BANDE.RSlI. DEVEREUX.
311
SANDERS v. DEVEREUX et Ill. (ClrcuUl Court of Appeals, Eighth Oircuit. February 12, 1894.) No. 831-
1.
PARTITION-POSSEssION_JURISDICTION.
The circuit court of the United States cannot entertain a bill to partition lands where the complainant has been disseised, and the lands are held adversely by the defendants, and the purpose is to recover possession of the premises in dispute as well as to partition them. even though such a pr.oc.eeding may be maintained in the courts of the state. Where a bill for partition does not state that the complainant Is seised or possesseu of the land, and shows that the land Is within a city, and has been subdivided into numerous lots, claimed by different persons,lt will be construed, on demurrer, as showing that the complainant has been disseised. :A dismissal of a suit In equity on the ground' that there is an adequat:fl remedy at law should be without prejudice to the right to sue at laW.
2.
SAMIjl-BILL-DEMURRER.
3.
EQUITY ,PRACTICE-DISMISSAL WITHOUT PREJUDICE.
Appeal from the Circuit Court of the United States for the District of Kansas. Suit by Antoinette C. Sanders against Thomas Devereux and others for partition. The suit was dismissed on demurrer. Complain· ant appeals. This was a blll filed by the appellant, a citizen of the state of Illinois, against more than 100 defendants named In the complaint, who were, for the most part, citizens of the state of Kansas, to obtain a partition of the N. W. 14 of the S. W. 14 of section 23. in township 27, range 1 E., In Sedgwick county, Kan., which tract of land appears to be within the corporate limits of the city of Wichita. The bill contained the following averments, In sub· stance: That on December 11, 1873, Lindley Lee and wife conveyed the property In question to George A. Banders, the husband of the appelL'lnt, as trustee for their three minor children, to wit, Walter L.· Alice B., and Fannie A. Sanders. That such deed had the effect, under the statutes of Kansas, of conveylng'directly to the three children aforesaid an e$tate In fee simple In said lands" which they held as joint tenants, and not as tenants in common. That Alice B. Sanders died on February 19, 1876; that Fannie A. Sanders died on February 22, 1876; and that the title to said property thereupon became vested in Walter L. Banders, the surviving joint tenant. That Walter L. Sanders subsequently died, Intestate, on July 20, 1888, leaving no wife or children, and that by virtue of his death his mother, the present appellant. became entitled to an undivided one-half of the above-described property. under and. by virtue of the laws of descent of the state of Kansas. The bill of complaint further disclosed that on the 3d day of March, 1883, subsequent to the death of her two children, Alice B. and Fannie A. Sanders, the appellant, Antoinette C. Banders, had joined with her husband, George A. Sanders, in a deed to Thomas Devereux, which on Its face purported to convey the whole property above described, and the entire title thereto, to saId Devereux, with full covenants of warranty, It was further disclosed by the bill that on March 7, 1883, George A. sanders had executed a frn1:her conveyance of the same property to said Devereux, which was signed by the grantor as trustee .for his children, Walter L., Alice B., and Fannie A. Sanders, two of whom were then dead. The appellant averred that she joined her husband in executing the deed of March 3, 1883, In the belief that her husband was thereby conveying some Interest which he then had In the property, and that her signature was necessary to relinquish her Inchoate right, under the laws of Kansas, In and to the real of her said husband, which he was then conveying. She further averred that she did not intend to join, and did not in tact join, In the covenant ot general warranty which that deed contained.
312
FEDERAL REPORTER'.
vol. 60.
The bill also averred In substance, that Thomas Devereux conveyed the property in controversy to ,J1>un M.fSteele oll'March 17, 1883, by a warranty deed to convey th,e whole pt<Werty and the entir,etitle; that on which November 1883, Steele,'in'llke manner, conveyed the land to A. C. Payne; that on September 80, 1884, Payne platted the property, laying it off into blocks, with 'streets and illleys, and caused the plat to be duly filed and recorded under the name of College Hill addition to the city of Wichita; that Pliynethdfuilfter sold and 'co:ttfeyed by warranty 'deed variottsportlons of the had been 1:hus platted, to several different grantees,and in such'deedsdescribed theprbperty sold bystibdivisions ,and lots, according to 'the: recorded plat. The bill further shoWed that thereafter certl1in portions of said property had' beeh subdivided 'into smaller lots, alld had again been ,platted as "Hillside Subdivision of College Hill Addition," and as"Lenore Addition to the City of Wichita." The appellant averred that the platting of'the property last aforesaid was done without her knowledge or consent, and that the aforesaid deeds, purporting to convey the whole title to the property therein were each made'and delivered without her knowledge or consent. She also averred that all of the persons named as defendants in the bill were sevenalIY claiming some interest In the property, the precise ,nature of which she, was unable:to,state, under the two deeds executed by, kerselt and husband on March 3 and March 7, 1883. The bill contained no averment that at the time the suit was instituted the complainant was s\1i$W or possessed: of any portion: of the property in dispute, or that she had ever been in possession of the same or of any part or portion thereof. TIle, circuit a demll1'rer,:tQ the complaint, for want of equ1ty, ,and thereupon enteredafiJial decree dismIssing the same. To reverse that; decree theeOnlplainant has'pl'osecuted an appeal to this court.
