41 F. 486 | U.S. Circuit Court for the District of Western Michigan | 1890
The facts material to the purposes of the present motion are substantially as follows: On the 4th day of February, 1876, Byron D. Ball, of Grand Rapids, died testate. He left a widow, Martha M., — one of the defendants, — and four children, of whom the complainant is one, and three of the defendants are others. The property left by him consisted principally of real estate known as the “ Ball Block,”
The receiver has acted and collected all the rents to January 1st, and a motion is now made to discharge him. The gound of the motion is that the probate court is the proper tribunal for the trial and determination of such matters; that the time has now elapsed during which the executors were to act as trustees in taking the rents and profits; that they now have the right to possession as the officers of the probate court; and that the latter court has possession of the subject-matter of the controversy by a jurisdiction already extended over it when the present suit was commenced. The complainant has submitted, and asked leave to file, a supplemental bill setting forth the original proceedings, the expiration of the trust to receive rents and profits as expressly created by the' terms of the will, and the arrival of the date when the right of the devisees to the possession accrued, and praying for further relief by partition, among other things. There can be no doubt that the probate courts of Michigan are clothed with authority, by the laws of the state, to hear and determine all questions arising in the ordinary course of administration and distribution of estates. It has obviously been the policy of the state to distribute the judicial power in such a way as to produce this result. But it is also clear that it was foreseen and expected that questions would arise which would require the exercise of the jurisdiction of a court having ampler powers for inquiry and redress than the probate court is invested with. The state court of chancery has concur
And this brings us to the pivotal question in the present inquiry: What is the nature and character of the possession of the state or federal court which excludes the exercise of authority over the subject or thing by the other? Prom the authorities on this subject, (which in the circuit courts are not altogether harmonious,) and from the reasons for the rule, I apprehend it to be, substantially, that the possession contemplated as sufficient to make it exclusive is that which the court by its process, or some equivalent mode, has, either for the direct purpose of the proceeding, or for some other purpose ancillary to the main object, drawn into its dominion and custody some thing. That thing may be corporeal or incorporeal, — a substance or a mere right. But a controversy, a question, an inquiry, is not such a thing. These may be the subject-matter of jurisdiction in a pending cause, which often proceeds, from the beginning to the judgment, without the court’s having taken actual dominion of anything. But there is no exclusive jurisdiction over such a matter. The result may be a judgment which will establish a right, but the court has not had any possession. The pendency of a controversy in a suit in a state or federal court is no bar to a suit in the other court involving the same controversy, (Stanton v. Embrey, Adm’r, 93 U. S. 548;). and each will proceed, in its own course, to a judgment establishing the right. The control which each court has over its own processes has always been found adequate to prevent mischief from diverse judgments in the several jurisdictions. But, in proceeding on its way, whenever either court finds that the other has already taken actual dominion over some objective thing related to the subject, it will let the thing alone, so long as that dominion, is retained, and proceed, if there be enough material besides to support the exercise of its jurisdiction, and the pursuit may reach fruit. If not, it will stop. There are many casés in the Supreme Court Reports where this subject has been discussed, and these principles applied. Some of them have been already cited; Others are: Heidritter v. Oil-Cloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135; Railroad Co. v. Vinet, 132 U. S. 478, 10 Sup. Ct. Rep. 155.
A supplemental bill has been tendered for filing, praying for partition,. or sale if that is necessary. This seems to be a proper practice in such circumstances. Story, Eq. Pl. §§ 328, 336. I think leave should be given to file it; and thereupon the question is whether this receivership should be continued, now that these parties are entitled to possession as tenants in common, and upon a bill for partition. The tenants in common disagree, and there is no prospect that they can act harmoniously in the management of the property. It is likely to be a wrangle, if attempted. The defendants, Mrs. Tompkins and her husband, assert her right to be let into the receipt and disposition of the rents as executrix, and, indeed, that is 'the avowed object of the present motion. That would exclude the complainant from his rights as effectually as he has hitherto — if the allegations of his bill be true — been excluded from all enjoyment of the estate. In these circumstances, it is the duty of the court to appoint a receiver. Duncan v. Campau, 15 Mich. 415; Pignolet v. Bushe, 28 How. Pr. 9; Sandford v. Ballard, 33 Beav. 401. Having already appointed a competent man for the purpose of collecting the rents, etc., to the beginning of 1890, his receivership may continue. An order may be entered granting leave to file the supplemental bill, continuing the receivership, and authorizing the receiver to collect the rents accruing since December last, and denying the motion to discharge.