Ii
.,\,.,
FEDERAL REPORTER,
vol. 43.
late day, take a decree adjudging the title to be in the· government fortha :benefit of the settlers, Paul might be thereby paid, but Peter of the defendants are in possession of the lands, none of them have built their homes thereon. To them the lands are merely a matter of barter and sale, and doubtless all of them would gladly sell their interest to the government. By a purchase from them ·theUnited States would be placed in a position to do justice to the settlers without injuring others. The' obligation resting upon the United States is not a matter of sentiment, based solely upon sympathy for the settlers. Many of these have paid the United States for the lands held by them, and hold patents for them, issued under the name and authority of the United States. It now appears that the United States, the action,of congress, has granted away these lands; and the Wleof the settlers, upon the faith of which they have spent their years strength in improving their fatms, is held to be only wastepaper. The United States stands in the position oLgrantor to the settlers,and, by, the action ofthe government officials, they have been misled on the of. their,right to occupy and improve the lands held,by them. The: wrongthua caused can .only be remedied now by the United States seeuring to them the title to their homes; and this can bedonebypurchasas Bugg-ested"the title of the defendants to the 109,057 acres of land in, the bill herein filed, the powerto do which resides i,n con.. grass Upon the questions presented by the bill of complainant, the defendants>are entitled to a dismissal of the bill upon the merits, and, it is so: ,ordered.
mg,
CoNKLIN
.v.
WEHRMAN.
((;'ireuit Oourt, N.r Iowa, W. D. May 29, 1890.} ;!).
I.
I . ' , ' .
,
:,",' Where the, purchaser of land under an attachment afterwards sues in a court of' COPlpetent. jurisdiction to set aside a former deed of the land from the debtor in the , attachment suit, as fraudulent, ajudgment setting the deed aside is an adjudication of the validity of the writ of attachment, since, tbe attachment proceedings " Jladbeen invaliii,.the purchaser would. have had no rightl:p question the validity .of the ' :SAME'-'-LAOttEs"":'EsTonElh
SUIT BY PURCHASER-RES APJUDIOAT.l.
.
In asuiH.o quiet title it appeareii that. one G., under whom complainant claimed title, purchasell,the land in dispute at a.sale under an at1f;lchment again,st one and afterwards sued to set aside a former deed from W. as fraudulent j " that both defei:ldlmt and W. had notice of the suit; but failed to defend, and the deed was set aside. The evidelJce showed that, at the time the deed was made, W· .; was insolvent, and defendant had no means: The taxes were paid byG. and his ;grantees, incluiling' complainant, and valuable improvements were made on the, 11lnd.pefendlWlt,.having full knowledge of the facts, waited 25 years before setting up any claim to the land, when he brought ejectment.· HeZd, that defendant was estopped 'to assert-title as against complainant, and should be enjoined. ";l
Bill to quiet:title an,d enjoinactioll8 at law.
,CONKLIN ". WEHR_AN.
IS
E.G.Herrick, W. L. Joy, and Warren Walker, for complainant. Ohas. A. Olark, for defendant.'
SHIRAS, J. From the evidence submitted in th1s cause the following facts are deducible: That in June, 1857, Adolph Wehrman bought the land in dispute in this case, together with other lands, from the United States, and obtained a patent therefor on or about the 1st day of December, 1859, the said realty being situated in O'Brien county, Iowa; that in 1858 said Adolph Wehrman 'became indebted to the firm of Greeley, Gale & Co., of St. Louis, Mo., and, as evidence of such indebtedness; executed his promissory notes to such firm; that in 1859 said Adolph Wehrman resided in Pierce county, Wis., and, having failed to pay his said notes to said Greeley, Gale & Co., the said firm brought suit thereon, in the circuit court of Pierce county, against said Wehrman, due personal service of process being made upon the said Wehrman, and also asking the foreclosure of a mortgage given by said Wehrman on a lot in Prescott, Wis.; that a decree of foreclosure' was had in said cause, the realty sold ,that the proceeds realized were applied to the liquidation ortha amount due, in part, and that for the deficiency l!