(L. ·. :Irellogg, on the brief), for (GeorgeL. Douglalils, C.H. Brooks, Edwin W. Moore, W. E. Stawey,and J. E. Hume, on the brief), for Before O.A.U>WELL and SANBOUN,CircuifJudges; and THAYER, District Judge.
, THAYER, afterliltating the as above, delivered the opinion of the court. The first. question which deservesrionsideration on this appeal is the averin,ents of the complaint, a federal court sit· ting in Kansag has any jurisdiction to ,administer equitable relief. The bill may, be searched in vain for any allegation that is tantamount to a direct av-ertnent that the, appellant is now seised and possessed of any part or parcel of thelands which form the subject· matter of the controversy, while the' strongest inference arises from several allegations, anq from the whole scope and tenor of the com· plaint, that she, has been, actually disseised, and, that the property is now severalty by numerous personS,who are holding the Sll:me to the appellant. The bill shows that she is a nOllresident of the state of Kansas; that more than 10 years ago, being then a nonresident, she joined with her husband in a deed of general warranty, which ,purported to concontaining vey the wholE:,propertyand the entire title; that;many deeds of a like character, affecting certain portions of the land, have since been made by divers and sundry persons claiming under the conveyance execu,tedby the apPellant andber husband; that the entire property platted.,as an addition to the city of Wichita; and that portions, thereof; haV'e been subdivided into smaller additions
case
BANDERS V. DEVEREUX:.
313
to the same city. We are no doubt authorized· to infer from what Is aIleged in this respect that for eight or ten years, at least, the property has been situated within the corporate limits of a large city, and has frequently changed hands, and been to some extent improved; and this fact, taken in connection with the number of persons who have been made parties to the bill, justifies us in further assuming that some of the defendants are now in the actual possession of their several holdings, and are claiming the same advf'rsely to the appellant, and disputing the validity of her alleged title. Under other circumstances, for example, if the bill fairly showed that the tract sought to be partitioned was country property or wild land, we might hold, even in the absence of any allegation as to possession, that enough facts are alleged to enable the complainant, 8Jt common law, to maintain an action for partition, upon the theory that a legal title to land carries with it a constructive possession; but as the case stands, on the averments of the present complaint, no presumption can be indulged in that the property is vacant and unoccupied. On the contrary, we cannot shut our eyes to the fact that the present proceeding is evidently a declaration in ejectment stalking in the guise of a bill fm.· partition. The allegations of the complaint must be construed most strongly against the pleader, and whatever doubts are raised by the bill as to the appellant being seised and possessed of the property must be resolved against her. Acting in accordance with these views, we must hold that the bill shows, by the most persuasive inference, that the appellant has been disseised, and that the property in controversy is occupied in separate tracts by the numerous defendants named in the bill, who are now holding the same adversely to the complainant. The question then arises, which we stated at the outset, whether the United States circuit court for the district of Kansas had any jurisdiction to enter a decree of partition which was prayed for in the bill. It is not denied, as we understand,-and the authorities to this effect are numerous and uniform,-that at common law a bill for partition would only lie in favor of one who had the seisin, and immediate right of entry. At common law, if a party entitled to bring a suit for partition became disseised, he could not maintain the action until he had established his right of possession by an action in ejectment, or other equivalent proceeding at law. In other words, a