed crossing. 'On the hearing of the exceptions much evidence was submitted by the parties, and the matter taken under advisement by the state circuit judge. That court having adjourned until term in course, to-wit, October next, the controversy in that court is thus left pending and undetermined. The petitioners, John F. Dillon and Edward D. Adams, now Come to this court, and present their petition, stating, in: 'substance, that they