-' judgment was duly docketed against said Adolph Wehrman on the 12th day of Septeinber, 1860, for $1,640.30; that on the 14th 'day of January, 1861, Greeley, Gale & Go. brought suit in the district court of O'Brien county, Iowa., against Adolph Wehrman, upon a transcript of the judgment rendered in Pierce county,Wis., and caused a writ of attachment to be issued' by the clerk of Said court against the property of said defendant, Adolph Wehrman; that at the time named said O'Brien county was a organized county, and no seal had been as for the use of the clerk (If the district court of said county; that in the writ of attachment so issued such fact was recited, and the clerk added a scroll to the writ as the only seal or semblance ,thereof that could be then placed thereon; that said writ of attachment so issued was levied upon the realty in question by the sheriff of said county; that the original nO"tice of the commencement of said action by attachment was personally served upon Adolph Wehrman in Pierce county; Wis., on the 25th day of January, 1861; that on the 17th day of December, 1859, said Adolpn Wehrman executed a deed of conveyance of some 2,060 acres ofland in. O'Brien county, Iowa, to Frederick Wehrman,including the land in controversy, which said deed was recorded in said O'Brien county ordhe 2d day of January, 1860; that the action by attachment pending in O'Brien county was changed 'by order of court to Woodbury county, upon the application of the plaintiffs therein, and on the 17th day of September, 1861, judgment was rendered in favoTof the plaintiffs in the sum of $1,809.48, it being further ofdered that the property attached Should be' sold to satisfy the judgment. No appearance for Adolph Wehrman WIlS entered in the case. That said Greeley, Gale & Co. brought a suIt in equity in the district court of O'Brien county, to the June term; 1862, against Adolph Wehrinan, Augusta Wehrman, his wite, 'and Frederick Wehrman, ,for ,the purpose of setting' aside the con-
in Q'Briencounty:'Qy:Molph to Frederick Wehrman, on the ground that such conveya.UQe:was without consideration, and made to defraud complainants; that personal service of the original '()f suit IrIad'!lu:ppn each .of the defemlants above :fiel,'cecounty, ,Wis. No. appearance was made by said d e named, fendant$, oreHher of them, ipsaidsuit, aud on the 10th day of was taken, aud a decree entered in said cause. setting aside such conveyance to Frederick Wehrman as a fraud upontbe rights decreeing 'said lands to be subject to the judgment in of the to Q6 so14th e reon as the property of Adolph Wflhrman, barring Frederick Wehrman from asserting any title or, to said realty, by. virtueqf said conveyance. That on the 16th'day of June, 1862, an execution was issued upon the judgment in the att,chmentsuit, under, which Jands in question were sold to aud subsequently a sheriff's deed was executed to him, Carlos that by nr,oper conveyances the lands in, dispute were conveyed to T. B. Conklin, the present complainant,jn, 1881 and 1882; that from 1861 ,to the !time of th,ebringing of this suit the taxes on paid Gale & Co., Carlos S. Greeley, and inclUdin,g It .does n?t appell.,r that or Wehrmall ever paId any taxes on saId lahds, Ol',anypart thereef. : 'J:hat since 1882 the complainant, in the full beliefthat he, was the owner of the lands in question , has ere9tOO thereon a. barn" a, granary, (}orn-cribs, and made other impl'ovements,)ncluding up and putting under c\lltivation 270 acrea i' that itisljot ;Shownwbat consideration, if /tny, Frederlcj{ to;bis,prother 'ApoJph for the, <)oI:lveyance of the 11iLOdS toh,im,'por does thatpe had financial ability to make ;that the pf 1858, 1859 were not· paid, and, in the, qf O'Brien county sold the lands in question C. Off, to whoma,tax-deed was iswas <;luly recorded, ,and in May, 1871, said ,a. q,l1itclll;Up, peed for said lan(la to Carlas A. Greeley. 'ii of fa<\ts it appears the complain,title the copteption of ,defendant. w..wit, that. the Proceedings by. attachment against \yepr,mao, and thepresentde(end.,ant, and the whplly void, and that. tl1e is void beofwan,t f),fJ ,wake the ;sale in the .malJ.oer: in which it was 'p.os,itioll 'Qf) the defendant is that to give the court jurisdiQtiot;l in Wehrman it was necessary th!l.t there ,be a va,lid writ of, and leY'Y thereof upon land, asJ\\W?rman we,snotserved .:wi,th notice withiIHhe limits of n.',<>f' the. cou,rt., The p,rinqipal. ob.d ectiollurged again,st these proceedings ia that the, W'ritQfattachment oot to authenticate it., The gen-, era,]. rule ill as to the writs or process issued under the absence of .seal. render$ the writ void.-
a
