, EX PARTE MEKSING.
17
I<Jx p1Lrte MENSING. CLAFLIN et al. v. SOUTH CAROLINA R. CO. et al. (Circuit Court, D. South C1Ll'olin1L. April 12, 1893.) EQUITY-PARTIES-INTERVENTION.
'Vhere, in a suit in equity, an execution has issued, and a levy and sale have been made of certain lands, a third party, who claims to be the true owner, cannot intervene, for the PUl1)ose of moving to set aside the execution, when there is no privity of estate between him and the party against whom the execution has issued. His remedy is a bill to quiet title, or he may, in an action at law, plead the invalidity of the execution.
In Equity. Petition by Henry C. Mensing for leave to intervene in the suit of Calvin Claflin and others again.3t the South Carolina Railroad Company and others. Denied. C. B. Northrop, for the motion. ':Mitchell & Smith, opposed. SIill0NTON, District Judge. The petitioner alleges that under an execution issuing out of the equity side of this court, in the main cause, certain lands of his were levied upon as property of the South Carolina Railroad Company, and attempted to be sold; that claiming under this sale, D. H. Chamberlain now seeks to dispossess him. He also alleges that many persons, complainants in the main cause, have died, and were dead when the alias execution under which the marshal proceeded was issued, whereby the said suit was practically suspended, awaiting the renewal of the suit, or the suggestions on the record, and that so the said execution was void. He also alleges that the execution was void the time for the issuing of an alias execution under the law controlling this ease had expired. He seeks to intervene in this case for the purpose of moving to set aside said execution, fea,ring that he cannot attack it in any other way. He has not alleged-in fact, he cannot allege-that he has any privity with any party to the main cause. He denies, himself, that he has any privity of estate; for he does not claim his land by or through the South Carolina Railroad Company, and on the contrary denies its title to or claim on this land. Under these circumstances, he cannot be made a party to the main case. 'l'he case cannot be res judicata as to him, or affect his rights at all, if his contention be true. He is an utter stranger to, and is not affected by, it. The only mode in which he could get into a court of equity' on the grounds set up by him would be by bill to quiet title. But inasmuch as there is a :shit pending between himself and D. H. Cham· berlain, and about to be tried, attacking this title, and testing its validity, a bill to quiet title would not lie. Story, Eq. Jur.§ 826. If, as he alleges, this execution is utterly void, he can, in his defense at law, avail himself of this, if the execution be offered in evidence as a link in the chain of plaintiff's title. The petition is dismissed. v.55F.no.1-2
18 ,.
FEDERAL REPORTER I' . , : :,: : \ .,
vol. 55. I. , ORMAN.
NORTH ALABAMA DEVEWrMENT CO., Limited, NQ.
of Appeals, Fifth Circuit., ¥arch.6, 1893.) I. COVENANTS TO PAY ANOTlIER'S DEBT-AcTION BY CREDITOR.. i
)Yhere the grantee of land COVE-nants that as. partot the consideration pay cerwin notes given bY.h.is grantor for deferred payments when purchased the land, the payee, IlIider the laws of Alabama, may proC()ed' at law lIgainstthe covenantor; and his so proceeding is such an acceptance ot the covenant as draws to him the exclusive right of action thereon. Aftirming 53 Fed. Rep. 469.
8. SAME-REMOVAL TO FEDERAL COURT"':'-JURISDICTION. Where such proceeding, begun .in the state COllrt, is removed to the United States circuit court, it proceed therein as an action at law, I1S it would have done in the state court, and the jurisdiction is not
will
a.
affected by stipulations between the parties.
SAME-CONSTRUCTION-NoTE SECURED
The granteQ of land covenanted that as part of the consideration therefor he would pay certain notes made by [he grantor. These notes re' cited that they were secured by mortgAge on the land, and that in case ot toredosure the maker should be liable only to the extent of the proceeds ot the sale, 'which proceeds shouid constitute a cancellation ot the note. In the mortgage a power ot sale was granted the mortgagee, the payee ot the notes. Held that, since neither notes nor mortgage required a sale ot the land upon default in payment, the covenantor was liable in an action at law tor the face ot the notes if not paid at maturity. Affinnlng 58 Fed. Rep. 469. By the express provision ot the Alabama Code, § 2940, an attachment mfty issue In an action against 11 foreign corporation which has property within the state. Affirming 53 Ii'ed. Rep. 469.
MORTGAGE.
j, ATT.I\.ClIMENT-GROUNDS-FORETGN CORPORATION.
In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Alabama. Action by W. A. Orman against the North Alabama Development Company, Limited, of London, England, a corporation, ori{.,rinally brought in the circuit court of Franklin county, Ala., and thence removed into the United States circuit court, where a motion to dissQlve an attachment issued by the state Murt was overruled, and juciJ,gI1lent given for plaintiff. See 53 Fed. Rep. 469. Defendant brings error. Affirmed. Roulhac & Nathan, for plaintiff in error. W. L Bullock and Milton Humes, for defendant in error. . .PARDEE and McCORMICK, Circuit Judges, andTOULWN, Di!i\trict Judge. "',
:[1,. '
McCORMICK, CirclIit Judge. Defendant in :eri'or brought his actions atJaw in a state. court in Alabama on a certain covenant in a deed. from one Parish and wife to the plaintiff in em!", which eovenantbl in thesewol1ds: "And it Is hereby coven:uited and agreed by the sald pli'ty of the second part, to and "ith the said pa1"t;Y ot the· tlrst part, that the· said party ot the second part will lISBume, and does hereby assume, the full and just payment at maturity ot the two notes hereinbefore mentioned, given by the Illlid partJ,
