COFFIN 'II. , CHATTANOOGA WATER & POWER CO.
533
ing him from asserting the invalidity of the judgment and from relying upon his discharge as a defense thereto. The cause has been twice before this court upon demurrer. 37 Fed. Rep. 280; 38 Fed. Rep. 878. The facts sufficiently appear in these decisions, and need not be Eitated again. On the last demurrer the present bill was sustained. The court there decided the following propositions: First. That the bill stated a cause of equitable cognizance. Second. That, having affirmed the validity of the judgment in the proceedings in bankruptcy, the defendant is now estopped to impeach it. Third, that if the defendant pleads his discharge ill the action at law about to be commenced, the plaintiff can avail herself of the facts constituting the estoppel, and, upon this branch of the case, is not in need of the assistance of a court of equity. The propositions of law presented are the same now as on demurrer. Some testimony has been taken pro and con, but, upon all important questions, it is substantially conceded that the legal aspects of the cause remain unchanged. It il3true that in deciding the issues presented by the demurrer the court spoke through another judge, but the law there enunciated is not merely the individual opinion of the judge who presided; it is the ' law of this court; to be followed, upon similar facts, until a' different, rule is laid down by the supreme court. A re-examination and discussion of the question involved is, therefore, unnecessary, for the reason that the court is constrained to follow its former decision. It. follows, that the complainant is entitled to a decree for an injunction restraining the defendant from asserting that the judgment of November 18, 187iJ, ' is not valid and does not still stand of record. The complainant is titled to costa.
CoRNWALL 'lI. DA.VIS.
(otreuit Court. S. D. New York. January 7, 1891.) this cause also.
PER
CuRIAM.
The decision in Wakelee v. Da'llis, ante, 532, determines The complainant is entitled to a similar decree.
CoFFIN
et aZ.
'D. CHATTANOOGA
W A.TER &:
POWER
Co.
(Circuit Court, S. D. Tennessee, E. D. January 8,1891.) EQUITY-PRACTIOE-PA,RTIES.
Where a judgment creditor of a corporation files his bill in the cironit conrt to subject the equitable interest of defendant in its mortgaged property to the par.ment of his debt, the owner of the company's property, stock, and franchises WIll not be to becom!" a partr defendant on his petition alleging that he bas already. commen.ced an'eqUlty suit 10 the state court against plaintiff to determine the amount of debt and to set aside certain transactions. between ,them, where' the chancery suit in the state court is in no way affected by suit tile federal court, and the property is .not paying expenses, and the inter-tention of SUlt. , .. . ,.' " " :; .· ,. ,.
,
.
InEquity. r Warder &11Jbans, for complainant. A. Brawner, for defendant. E.M. Dodaon,for petitioner, Dean. KEY, ,J. ' The bill and amended bill, in this case alleged that com· plainantsare creditors of defendant; that they have a judgment upon which execution bas been returned n",lla bona; that defendant has nothing subject to execution. Complainants claim that besides this judgment defendant owes them other debts. It is alleged that defendant has mortgaged all its properfy for the payment of bonus it has issued, which are in the hands of their purchasers, and that these bonds are not yet due, nor is the interest upon them. ,The bill seeks to subject the equitable interest of; defendant in its mortgaged property to be sold to satisfy complainants1.debtsand'such other debts as may be found to be due. In the melin'time a, receiver was asked for anduppointed. John R. Dean comes and :files flIJetition asking to be made a party defendant to the suit; ,He alleges that he wal:l the owner of the propert,y and fran-, chises that ,made the ,paid-up capitalst6ck of thecomipany, of the value 0(.$120,000; and thathe is still the owner of 280 shares of stock of the par value of $28,0001 th..the claims ,to be the owner of 890 other shares ofstock of the par value of 8100 per share, being all the stock of the company except 30 shares, owned by F.A. Berkstresser. He further alleges that on the 19th September, 1889, he and the defendant company had filed a bilUn the Lchan<iery court at Chattanooga against ants and one R. C. Cook to settle various matters of controversy which had arisen between the parties to the suit, and that amended and supplemental bills had been filed and were pending at the time the bill was filed in this court. ThiB bill, as the petitionstateB, alleged that he was the owner of valuable real 'estate on Carneran hill, and had a charter for a railroad to be an incline, and had organized company for that purpose, and had' obtained valuable franchises and donations, aJl of which transferred to the company . ThAt in order fd carry out his schemes of improvemE'nt he had appointed C. Cook as his agent to dispose of a part of the stock, all the stock belonging to Dean. That instead of selling the stock Cook made· a contract with complainants to sell them certain bonds to be issued by the company at the price of 93t cents!?n the doltar, agret;injt they should pave a first mortgage on the'p'roperty, arl<l610 shares 01 the stock of thecompari'y, ($61,000,) Dean reserving the right to repurchase the stoc).{ with,in 90 days from the completion ofthe plant at 25 cents upon the clollar. Dean says he ratified the trade with a. reluctance, as he was in financiahtraits.. bonds Of $1,000 ,each at 941 cents upon the dolIar,andtheanlOunt was to be placed to the credit of the compll:ny inCO:l11plaina#ti!':bahk, and was to be draw.t1.1lpon as the work .plant of the company progress,ed.That in the progres$o( plaioants stopped,. payment of. the' drafts, and demandeda new' 'That Dean was financially embarrassed, and
contract.