the seal ahowsthatAhe wiit ,has .not been perfected. _Lackipg the,proper evidence of issuance, it presumed 'that it was inten!;1;eq., ,to be issued,and it; is therefore without vulidity. The tenqency, however, is·to a. relaxation of the former strictness in formal defects in writs or other process. By the provisioIl$of.the. stat1,ltes of Iowa now in force, the failure to attach the seal :could be P'Ul'edhy an amendment. Is the general rule to be applied to ,acaseo! tIm peculiar charact!!r now under consideration? It is not an of,afailure to attach the seal of the court to the writ,therehy justifying the conc1usjon that the same was issued· without authority, but a case .wherein the court waswithoutlln engraved seal. and in lieu thereof a scroll the writ on its face. reciting that ,the court ;had no otheraeal. ,'J.'heQl:,lly theseaUs to authenticate' the .of tlle, "llay I not suoh authentication be furnished in -oiher'ways;;ifJors,llny i-eason'a Court is: without:an engraved seal fora .tim,e? thattp.day, seal of O'Brien county should ;pedestroYed or be stolen. muet all the judicial proceedings therein· be ,brought etand·still, awaiting theprocul'ement· of another engraved seal?' ';Wotjd not this be subverting substance to mere form?" WoUld ,it not. be. permissible for. the; court to continue the iSsuance of. writs of and exectltionshaving attached thereto,a' scroll asa::seal, the writ OQ its face showing the reason therefor? The power to issue writs 'of,attach,ment is conferred, bytbe statutes of Iowa. upon tba·,couttsof .the is wholly independ(1ntof the mode ,of authenticating the latter is merely the evidence of the ,power by Cp\l;rt.lUld it is certajnly, going to an extreme'length to hold that the of the power to the writ granted by statute is wholly d,epend,ent upon the engraved that itt tha abli1ence ,thereof the. power :of the. court is in abeyance., Whateveristhe :solution:ot this question; it was involved in theisslles presented by the "billofeqqity·filed by Greeley,Gale & Co. to. set aside the conveyance ';of theret\ltyby Adolph to Frederick Wehrman. ,It is not questioned Gale. & Co.,w.erecreditors of Adolph .Wehrman.'., Their claim had.been established by a judgment duly obtained, in· Wisconsin. to enforce the collection thereoLby ptoceedings.in ,Theywel'e .O'lh;ienco\lnty. ,Averri'ng that the conveyance. made to Fredenck Wehtman D:lade in fraud· of their rights,and was col()rable:'otll,y', ·being they brougljit a bill in equity against Aq.olph ·and Frederick Wehrman for the.p:t:lrpose of. setting aside the transfer to .the latter.. The question whetherthe attachmenLproceedings gave Gre&.Jay, Gale & Co. a standing sufficient to authorize them to question the :transfer,to Frederick Wehrman lay at the. very threshold of ·these proceedings.The court was one:ofcorupetentjurisdiction.lt proceeded to a decree setting aside the conveyance, and declaring the landlo be :the property of Adolph Wehi;Iilan,andas such to be subjeot to seizure :andsale If there was errorinsuch conch1f$ion touching; the 'validity ;of the.atta(ihmen:t. wl'it,.it ,wasnof an; errOl juns?iction o( tbe.QQUrUIHl1e :equity.case. The couride-
DDERAL REPORTER ,vol.
48.
,termined that Greeley, Gale & Co. were entitled to question the validity oftJhetra'nsfer of the realty, and the effect of such decision and decree cannot be avoided by urging thlit the court erred in holding the writ of attacllment to be v,alid. The state court had exactly the same jurisdiction to hear and determine question of the validity of the seizure of the land und\lr the writ of attachment as this court now has to investigate the same question. " Being clothed with jurisdiction, and having determined the question, its decision and decree are not void, puhnustbe respected and enforced. ,So long as that decree remains in force, it cannot be claimed that complailllints are without title to the premises in dispute, for the sale made thereof to Carlos S. Greeley was in fact made under the authority of that decree. If, however,the court is in error in the view taken of the force and effect to, be given, to the decree in' equity'setting aside' the transfer to Frederick Wehrman, there is another andsuttlcientg,round for a decree in favor of complainant. The evidence shows that both Adolph 'and Frederick" Webrmanl:1ad' actual "notioeof the ,to enforce, the collection of'rthe debt due Greeley, Gale & Co. by a sale of the lands as the propertydofAdolph Wehrman. Frederick Wehrtitle was attacked. Hepet:mitted the' decree to he man knew that 'taken, the sale to be made, and allowed Carlos S. Greeley to appear as the owner thereof for years. He neV'er caused the lands to be assessed to himself, nor did he ever payor offer to payor attempt to pay any of the taxes assessed t"pon the property. Parties purchasing frOm Greeley finally commenced improving