98 F. 647 | 5th Cir. | 1899
after slating the case as above, delivered the opinion of the court.
It is assigned as error that the United States circuit court had no jurisdiction of the case. The position taken by counsel is ¡hat the suit in which relief is granted is one by Achille Laurent, as the as signet; of Fulton, to enforce specifically the lease, and that the lease is within the prohibition of the statute providing that the circuit court shall not “have cognizance of any suit * ⅞ ⅞ to recover the contents of any promissory note or oilier chose in action in favor of any assignee, ⅞ ⅞ unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.” 24 Stat. 552, as corrected by 25 Slat. 434. Corbin v. Blackhawk Co., 105 U. S. 659, 26 L. Ed. 1136, is cited as sustaining this position, and it is there held that a suit to compel the specific performance of a contract, or to enforce its other stipulations, is a suit to recover the contents of a chose in action, and is not maintainable, under section 629 of the Revised Statutes of the United States, in the circuit court,- by an assignee, if it could not have been prosecuted there by the assignor had no assignment been made. Tins objection would at least require careful consideration, and would, perhaps, prevail if this were an original suit' brought by Achille Laurent, as the assignee of Fulton, against Brooks and his wife. In such case it may be conceded that the record, to show jurisdiction of the circuit court, would be required to show that Fulton, the assignor, could have maintained the suit in the circuit court. Whatever relief is sought by Achille Laurent ⅛ not, however, by an original bill, but bv a cross bill. The original bill is not filed by an assignee of a chose in action. Brooks and his wife, citizens of the state of Florida, filed the original bill in the slate court against Achille Laurent, Leon Laurent, and Paul Jumeau, who are citizens of the republic of France. The original bill and the petition for removal show these jurisdictional facts. The circuit court has jurisdiction of controversies between citizens of a state and citizens or subjects of a foreign slate. 25 Stat. 434. The original bill, therefore, when filed by Brooks and wife in the state court, could have
It is contended by the learned counsel for the appellee that there was a novation of the original contract of lease; that the lessee, Fulton, and the lessors agreed to substitute Achille Laurent for Fulton, and that the contract by which the substitution was made so changed the lease as to make a new contract between the lessors
It is claimed by the appellants that the lease was void, and that the court below erred in granting relief on the cross bill. The original bill was tiled jointly by William M. Brooks and his wife, Sue if. Brooks. One of its purposes was to obtain the cancellation of a lease. The validity of the lease was not denied in the bill. It was expressly alleged by the complainant Sue G-. Brooks that she, authorized and assented to the making of the lease by the complainant William M. Brooks. Conceding its validity, and proceeding upon that theory, she sought its cancellation on account of breadles of the lease by the lessee. She complained that the raining was not done in a workmanlike manner, that the lessee did not mine at least 7,000 tons of phosphate per annum, that the royalties wore not paid according to agreement, and that the lessee in fact was unable to perform his part of the contract. It is alleged that she became the owner of the land on February 14, 1895. There is no proof of this averment in the record, nor is there any denial of it. A married woman owning real property may sell, convey, or mortgage it as she might do if she were not married, provided her husband joined In the same. Rev. St. Fla. 1892, § 1956’. Such sale, conveyance, or mortgage must he acknowledged separately and apart from her husband, before some officer authorized to take such acknowledgment. Id. § 1958. The custody and management of the property remain with the husband. Id. § 2071. It is further enacted that a married woman shall have the right to bring suits or actions for or concerning her real property without joining her husband or next friend. Id. § 2074. These statutes are enacted in conformity to Const. Fla. art. 11. The defendant in the original bill, Achille Laurent, after having answered, filed a cross bill, in which he also proceeds upon the theory advanced by the complainants, that the lease was valid and binding upon the parties thereto. By the cross bill he seeks an accounting and other relief. Gn this accounting before the master it appeared that the complainants in the original bill were indebted to Achille Laurent on account of the lease. That indebtedness was finally ascertained to be $8,532.35. While the special master was executing the reference to ascertain the state of the account between the parties, the complainant Sue G. Brooks, by her attorney, for the first time raised the point that the lease was void because it was executed by the husband alone, that the property belonged to the wife, and that the assent of the wife had not been given in the mode provided for by the Florida statutes. No
"Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his attack upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.”
This case is cited approvingly bv the supreme court in Davis v. Wakelee, 156 U. S. 680, 691, 15 Sup. Ct. 555, 39 L. Ed. 578. In the latter case Davis had in a judicial proceeding asserted the validity of a certain judgment. The judgment was in fact void for want of jurisdiction. The court held that Davis nevertheless was estopped in equity from claiming that it was void. Sir. Justice Brown, delivering the opinion of the court, said that:
"Even if Davis had been mistaken as to his legal rights with respect to this judgment and its subsequent discharge, his assertion that it was still of record, and in full force, is none the less binding upon him in view of Wakelee’s acquiescence in the ruling of the court sustaining this contention.”
The learned justice added that:
“It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because Ms interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position taken by him.”
This case, in principle, seems directly in point here. Mrs. Brooks and her husband both assumed the position that this lease was a valid and binding contract, and filed a bill upon the theory that the lessee liad committed breaches of it. It is true that the bill sought the cancellation of the lease, hut that prayer was, in effect:, an admission of the lease as an existing contract. The bill also sought to collect moneys alleged to be due from the lessee on account of the lease. It
“The bill alleges that the deed was executed by the complainants. * * * It is not in issue in this case. It is somewhat anomalous that a party should come into a court of equity, and demand that his deed be set aside because of his own blunder, or his imperfect execution of the instrument.”
The question not being raised by the pleadings, the court declined to give any importance to the defect, and said that the matter was mentioned in the opinion only because it “was dwelt upon in the argument with some earnestness.”
Pomeroy says that the tendency of modern authority “is strongly towards the enforcement of the estoppel against married women as against persons sui generis, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or to maintain a defense.” Pom. Eq. Jur. 814. The courts that generally decline to apply estoppels to a married woman do not hesitate to apply the doctrine to her “where she is attempting affirmatively to enforce a right inconsistent with her previous conduct upon which the other party has reliéd.” Id., and authorities there cited. This doctrine is applied against the wife where the husband has acted for her as her agent (McCaa v. Woolf, 42 Ala. 389), and where she aets jointly with her husband (Wilder v. Wilder, 89 Ala. 414, 7 South. 767, 9 L. R. A. 97). The evolution of the law, as shown by constitutions, legislation, and judicial opinions and decisions, is constantly towards yielding to the wife dominion over her property, real and personal, and removing the disabilities of coverture. The statutes which emancipate and confer rights necessarily impose burdens. The statutes that permit her to sue and be sued as a feme sole when she appears in court as a party to a suit make her amenable to the well-settled rule denying to parties the right to take advantage of op-