Childs v. Missouri, K. & T. Ry. Co., 221 F. 219

Childs v. Missouri, K. & T. Ry. Co.

221 F. 219 | 8th Cir. | 1915

TRIEBER, District Judge

(after stating the facts as above). In view of the conclusions reached, it is unnecessary to determine the validity of the leases upon which plaintiff relies, and therefore the question whether tlie.court could consider them on demurrer to the bill, when they were not made a part of the bill nor filed as exhibits thereto, which has been very fully argued by counsel, is immaterial.

11 j 1. It appears from the face of the bill that plaintiff is not in possession of the premises, and that the defendant is. In such a case a bill in equity to remove a cloud on the title to property does not lie in a national court, even if under the laws of the state where the lands are situated such an action may be maintained. Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873.

(2] 2. The bill shows on its face that the plaintiff has been guilty of laches. Although, as alleged in his complaint, his right of possession accrued on July 13, 1892, and the defendant has been in adverse possession continuously since January 1, 1899, this action was not instituted until December, 1909, nearly 11 years after the wrongful entry by the defendant which set the statute of limitations in motion, and no explanation to excuse this delay is set out in the bill. This is fatal. Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. Ed. 214. In Wil*222son v. Plutus Mining Co., 174 Fed. 317, 320, 98 C. C. A. 189, Judge Sanborn, speaking for this court, declared the well-established rule governing courts of equity in the matter of laches to be:

“Under ordinary circumstances a suit in equity will not be stayed before, and will be stayed after, the time fixed by tbe analogous limitation at law; but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from, the face of the bill or by his answer, that extraordinary circumstances exist which require the application of. the doctrine of laches, and, when such a suit is brought after the statutory time has elapsed, the burden is on the complainant to show, by suitable averments in his bill, that it would be inequitable to apply it to his case.”

And when the property involved is of a speculative nature, such as mining property usually is, a court of equity will refuse to grant relief even when the suit is instituted before the bar of the statute of limitation had attached. Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Johnston v. Mining Co., 148 U. S. 370, 13 Sup. Ct. 585, 37 L. Ed. 480; Curtis v. Lakin, 94 Fed. 251, 36 C. C. A. 222.

[3] The statute of limitation in force in the Indian Territory at the time the unlawful entry is alleged to have been made by the defendant was seven years. Mansfield’s Digest, § 4471. That the defendant was a foreign corporation in the Indian Territory did not change the rule, in the absence of any showing that it could not have been served with process within the jurisdiction of the court. The law in force at that time (Mansfield’s Digest, § 4982) provided for service on foreign corporations in the territory. There are no allegations in the complaint as to why the bar of the statute should not apply, and, as stated in Wilson v. Plutus Mining Co., supra:

“When such suit is brought after the statutory time has- elapsed, the burden is on the complainant to show by suitable averments in his bill that it would be inequitable to apply it to his case.”

[4] 3. It is also claimed that, even if the action to remove a cloud on the title cannot be maintained, the bill should be treated as one for discovery. But there are many reasons why this would not aid plaintiff in any wise:

(a) Laches is as good a defense to1 a bill of discovery and for an accounting as to any other proceeding in equity.

[5] (b) If-this were merely a bill for an accounting, the court would have been without jurisdiction, unless waived by the defendant, for neither of the parties were citizens of the state of Oklahoma. The jurisdiction of the court below was invoked wholly upon the ground that the primary object was to quiet plaintiff’s title, a cause of action which may be brought in the district in which the property lies, regardless of the fact that neither of the parties is a citizen of that state. Section 8 of the act of March 3, 1875 (18 Stat. 472 [Comp. Stat. of 1913, § 1039]). A simple action for an accounting would not lie in a district in which neither the plaintiff nor defendant resides nor is a citizen of.

*223[B] (c) When the ground upon which the jurisdiction of a court of equity is invoked fails, a court of equity cannot retain it for the purpose of granting relief for which there is a complete and adequate relief at law. Lewis Publishing Co. v. Wyman, 182 Fed. 13, 104 C. C. A. 453 (affirmed in 228 U. S. 610, 33 Sup. Ct. 599, 57 L. Ed. 989)._ If plaintiff is entitled to a discovery and accounting, he could obtain it at law under the provisions of section 724, R. S. (Comp. St. 1913, § 1469). United States v. Bitter Root Co., 200 U. S. 451, 475, 26 Sup. Ct. 318, 50 L. Ed. 550; Curriden v. Middleton, 232 U. S. 633, 34 Sup. Ct. 458, 58 L. Ed. 765.

[7] To entitle a party out of possession to recover for a trespass, he must first establish the fact that he is the owner of, or lawfully entitled to the possession of, the premises.

| 8] (d) To recover for a trespass the defendant is, under the provisions of the seventh amendment to the Constitution, entitled to a trial by jury, which he cannot obtain in a court of equity. Even if the equity court should submit the issues of fact to a jury, the verdict is merely advisory, and not within the meaning of the seventh amendment. Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150.

[9] (e) The allegations in the bill requiring an accounting are wholly insufficient to justify the interposition of a court of equity. They are not specific, and that part of the bill may properly be called a “fishing bill,” which cannot be maintained. Huntington v. Saunders, 120 U. S. 78, 7 Sup. Ct. 356, 30 L. Ed. 580; Carpenter v. Winn, 221 U. S. 533, 540, 31 Sup. Ct. 683, 55 L. Ed. 842.

[10] 4. Appellant complains because he was not given an opportunity to amend his complaint, as the court, when it sustained the demurrer, immediately rendered a final decree dismissing the bill. Whether this was error it is unnecessary to determine In this case, as the plaintiff did not complain of it in the court below by motion for leave to amend or to set aside the decree, although the term at which it was entered did not lapse for some time, and long after plaintiff had knowledge of the rendition of the decree. Nor is it assigned as error in the assignment of errors. It was raised for the first time in this court. It was then too late.

The decree of the court below is right, and is affirmed.