the property by cultivating the soil and erecting.buildihgs thereon. For more than 25 years Frederick Wehrman retilainedwholly silent, knowing that by his silence, he must, of necessity, be misleading others to their injury., In the bill filed in this cause it is charged that the transfer to him was without consideration, and ,for fraudulent purposes" yet, he does not testify in relation thereto. There is no evidence showihg that he ever paid anything for the lands, or that he, in fad" ever claimed. the same as his own property, except ,the .hareJaetthat, after a delay of a 'quarter of a century, he brought ,anactionineJeetment to obtain possession of the property. The evidenceon behalfof complainant shows that Adolph Wehrman, when be 'made the ,transfer, was insolvent; that Greeley, Gale & Co. were presscipg the collection of their claim j that Frederick Wehrman was not tQepossession of the means to pay the value of the lands so transferred 'to him, and there is no evidence tha,t he ever paid a dollar therefor, or ,ever exercised any act of ownership over thesall1e. The evidence, therefore, entirelyjustifies the finding that the transfer to the defendant was without consideration, and fraudulent, as against Greelel', Gale & Co" and that ,Frederick Wehrman never wRsin fact the real owner of , ,the lands. ' , Under these' 'circumstances the oomplainant" on the double ground ,thatthe defendantis not; in fact, 'the real Qwnerof the property, and has no: interest therein which he can avail himself of as against the equities of lCOmplainl).nt, and: ,that defendant· has) by his 'COnduct, 6$-
in
NORTH GERMAN LLOYD
S. S.
co. .,. HEDDEN.
17
topped himself from asserting title against complainants, is entitled to a decree quieting his title against the claims now sought to be enforced by defendant,. and enjoining Ji'rederick Wehrman from further prosecuting the action of ejectment pending in his name.
NORTH GERMAN LLOYD S. S. CO. SAME t1.
t1.
HEDDEN, Collector.
MAGONE, Collector.
(OircuA.tCouTt, D. New Jersey. May Ill, 1800.)
L
Act Congo ;Tune 26.1884, § 14, which levies a duty of 8 cents per tbn on all.vessels "trom any foreign port or place in North America, Central America, the West India islah4s, the Bahama islaMs, the Bermuda islands, or the Sandwich islands, ot Newfoundland," and, a duty of 6 cents per ton on vessels from other foreign ports, does not entitle German vessels sailIng from European ports Wenter our ports on payment of a duty of 8 cents per ton. under the treaties of December 20, 182'7. and May 1, 1828. which stipulate that the United. States shall not . flivor regarding commerce or naVigation to any other foreilPlllation . which'sliall not immediately become common to GerlDsnY,slnce the discrlminatlon cPJ;ltsined in said act is me!-'ely geographical, and the 8-cent rate applies· to ves., selS 'of all nations ooming from the privileged ports. ' TREATIES-EFFECT OF INCONSISTENT ACT OF CONGRESS.
CUSToMS DUTIES-CONSTRUCTIONOF
TAX.
II.
Whelie,an act of congress is in conflict with a prior treaty the act must oont.rol, since Iti& of equal force with the tteaty and of later date. i .
S.
CONSTITUTIONAL LAW-CoMMISSIONER OF NAVIGATION.
Act July 5. 1884, § 8, which makes final the decision of the commissioner of DSvigatlOn on all questions "relating to the collection of tonnaKe tax., and to the refundIng of such tax, when collected erroneously or illeKally," is constitutional.
At Law. Samuel F. Bigelow and Hemry a. Nevitt, for plaintiff. Howard W. Hayea, Asst. U. S. Diat. Atty., for defendants.
J. The plaintiff, a duly-organized corporation under the W laws of tpe Hanseatic repUblic of Bremen, which is a part of the Gerxnanewpire, is the owner ofa line of ocean steam-ships, plYing regularly between the ports of Bremen and New York, and brings these actions; under section 2931, Rev. St. U. S., to recover the amount of certain'tonnage dues, alleged to have been unlawfully collected from said ships during the period extending from June 26, 1884, to July 28, 1888, ,and w:hile th,e were successiveIy collectors of customs at the last-named port. The vessels cleared from Bremen for New York via§outhllmpton, Eng., stopping at ornear the latter place temporarily; .to cargo and passengers, and to take on board additional cargo, passengers, and mails. The consignees of the vessels paid the duefl, iQ every instance,. under protest, and the plaintiff appealed to the secretllry of the· ,treasury, and finally; at. the suggestion of the latter officer ang of department of justice, brought these actions to determine the authority 9£ tile dl;lfendaQfs. . . . . v.43F.no.1-2 .