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85 FEDERAL REPORTER.
is· intended to preserve the sanctity of written contracts would be. eluded without difficulty, and practically abrogated. Let a, decree be drawn dismissing the bill of complaint, with costs.
i:
SAYERS et al. v. BURKHARDT et al. Court of Appeals, Fourth Circuit. No. 222. February 1, 1898.)
1.
EQ,UITY JURISDICTION CLOUD: lI'ROM TrrT.E.
BETTING ASIDE FRAUDULENT DECREE -
REMOVING
Where the purpose ofa bill is to set aside as fraudulent judicial proceedings, to declare deeds made in pursuance thereof null and void, and to free complain. ants' labds from the lien of certain taxes, and of the claim of forfeiture declareU 'In such· proceedings, it is not necessary to allege that.complalnants In possession of the lands at the ti1lle of instituting the suit, to give a court of equity jurisdiction.
2. ENTRY OR LANDS FOR TAXA'l'ION - FORFEITUItE OF LANDS BOLD FOIt TAXES.
Where lands have been purchased by the state at tax sale, they cannot be forfeIted for nonentry on the land books for taxation, under the statute of West Virginia, which provides that lands so sold shall not there,after be entered f(>l' taxl1-tion unless redeemed. ,
A suit to set aside a because of conspiracy and fraud in procuring it need not be brought in the court which rendered the decree, but may be Instituted in any court having jurisdiction :of the subject-matter; and the parties. 4. BUIT TO SE'l' ASIDE JUDICIAL SALE-LANDS FoRFEITED-LACHES. Oomplalnants' lands were sold as forfeited for nonentry for taxation in October,l885, and bilI.to set aside the proceedings as fraudulent was filed in Decernbel,", 1889. They .had never abandoned their claim to the land, but continued to assert it. It was not shown that defendants had taken possession of, or exerCised acts of ownership over, any part of the land. Held., that there :was no. laches.
8.
SUIT;T08ET ASIDE DECREE OBTAINED :BY. FRAUD-JUItJSDTCTION.
the Circuit Court of the United States for the District 1Virginia. T. W. Chapman and Okey Johnson, for appellants. P. W.,Strother and Malcolm Johnson, for appellees. Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge. of GOFF, Circuit Judge. This is an appeal from a decree rendered on the 1st of September, 1896, by the circuit court of the United States for,tbe district of West 1Virginia, by which it was held that the complainants below had title to the 17,850 acres of land mentioned in their bill; that the proceedings referred to therein, instituted court of McDowell courity, W. 1Va., by the defendant H. C. Auvil, as commissioner of school lands for that county, against a tract Of 320,000 acres of land granted by the commonwealth of 1Virginia to"Robert by patent dated March 4, 1795 (and against Jthe lands or,the complainants), were null and void; and also that the deeds made nnder .certain decrees entered in said proceedings were clo11;dsnpon the title to complainants' land, which should b{' and Jremoved,because such conveyances were void and inop-
SAYl1;RS
BURKHARDT.
24.7
erative: Complalnarits'bill charges specifically that tneproceedings instituted by said school commissioner were fraudulently can· ceivedand' prosecuted,and its object was to declare them void because of such fraud, and thereby restore complainants to the enjoyment of their property, free from the embarrassment occasioned by the decrees and deeds alleged to be the result of said unlawful proceedings. The record is most voluminous, and' contains much that is foreign to the matters really presented by the pleadings, which has, we fear, tempted counsel to dIscuss many interesting propositions of law relating to land titles which are not essential to the disposition of this case. As we find the matter, the questions to be decided are few, and far from being intricate. The first question presented by the assignment of errors is as to the jurisdiction of the court. Appellants insist that the court as a court of equity, had no jurisdiction of this case, for the reason that it was not alleged in the bill that the complainants were in possession of the land referred to therein at the time of the institution of this suit, the appellants claiming that such allegation was necessary, as the object of the suit was to remove clouds from the title to said land, caused by the existence of the proceedings and deeds mentioned. In the first place, this is a misconception of the scope of complainants' bill, for its evident purpose was not only to remove said clouds from their title, but also to set aside as fraudulent eel" tain proceedings had in the circuit court of McDowell county, W. Va., to declare the deeds made, in pursuance thereof null and void, and to decree that complainants' iands should be held by them free from the lien of certain taxes and of the claim of forfeiture set up in said proceedings. It is alleged in the bill that George J. BurkhaNlt died seised and possessed of the land proceeded against, and that the complainants are his legal heirs. In suits of this character such allegations are sufficient to give a court of equity jurisdiction, for under such circumstances; where fraud is charged, or the cloud is caused by a tax deed, the remedy at law is not plain, adequate, and complete. This ground of equity jurisdiction and this rule of procedure is now so well established that it will not be questioned by this court, particularly concerning suits having reference to deeds made under the provisions of the West Virginia statutes referring to forfeited and delinquent lands in thllt state. Gage v. Kauf· man, 133 U. S. 471, 10 Sup. Ct. 406; Coal Co. v. Doran, 142 U. S. 417, 449, 12 Sup. Ct. 239; Rich v. Braxton, 158 U. So 375, 406, 15 Sup. Ct. 1006; Hardingv. Guice, 42 U. S. App. 411, 25 C. C. A. 352, and 80 Fed. 162; Christian v. Vance, 41 W. Va. 754, 24 S. E. 596. The next assignment of error relates to the finding of the court below that the complainants had title to the 17,850 acres claimed by them in their bill, appellants insisting this was error, for the rea· son that the record shows complainants' title to the same had been forfeited to the state of West Virginia for nonentry upon the land boohfor taxation for the years from 1877 to 1881, inclusive. But itisapparent from the record that the land could not have been forfeited for non entry for those years for the reason that the same was purchased by the state at a tax sale in the year 1877, and could not,
248
85
FEDERAL REPORTEj:t.
