acknowledgment is not ti'legal record importing verity, and ,admissible in evidence, see McOle]' Dig; Fla. pp. 215,216, §§ 6, 8, 9, p. 514, § 8; Thomp. Dig. Fla. pp. 180, 181, 343; Sanders v. Pepoon, 4 Fla. 465; Doev. Rae, 1 Johns. Oas. As complainant's deed has not been recorded as other deeds of land in the office of the county clerk of the proper county, and as, under the statute, it is to have effect only when so recorded, it cannot be used and considered in this case as prima facie evidence of the regularity of all the proceedings from the valuation of the land and the sale thereof up to the time of its execution; nor can it be held as a complete bar against any and all persons who may claim title to said lands in consequence of informalities or illegalities in taxes or proceedings, nor can it be held as giving the person named in the deed any possession of the premises. As further tending to defeat the complainant's title, it may be further noticed that on "the 25th day ,of April, 1873, when the commissioner of lands and 'immigration executed the deed in question to complainant's predecessors, the law in force in the state of Florida in relation to recording conveyances of real estate provided: "Every conveyance of real estate within this state hereafter made whicb shall n at be recorded in the county in which the lands are siturlted within six months after the pxecution thereof shall be void as against any subsequent purchaser." See Florida Laws 1873, p. 18, c. 1939. By the certificate of record to above, it appears that the said deed olthe commissioner of lands and immigration, executed the 25th of April, 1873, was not recorded in any manner whatever until the 20th day ofJune, 1876, during which time the defendant's title was acquired frorrithesthte by deed exeouted by the county clerk of Volusia county on the 5th da)' of August, 1873. " ' A ,decree will be entered dismissing complainant's bill, with costs, ' ' February 23, 1891.
HENRY
et 0/. ",.
,TRAVELERS' INS,
Co.
(Ci.rcuit court, D. Colora4o. 'February 23, 1891.) 1. EQurM'""'-PLJlADING-ORIGINALBILL-AMENDMENT. Plainti1rs' ,bill alleged that defendant W1Io& about to sell certain stocks delivered to it 1'\8 collateral secudty for money to plaintiffs, ,and it prayed a full accoulitit% an injunction agaiQllt the threllteried sale. and that in case any sales were madeberore final hearing they-might be declared void. After an account l:Jad been taken, plaintiffs filed a SUP,p,lemental bill, alleging that a sale had been niade1 and praying damages., Held tbat, as plaintilfs knew all the facts conneoted witn the sale, this new matter should have been,brougl:J,t in by ametldment to the original bill. , 2. SAME-SUPPLEMENTAL
,
,T,,be;p,I1000edS, of ,the sale were taken intO:c,onsideratioD in the aecounting'haain
"
the,ClL8, a,tth,e,,hearin,gplain,t"Uf,'s, didnotinSiS,ton, an,y exc,epti,'onsto"the, master's report. ,The SUPPleIJ;l.ental, was, filed, 1I10,re ,than fiV,e years,,a, P,,lSl,'nti,tr. ,<bad <lIotfull'of-tbllllale, and- severiLl months after final decree. I;leld, tlia, \he sqpplemental bill was filed \O.l&te, and ehould 'be dismissed J .',' ". " , ,. ,
800
J'EDERA.L
vol. 45.
In Equity. On demurrer to supplemental bill. For former reports, see 33 Fed. Rep. 132j 34 Fed. Rep. 258j 35 Fed. Rep. 15j 42 Fed. Rep. 363. The object of the original bill was to establish a contract, and for an accounting between the plaintiffs and the defendant on the basis of the alleged contract. The bill alleged, among other things, that the defendant held various notes, mortgages, bonds, and stocks as collateral security for money borrowed by the plaintiffs from the defendant, and that the defendant had given the plaintiffs notice (a copy of which was set out in the bill) that it would, on the 28th day of September, 1885, sell certain named stocks to pay certain specified debts, for the payment of which the stocks had been pledgedj and, in addition to the prayer for a full accounting, the bill prayed for an injunction to restrain the sale of the stocks mentioned in the notice, and "that, if the defendant in the mean and before the final hearing of this cause, makes any sale or: salEilS of any of the property pledged as security for said debts, or any thereof, that all of said sales bE;) declared null and void, and for naught held." The bill was filed in Denver, Colo., the day the sale was made in Hartford, Conn., and nO injunction was moved for or issued. The court found. and decreed that the defendant had entered into a contract with the plaintiffs in substance and effect as alleged in the bill, and it was referred to a master, to take and state the accol:lnts between the parties. 