suit in partition could not be maintained on a mere right of possession, if the property was in fact held adversely, and it was not recognized as a proper action by which to recover the possession of real property where the plaintiff had been disseised. These principles are fundamental. Co. Litt. 167a; 16 Vin. Abr. 225; Adams v. Iron Co., 24 Conn. 230; Clapp v. Bromagham, 9 Cow. 530, 560, 561; Lambevt v. Blumenthal, 26 Mo. 471; Burhans v. Burhans, 2 Barb. Ch. 398, 408 ; Shaw v. Gregoire, 41 Mo. 407; 1 Washb. Real Prop. p. 715. It is claimed, however, by the appellant,-and this is the point on which the question of equitable jurisdiction finally turns,-that under the practice which prevails in Kansas a bill for partition may be maintained by a tenant in common, though he is
60. Hence. a billfpr"paxtition may be of Kansas. entertainedcby:the federal;: circuit court .for tl1e the.1irst proposition, touching the practice which:rDowpreyaUs inKanaas. In an early;ca$e deeided in that state.r(Squines Y. Clark, l1riKan. 84), Mr. JlllJtice Brewer, then a the supreme C6urt of Kansas, intim3iteda doubt whether a tenant;in,conunonj who·b.ad been disseised, could maintain a suit forpri,titm untUhe haa established his right of possession by a suitatilaw.:'He attention to a .fact, which is still note1WQJ.!'thy, that the sta.tutes of Kan.$as do not undertake to determineror, to· define the· cir:eumstances ·.l1nder which· a suit for par, titionmaybe Unlike the laws of many other statesj the smtutes,bf:g:ansas simply oogulate the mode of' procedure in suits for partition.",It· mAy be conceded, however, that since the decision in Squire!!Jl1:J iClark,. ;supra, ,the' practice has become eliltablished, appal'entlywith<l'1lt .debate or controversy, of entertaining suits for partition .at. the, instance ola .suitor .who has been. disseised. Scantlin v. Alli$Ou,82 . Kan. 376, 4: Pac. 618; :O,ttv,; Sprague, 27 Kan. 620. It by nO.meails follows, however, practice of that nature prevails in the: state courtsi,that a bill for partition can also be entertainedby coul'tssittingin that state, when it appears that theJCOmplainant 'hal!l been disseised,'and that his right of possession is disputed, and, that the property sought to be partitioned is actually .occnpied by an adverse claimant. The federal courts cannot proRet'lyentertain ,a bill in chancery to partition lands unless a state of facts exis't&'Which would warrant such an action according' to· the., general ,rules of equit;,r jurisprudence and practice. In the courts of the United States a bill for partition certainly cannot be used as a mere sublltitutefOran action in ejec,tment, or inoorchangeablywith a suitat law of that nature, to establish a plaintiff's tigl;lt;of. possession. A. practice of that kind, if tolerated, would: be in clear violation of section 723, Rev. St. U. S., which provides in equity.shaU not be sustained in either of the courts of, theiUnitedStateswhere a. ,plain, adequate and complete l'emedY!Day, be had, at· law." Hipp v. Babin, 19 How. 271, 277. Moreoverrif b,suitor was allowed to 1ile a bill for partition to establish' his title and right of possession after a disseisin, the adverse claimant and occupant would, in effect, be deprived of his right to atrial by ijury,on a strictly legal:issue, contrary to the seventh amendment. ,of the constitution of the United States, as was pointed out by Mr. Justice Field>in Whitehead v. Shattuck, 138 U. So 146, 151, 11 Sup. Ct. 276. Tllis question has been. frequently discussed, and, so ,as we are aware, it has always been held that, where a billshoWll ,on its face that t)le purpose of the plaintiff is to recover the poslile.!lsioD: of real property thatis occupied ,by an adverse claimant, tbebUlmust bedismissed,unlessit is further shown by the coxnplaiJllttl;1at the aid of a court of equity is necessary to remove obstaclesavhichstand in the way ()f a successful resort to an action of ejeetment,:,Ol' unless it appears that the plaintiff's title has been establi,sbeda,t law, and that equitable aid is necessary to prevent a put and JUUI!.been disseised. by· Jds
SANDERS V. DEVEREUX.