OOFFIN 11.
Wp,ER &: ?PWER CO.
535
at the mercy of complainants in his enterprise, as they knew, and of which they took unconscientiousand undue advantage; and, being coerced by these advantages, Dean yielded helplessly to the demands of complainants and Cook,and agreed to a new contract, by which the 50 bonds issued under the first contract were to be taken up and canceled, and 75 bonds of $1,000 .each were to be iSliued, secured as the first were. That 60 of the new bonds were to be purchased by complainantS at 90 cents on the dollar, and the remaining 15 were to remain in the hands of the company and extensions, and .Dean surrendered his option to repurchase the stock. Dean alleges in an amended bi1l in the chancery court that Cook was operating the company as general managerwithout authority, contracting large debts against it,and, if allo'I,Ved to go on, the company would be insolvent. That .the creditorawere clamoring for their debts; its paper had been protested; and its employes were unpaid; and he was operating the incline at .a loss, etc·. As Cook is no Jonger in control of the company's affairs,these allegations as tohim are not important now. Dean's counsel admits question in ,the chancery court s,1,1it is whether the debt is$60,OQQ, or $50,000, as afix,eli charge upon the property, and whether com,pla,inants should pay per qoll,arop the bonds. .':I'he debt secured by: the mortgage. whatever it is, remains a charge upon the plYperty, ,should ,thy relief prayed in this bill' be ·.· ,rbeprocqedings here. in. no way &ffect or stay or, court, the forum of his own choice. The issues there are entirely different. Furthermore, the report of the receiver'shows that the prqperty's, ,income. has :paid but little more t4aQ. theyXpanses under his:.administra,tion of its business, and the street ra.iImad lines and, the incline have ceased operations,an:d nothing, or butlitt].e, of the plant is in use. There is nothing to pay or other running expenses, and the property unused must deteriorate, and . expenses must be incurred in caring for it. Under the delaywhiGh would necessarily result from the admission of Dean ,as party tp' cOntest his issues here, the equity the defendant bas in its property would diminish in value, while the interest upon the debts would increase the liabilities, and no revenues or income is derived to meet any liabilities or expenses. Under these circumstances, and especially as thiesuit does not elllQarraSS Dean's chancery court proceedings, his motion to be become a party defendant to this suit is disallowed, and his petition dismissed. His attitude in the controversy is not a defensive one. His position is essentially. aggressive. The issues he tenders in his petition do not properly arise under the bill. He should become an ratheJ than a
D36
FEDERAL REPORTER,
vol. 44.
YEATMAN
et al.lI.
BRADFORD
et al.
(Circuit Court, S. D. Tennessee, E. D. January 8, 1891.) EQUITY-PRAOTICE-JURISDIOTlON-A UXILIARY BILL.
After there has been a final dElcree and confirmation ot sale in a Buit tor the partition and sale of land, an auxiliary bill seeking to set aside as fraudulent a contract made by the parties after the final decree, and attacking the proceedings in that Buit on the of want of proper service and other irregularities, cannot be maintained. Since there is a complete remedy at law.
In Equity. Nash H. Burt, A. S. Colyar, arid Warder & Evans, for complainants. Olark& Brown, for defendants. KEY, J. The bill in this case alleges that on the 29th day of January, 1883, defendant Bradford, as an heir of P. B. West, filed a bill in this court for the sale for partition of certain wild mountain lands. This bill purported to make the other heirs of said West parties thereto. The present'bil1 alleges that many of the heirs were not made parties to the original suit, and that others were made parties so imperfectly that no decree made in the cause is binding upon them; that 4th October, 1883,a decree was entered in the original cause, which recites that the cause was heard upon complainant's bill, the answers thereto, the judgment pro confesso heretofore taken against a portion of the defendants, and the proof in the cause; and, it appearing to the court that all the parties are 8ui juris, and represented in court by counsel, it is, by consent of counsel for all parties, given in open court, decreed that E. M. Dodson and W. D. Spears be appointed to sell the limds. This order of sale was revived May 9, 1884, and October 7, 1884. On 9th of May, 1885, these commissioners reported that they had sold the lands to complainant Bradford for $3,500, but that he had failed to cornply with the terms of sale. At the same term of the court the commissioners were relieved and discharged, and the clerk of the court, as special commissioner, was ordered to sell the lands. June 29, 1885,the clerk sold the land to one Foster for $2,650. The report of this sale was confirmed, alid the tiUedivested out of his heirs and vested in thepul'chaser, Foster; and it was ascertained upon report that West's heirs were indebted to Foster $1,953.73, and to connsel in the cause $550, while the other costs were more than $150. The payment of these debts and fees and costs absorbed the entire fund resulting from the sale, and nothing was left for distribution.. Foster made an arrangement by which the fees and costs were paid, and, as the indebtedness was due him, thecourt, 16th October, 1886, canceled his notes for the purchase money. This ended the action and jurisdiction of the court over the original cause. The present bill alleges that April 4, 18S7, said Bradford and his sisters entered into a written contract with A. L. Spears, in which Spears agreed to furnish the money to pay Foster the money paid by him in his purchase, and he and Bradford and his sisters were to become,