therefQre, have lawfully beell upon the land books for '!!laid years, as the statute relating to that subject requires that lands so sold shall not thereafter be entered for taxation unless redeemed. Under such circumstances the question was not one of forfeiture, but of redemption,. which the court below properly found in favor of complainants. Land .will not be declared forfeited for nonentry in cases where the statute law provided that it should be omitted from the land books. It also appears from the proceedings that the 17,850 acres claimed by complainants were originally part of the 320,000 acres patented. as before mentioned, to Robert Morris, and it is certainly clear that proceedings by the school commissioner against said larger tract for its sale as forfeited under the 'West Virginia statutes should not be permitted to affect the title to the smaller tract, particularly when ,the latter had been placed upon the tax books as a separate tract, and purchased by the state as delinquent. Oook v. Lasher, 42 U. S. App. 42,,;1.9 O. O. A. 654, and 73 Fed. 701. While we are clearly of the opinion that the proceedings in the circuit court of McDowell county concerning the land in controversy were not authorized by law, still the jurisdiction of the circuit court of the United States, for the district of West Virginia did not depend upon that fact alone. An independent suit, the object of which to seiaside a decree because of conspiracy and fraud resorted to and practiced in procuring the same, is not necessarily required to be brought ip the court where said decree was rendered, but may be in any court of competent jurisdiction. In this case the citizenship of the parties, the amount in controversy, and the real estate affected were such as to give the court below jurisdiction. In this connection it is also proper to remark that said proceedings in the circuit court of McDowell county were instituted prior to the passage of the West Virginia act of March 18, 1882, which provided for summoning persons having an interest in the land claimed to be forfeited. C()nsequentlY' such proceedings were administrative, and not judicial; the right of appeal did not exist in favor of any of the claimants of said land, and they are not barred because of said suit from asserting their title in any proper proceedings before a court of competent jurisdiction. McOlure v. Maitland, 24 W. Va. 561; Auvil v. Iaeger, Id. 583; McOlure v. Mauperture, 29 W. Va. 633, 2 S. E. 761; Ounningham v. Brown, 39 W. Va. 588, 20 S. E. 615; Cook v. Lasher, 19 O. C. A. 654,73 Fed. 701. The only remaining question to consider is that of laches. The land claimed by the complainants was sold as forfeited at the October term, 1885, of the circuit court of McDowell county, and the bill was filed in the court below in December, 1889. The claim is now made that the delay in instituting this suit constituted laches on the part of complainants. There is no regular rule by which this question can be determined, and each particular case must be decided on the facts found therein. In this ca,se there is no evidence that the complainants ever abandoned their claim to the land; on the contrary, they continued to assert it. Nor is it shown that the defendants ever took possession of the same, or of any part thereof, or that they ever exercised any acts of ownership concerning it. There has been,
HOLLY V. DOMESTIC & FOR;li:IGN MISSIONARY SOC.
249
therefore, no acquiescence on the part of the complainants in the assertion of rights adverse to them by the defendants, lUld we do not think that the delay has been such as to render stale, in a court of equity, their claim for relief from the cloud caused by fraudulent deeds. We find no error in the decree appealed from, and it is affirmed. HOLLY v. DOMEBTIC & FOREIGN MISSIONARY SOO. (Circuit Court, S. D. New York. L
March 1, 1898.)
TRUSTS-MoNEY WRONGFULLY PAID OUT-RECOVERY BY FREE OWNER.
Money intrusted to another, and by him wrongfully paid out, may be recovered by the true ow-ner,so long as it is traceable, if its possession, with liability of its recovery, has wrought no disadvantage to those to whom it has been paid. Plaintiff intrusted money to another, who deposited it in bank in his own name, with funds of his own, and afterwards paid a legacy to defendant by check on said bank, after the payment of which a considerable. balance still remained to his credit. Held that, in the absence of proof to the contrary, such balance would be treated as a part of plaintiff's money, and he could only recover the residue. An unsuccessful attempt to recover from the wrongdoer money paid out in breach of a trust is not such an election of remedies as will bar a recover)' against one to whom lthas been paid, in the absence of circumstances creating an estoppel.
2.
TIIACING MONEY IN HANDS OF INNOCENT HOLDER-BuRDEN OF PROOF.
ELEOTION OF REMEDIES-MONEY WRONGFULLY PAID OUT-ATTEMPT TO RECOVER FROM WRONGDOER.
Arthur M. Burton and Cephas Brainerd, for plaintiff. Julien T. Davies 'and Herbert Barry, for defendant. WHEELER, District Judge. Henry C. Thompson was a lawyer and real-estate agent in Philadelphia, and was an executor of the estate of James Saul, of Philadelphia, and had in his hands as such about $15,000, devised and decreed to the defendant, of New York. The plaintiff gave him a check for $12,000, and a receipt for $200 advanced, to pay for a house which the plaintiff had bargained for. He immediately deposited the check in another bank, where he had about $4,000 more, gave his check on that bank to the defendant for $15,577.54, and took a receipt as "from executors estate James Saul," for that amount, without further specification. When the plaintiff learned where his money had gone to, he demanded it of the defendant, and brought this suit to reach it. Principles adequate for the decision of this case are found, as understood, in Wilson v. Smith, 3 How. 763, and National Bank v. Insurance Co., 104 U. S. 54. In the former case the defendant had collected a draft belonging to the plaintiff, received from a person who had received it from the plaintiff, and credited the proceeds to the person from whom the defendant received it on an account before due, without any knowledge that it belonged to the plaintiff, or did not belong to him. The plaintiff there was held to be entitled to recover, at law, because the money belonged to him, and no new transaction had arisen between the defendant and the one from whom he received it