315
multiplicity of ,suits, ,Of; that equitable aid isiiecessary for some' other good and sufficient reason stated in the bill. In the case of U. S. v. Wilson, 118 U. 13.86, 6 Sup. Ot. 991, the government, having a title to certain lands acquired under the internal revenue laws, filed a complaint against certain persons, who were in possession' of the premises,to remove a cloud upon its title, consisting of an alleged fraudulent deed. It was held by the court (citing numerous cases in support of the proposition) that as, under the averments of the bill, the United States had a legal title, wbich was paramount to the alleged fraudulent deed, and as the defendants were in possession, the case was Mtone of' equitable cognizltnce, and that the bill should have been dismissed on tbat ground. In Whitehead v. Shattuck, supra, it was held that a person out of possession, but claiming to have the legal title to certain lands, could not maintain in the federal courts a bill to quiet title, against defendants who were in possession, although a statute of the state permitted an equitable proceeding to be brought in the state courts to establish the title and to recover the possession. The court said, in substance, that a statute of a state could not be allowed to override the federal statute, heretofore quoted, which declares that the courts of the United States shall ,not assume equitable jurisdiction where there is a plain, adequate, and complete remedy at law. And, in an opinion recently delivered by this court, Judge Caldwellremarked, in a case where for special reasons, disclosed by the opinion, the equitable jurisdiction was upheld, that, "if the defendant was in possession of the property, the plaintiff had an adequate remedy at law, and could not resort to equity, although the state statute conferred equitable jurisdiction on the state courts in such a case." Bigelow v. Chatterton, 10 U. S. App.267, 280,2 O. O. A. 402, 404, 51 Fed. 614. It is hardly necessary to pursue the subject at any greater length. The cases of Holland v. Ohallen, 110 U. S. 15, 3 Sup. Ct.495, and Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ot. 213, on which much reliance seems to be placed, as explained and perhaps qualified in the later case of Whitehead v. Shattuck, supra, contain nothing in opposition to the foregoing views. In the first of these cases, which was a proceeding in equity authorized by a statute of Nebraska to quiet title, both. the complainant and the defendant were out of possession, the premises in dispute being wild and unoccupied land. Vide 110 U. S. 21, 3 Sup. Ot. 495. An action in ejectment, under such oircumstances, would not lie; and it was held that as there was no adequate remedy at law a federal court sitting in Nebraska might lawfully enforce the provisions of the state statute. The second case above referred to enunciates the same doctrine,-that, where equitable rights have simply been enlarged by a state statute, they may be enforced by the federal courts, substantially as directed, if the common law affords no adequate means by which to redress the wrong which the statute was intended to remedy. It follows from what has been said that this court is of the opinion that the bill in the present instance did not state a case within the equitable jurisdiction of the circuit court, and that it was properly dismissed
316
FEDERAL' REPORTER,
vol: 60.
for tha1idreason. We observe, 'however,that'the decree dismissing theblll is ,'generaI, and does not yreserve to the appellant her right to sue at lawjif she so elects. ,The case is therefore remanded to the cireuitcourt with directions to add to the existing decree a clause that the dismissal ordered is without prejudice to the complainant's, :right to sue at law; and, as thus modified, the decree below is aftirmed, ,at the cost. of the appellant. ' , /' .
of Appeals, Eighth
.
Oll'eutt. -. r
February 12, '1894.)
No. 293. L
A of COJ;ldelllnatlon o,f land rendered by a court, haVing jurisdietion, o,,!er'the parties and power to condemn land in proper cases is not subject to COllilteral'attack on thE! ground that it was' rendered in favor;'Qf who had not the legal",capacity to condemn land, since that ,t:s to be determined by theqourt rendering the judgment. on the 'grotiria that the dMendarit has acquired title by, condemnation , proceedings; rand to quiet the defeIi.dant's title, that such title constitutes a plll'feot to the action at law, since! the remedy at law is not as ;ef\lcient in sucpsuit. WAIVER. '
AT!'I'..,cx-EMINEN'1' DOMAIN-JURISDIOTION.
2. lNJU;NC'j:'J;ON.,.,.DlI/,ENSES-REMEDY AT LAW. " , It is to a suit brought to enjoin an action of ejectment
8.
The 'remedy at
to aninjnnction suit, thatthe plaintiff has an adequate too late when raised for the first time on appeal.
'
. ,',
:Appeal fr()JI1 the Circuli Court of the United States for the West' ern District of Arkansali'l., Suit for injunction brought by the St. Louis & San Francisco RailwayOpmPflDyagainst MaryA. Foltz) and revived, after her death, her husband.,alldJoseph R. Foltz, Genevieve FraQces A. Foltz, James A.Foltz, and Jacob K. Foltz, hel' children. obtaine.d a decree. Defendants appeal. This 1s au! appeal from a decree enjoining the appellant, Mary A. Foltz, who is a mamoo.woman. 'trom pr06ecuting an action of ejectment agaiilst the St. Louls & San Francisco Railway Company, the appellee, to recover possession of certain lands in Ft. Smith, Ark., occupied by it for railroad purp06es. The above-named appellant, Mary A, Foltz, died during the pendency of theappea.l in this court. and by consent an order was entered in this court reviving. the cause. as to her heirs at law, in the name of the above Section 11, art. 12, of tbe constitution of Arkansas, declares that no foi'eign corporation shall have power to condemn or appropriate private property. Section 5530 of Mansfield's Digest of the Laws of Arlulnsas provides that a foreign railroad corporation may, under certain circumstances, purchase or lease, the property and franchise of any railroad company under the laws of that state. and that such lease or purchase "shall carry with it the right of eminent domain, held and acquired by said companY·at the time of such lease or sale." The appellee is a corof Arkansas, but,{n 1882, in accordance with the poration foreign to prOVisions of section 5530, supra, ,it had purchased all the property and franchises of a railroad corporation organized under the laws of Arkansas, including its right of eminent' domain. In May, 1883, the appellee presented its petition to the circuit court of Sebastian county, Ark., for the condemnation of the lands in question, after having served due notice of Its intended