33 Fed. Rep. 132. Months were consumed in taking testimony as to the state of the accounts. The master made a voluminous report, covering all the dealings betwe.en the pa+ties, and settling and adjusting the various accounts. If the plaintiffs filed any exceptions to the master's report, they were not insisted on at the hearing. The defendant filed numerous exceptions, some of which were sustained, and the accounts in some respects restated by the court, and a final decree rendered on the 15th of May, 1890. 42 Fed. Rep. 363. The plaintiffs had notice of the sale of the pledged stocks at the time the sale was made, and the testimony in the original cause disclosed the fact of sale, and everything connected therewith. The supplemental bill, among other things, alleges: "That in the month of September, 1885, the defendant gave your orators notice that the defendant would sell atptiblic auction at Hartford, Conn., a great part of the stocks pledged as collateral security to pay certain debts, aud which have been above described, to·wit: " ·HARTFORD, Sept. 11, 1885. ", ':I'o 1.'. O. Henry, Ellen O. Hen1'1/' H. J. Aldrich, Oolorado Loan and Trust Oompany, Grand River Ditch 00., Uncompahgre Oanal 00., Denver Oircle Real Estate 00., Denver Oircle Railroad 00., of Denver, Oolorado,' 1.'. O. Henry & 00., 1.'. O. HerI,1·'U. and George W. Oarpenter, of Abilene, Kansas,' Henry Mercantile 00., Henry Town and Land 00., of Henry, Oolorado,' Fruita 1'own and Land 00., ofFruita, Oolo.; OitOolorado: izens' Ditch and Land 00., of Henry and
.. 'You will please take notice that. the Travelers' Insurance Company hereby demands of the respective makers or indorsers, .or of any other party interesteq in the payment, on or about 12 o'clock of Monday.Septilmber28, 1885, of the following specified not6IJ·.to-wit:,._ . __ ,
HENBY V. TBAVELEBS' INS. CO.
801 Amount. · $25.000 30,000 50,000 1,500 3,000 5.000 50,000 5,000 4.000 5,000 6,000
Date of Note. Mar. 25, 1884, Signed, Mar. 10. 1884," May 22, 1884," Oct. 7, 1884," Dec. 8, 1884," May 18, 1884," May 27, 1884," June23, 1884," June 24, 1884," .Tuly 1, 1884," July 1, 1884," July I, 1884,"
Maker. T. C. Henry, T. C. Henry, T. C. Henry, T. C. Henry, T. C. Henry, Colorado Loan & Trust Co., Uncompahgre C'l Co., Colo. Loan & Trust Co., """ ".." ".." ......
With interest on each of said notes.. Unless the above said notes are paid within the time above mentioned, the Travelers' Insurance Company hereby you notice also that it will sell, on Monday, September 28. 1885. at 2 o'clock P. M., at the office of said company, in Hartford. Conn., at public anction, the following securities deposited with this company as collateral security for the payment of said notes, according. to the terms of the respective pledges, 11,845 shares Grand River Ditch Co.'s stock; - - - shares Fort Morgan Irrigation CO.'s stock;.3,401 share!l and Canal po. 's stock; 900 shares Denver Circle Real Estate Co.'s stock; 500 shares Denver Circle Railroad Co.'s stock; 495 shares Henry Mercantile Co.'s stock, Henry, Colo.; 300 shares Henry Town and Land Co.'s stock. Henry, Colo.; 1,000 silares Fruita Town and Land .co.'s stock; 985 shares Citizens Ditch and Land Go.'s stock; 3,000 shares Vncompahgre Canal's stock. . ' [Signed] " 'J. G. BATTERSON, President.'" This is the same notice exhibited with the original bill. The supple.. mental bill then alleges that the stocks, with trifling exceptions, .were sold in pursuance of this notice for much less than their real value; that the. sale was brought about by the frauduleQt and oppressive conduct (which is set out in detail) of the defendant, and was illegal and that the stocks were of .the value. of more than one million dollars; and that the damages oecasioned"By reason of the and fraudulent sales and conversioI\s of said property by said defendant to its own use aggregate more than the sum of one million of dollars.' '" '" '" And because sllid property has been so disposed of.. and illegally and fraudulently converted to the use of the said defendant, and a part thereof sold and delivered to third persons, so that it cannot be returned to your orators,and because your orators elect hereby'to recover ftom said defendant the value of said property so illegally sold, disposed of, and converted by the said defendant, and the damages to your orators thereby, in lieu of the return of said property. as prayed for in said original bill, your orators therefore pray that the value of said property, "and the damagesoc!laeioned by such illegal disposition, sale, and conversion thereof, and said failure to perform and contract, as aforesaid, be ascertained in this suit, and that your orl!otors, Henry and the Trust Company, have jUdgment therefor, and that the.defendant be decreed. to pay unto your orators, Henry and the Trust Company, the value of said property. so found and ascertained, and the damages found and ascertained,. together with costs of this suit." John P. Brockway, TIwma8
Wolcott
Patter8CYn, and Willard Teller, for plaintiffs. Vaile, Coorlea H. Toll, and D. V.Butl'm, for defendant.
J., (after stating theJactsas above.) ThisbHl sounds in only. It seeks to recover damages for the alleged illegal converaionof the stocks, and consequential damages re,sulting from 'the conversion. Confessedly, a court Of equity would have no jurisdiction of thecise upon original bill; but it is urged that a supplemental bill is but a.continuation of the original case, and that equity, having jurisdiction for some purposes, will retain it for all, although some of the matters, ,iftaken .separately, would be exclusively cognizable in a court of law. Conceding this to be so, it does not meet the difficulty in the plaintiffs' case. The matter UP:9n which the supplemental bill is based was known to the plaintiffs withjn a few days after the original bill was filed; 'and before any answer had been filed Indeed, the bill anticipated the sale day they were advertised to be sold,'viz.,28th September,1885,and contained a prayer adapted to that state of ease. The old rule that' nothing can be inserted. in an original bill by way of amendment which has arisen subsequent to the commencement of the suit.has been abolished in England, and, if not abolished, very much relaxed, in this country. Mr. Daniell says: "The rule which forlllt>rly existed, that a'plaintiff ought not to introduce facts by alDendmentwbich the filing of the original bill. has been abolished, and the facts and circumstances occurring after the instil ution of a Buit mliybe introduced into the bill by amendment. if the cause is otherwise ina state in which.an amendlDt'nt may be made, and, if not, they Illay be. added bY,supplemeutal statt'ttl,ellt." Daniell, Ch. Pro pp. 406, 407. .:
But thi,Hase falls within One of the exceptions to that rule, viz. ,that Ii. bill ma.ybe amended by adding new or supplemental matter any time
before the defendant bas put in his answer. Story, Eq. Pl. § 885. The plliintiffshavingalleged in their bill that the stocks would be E'0lc1 on the they' filed their bill, and having knowledge of the sale within a few was made, and' before the defendant had answered, it was compett.ntfor them, under equity rule 28, to have amended the bill, by fletting up the fact that the stocks had been sold in pursuance of the 'noticese'tiout,inthebill, and adding such prayer Rsthey saw proper. ltis'doubtful,whether anyamendmertt was required to bring the mat-: terintothe :acCOlll1t. ,1t!r.Barpounays:' deel-eefor an account, the accounts may be taken down to the time, Qt report, without filing a supplemental bill as to matters since the filing of the originallJill." 2 Barb. Ch. Pro p. 63.
bill. Where the end may an amendment)a:'/iupplemeptal bill will not be a,Ilowed, .Mitf. Eq. Pl. 49.. The to amastedo BOlte the,accounts. The p.rools ta:ken before the master showed thesal¢ ohtocks,'and of the's!ile were taken intoc'onsiderationin stating the The plaintiffs 'did not:except to the master's on, none at the hearing. The cause waspt'nding more ,ang"QlQl'e thllnfive years'after ,the plaiJitift's had
rio am,endmeiit" but
ease. . The pTaip'ti ffs , witbfull kndWledge of the sale of the stocks,m.a,de
"But no opinion is expressed astothe applicabilityof this rule to this
l{ENRY, V. TRAVELERS'II!Q'S. CO.
303
notice of the sale of the stocks, and several months after a final decree in the,cause,:withoutthe leave-Of the court, .tbissupplemental bill was filed, claiming damages for the alleged illegal conversion of the stock, by the sale mentioned. The bill comes too l!tte. It is ,well settled that a supplemental bill brought for new mat1;Elrm,ust be filed as soon as practicable after the matter is discovered.
'. "To entitle a party tofiiesuch a bill, it is necessary that the new matters should be discovered after the decree,()r at leMt. after the time when it could havebeeh introduced into the callSejl)ecause a party is not to beperD;l1tted toamEmd his case after tbebearing, in respect of matter which was before in his power. It has been decided with at'eference to a bill of this nature that the question always is, not'w,hllt thecQmpIainant knew, bllt What, with reasonable. cUJigence, kI\own; and the de<JisiQJ;ls with regaid to bills of upon facts ne'wlydiscovered upon new evidence, which, if prod need in time, would have supported the original case, and are not applicable where the originaJ cause would not l)aveadmitted;the introduction of the ev;idence·.as, not\lei,ngput jn issue. originally. Whe!e a party was aware of 'the 'fact In question, or. by diligence, cj)uId have acquired the information,'befol"6tbe decree, he shohlll' have flIed a supbill ,gaining that inforrp!Piio.n ,:WblCbcould'put hIm uponiUqulTy., 'He cannot, In such a,case, resort to th,ls Barb. Ob. Pro pp.363.364., I. : billafterg01J;lg to a
Mr.H<iffmanstatesthe rule iuthis lanKu'age:
."
'., ,--"
:
, .. will Dot be perJhitte!l tofile'a supplerileiltalbillwhimhe has submittedor agreed to a decree, after full of tbe flictilwbich h'eseeks to bring, forward by the's\l:ppIementaI bill.", 1 Hoff. Oll.PI'. p. 898., ':., '
And the rule isstated'inthesame terms by Judge Soory. , PH§§ 338a, 423; Daqlell, '{Jh>Pr. 1537, and note; 2 Barb. Ch. Pi.6q, 61> if a party proceed's to a.' decree after the of the upon the new claim i,s he will, p()t, be #(tera supplemental bIll fonD,ded on ,such fact$. Pt:. 2. It general ,ule ofequ.ity muat be ,obtained to file asupplelllentalbill. Q,nd equitYl'ule 57, by iJDPlipationrequires .it. Daniell,Ch. Pro 1523, note 2; Id.1537:j note Pro 403;. But the objection thatthebillwRs ·filed withL out leave is not matter demurrer, but, only groun,d. to dismiss,'., in the discretion, of the court." The supplemental bill. discloses' on its face the faei that it was not filed in time, and the defect may be reached by Treati1?-g the 'demurrer as a plea" the ,result would be the (l:Lcts disclQsed by the record. The demurrer is sustained, same and the bill dismissed. '
-'
l
'J
·
:304 CHICAGO,
FEDERAL REPORTER,
vol. 4.5. & R. G. R. Co.
R. I. & P. Ry. Co.
t1. DENVER
(Circuit Court, D. Colorado. march 14,1891.) CONTRAOTS BETWEEN RAILROADS-USE OF TRAOKS AND TERMINALS.
contract between the Chicago, Rock Island & Colorado Railway Company: and the Denver & Rio Grande Railroad Company for the joint use of the railwav of the latter company between and including Denver and Pueblo construed, and held, -First, that the Chicago company has not the right to use the Denver terminals for the cars it operates and the business it does over the Union Pacific Railw,ay ; second, that the Chicago company has the right to do its own switching and handle its own freights in the joint yards, but its switching engines and laborers must work under the orders, superinten'dence, and direction of a superintendent or other officer appointed by the Denver & Rio Grande Railroad Company, and invested with the sole and absolute superintendence and control of the work in the joint yardsi third, that, under the clause of the contract excluding from ,its operation the "soops at Burnham, " the shop-grounds appurtenant to the shops are excluded. (SJ/Uabus by the OouTt.l '
In Equity.
Th(Yf1UJ,8 F. Withrow and Thomas S. Wright, for plaintiff. E. O. Wolcott and J. F'. Vaile. for defendant.
Bill for injunction.
nant property, a portion of the main line of which extends from Denver through Colorado Springs to South Pueblo, all in the state of Colorado; and the Chicago Company owns a railway which is being constructed from the western boundary of the state of Kansas, at which point it will connect with the Chicago, Kansas & Nebraska Railway, to the city of Colorado Springs, above mentioned. . "Second. The interest of both parties and of the public will b!l promoted by the establishment and operation of a through line of railway between all the points ofthe line of the railway of the Denver Company between and including Denver andSonth Pueblo, and all points on the line of railway which will be operated by the Chicago Company, and on the system of railways of which the Chicago Company will form a part. "Theretore, in consideration of the premises, and of the several covenants, promises, and agreements hereinafter set out. the parties do covenant, promise, ann agree. to and with each other, as follows: "Article 1. The Denver Company covenants, promises, and agrees to and with the Chicago Company: Section 1. It hereby lets the Chicago Company into the full, equal, joint, and perpetual possession and use of all its tracks, buildings, stations, sidings, and switches on and along its line of railway between and inclUding Denver and South Pueblo, excluding its shops at Burnflam, meaning and intending hereby to include in the description aforesaid all
On the 15th day of February, 1888, the defendant, the Denver & Rio Grande Railroad Company, and the Chicago, Rock Island & Colorado Railway Company, both Colorado corporations, entered into a contract relating to the joint use and possession of the railway of the defendant between and including Denver and Pueblo. The contract is too lengthy to be set out in full, and, besides, much of it has no b.earing on the questions now to be decided. Only those portions of it eSsential to a clear understanding of the present issues will be referred to. As much depends on the .preamble and section 1 of article 1, they are here copied: .. First. The Denver Company owns and operates a railway with appurte-