264 F. 492 | 8th Cir. | 1920
This is the third appearance of this case in this court. The first appeal is reported in 175 Fed. 702, 99 C. C. A. 278, under the title of Broatch v. Boysen et al., and the second under the same title in 236 Fed. 516, 149 C. C. A. 568.
The original action originated in equity by a bill filed by William J. Broatch, Harry F. Clarke, Robert C. Wertz, Thomas Coughlan, Charles J. Woodburst, John T. Clarke, and Mary F. House, executrix and sole heir under the last will and testament of Jacob F. House, deceased, et al. against Asmus Boysen et al., in the District Court of the United States for the District of Wyoming, to establish a trust in 680 acres of land in the state of Wyoming, which it was claimed was held in trust by one Asmus Boysen for the benefit of 16 shares or interests held by 12 known and 4 undisclosed principals. During the pendency of the suit, Boysen organized a company and transferred the land to Asmus Boysen Mining Company, a corporation. The United States District Court held that there was no trust established, and dismissed tlie bill for want of equity, but, on appeal, this court (175 Fed. 702, 99 C. C. A. 278) held that Boysen held the land as trustee for the complainants, but that, as the Asmus Boysen Mining Company had spent considerable money in prospecting on the land, it ought to be
It was represented to this court on the second appeal that the Asmus Boysen Mining Company had divested itself of the title to 88 acres of the land, and as to that contention this court said:
“Complaint is made that the decree on the accounting requires each of the appellants to make the payment required of him within 60 days after the entry of the decree, and that it provides that in case any of them fails to do so the suit shall be dismissed as to him, because the title to 88 acres of the patented land is no longer in the Boysen Mining Company, and it cannot convey one-sixteenth interest therein to any of the appellants. But the decree requires the Boysen Mining Company to convey one-sixteenth interest of the patented land to each of the appellants upon his making the payment required of him. That conveytifice is conditioned on the payment required, and in the nature of the case the payment is conditioned upon the conveyance, and ample power is vested in the court below to prevent injustice under this decree. If the mining company has not now the title and power necessary to convey one-sixteenth interest in the entire patented tract, it may yet acquire that title and power before any of the appellants is ready to pay the amount required of him, and the mining company may make the conveyance. If it cannot and does not do so, the court below has ample jurisdiction and power, and may then exercise it by supplemental decree, or by modification of the decree for the accounting, so as to require the mining company to convey the one-sixteenth interest as far as it can do so, and to make compensation for its failure to convey one-sixteenth interest in the entire tract as is often provided in cases of specific performance of contracts. Fry on Specific Performance of Contracts (3d Ed.) §§ 1222, 1223, 1224; Pom-eroy on Contracts (2d Ed.) § 438.”
On remand, the District Court on June 4, 1918, made an order requiring the complainants within 10 days to pay into court the respective amounts found due to the Asmus Boysen Mining Company and. that, in the event same was not complied with, tire action be dismissed. On that day, and prior to the entry of the said order, there was presented to the said United States District Court, by the appellant, John T. Clarke, individually and in his own right and as the equitable owner of certain rights of the complainants William J. Broatch and Robert C. Wertz, and as the assignee of the interests of the complainants C. J. Woodhurst and Mary F. House, a verified supplemental bill, wherein are set forth the various transfers and assignments made to said Clarke of the respective interests of the other parties, and it was further alleged that the said Asmus Boysen Mining Company, which was decreed to make the conveyance of the land in question here to each of the said parties, had during the pendency of the litigation divested itself of same and sold to the Big Horn Power Company (one of the appellees herein) 88 acres of said land; that the land so conveyed was practically the only thing of value in the whole tract; that the said Big Horn Power Company and its grantees are in possession of same and claim title to it adversely to the said John T. Clarke and the other persons to whom this court has decreed the title; that by reason thereof a tender of money into court would be unavailing. The parties so claiming adversely were all made parties defendant to the supplemental bill. The District Court granted leave to file said supplemental bill.
On that day, and prior to the entry of the order of dismissal, the appellant, John T. Clarke, in behalf of himself and as assignee of the interests of Mary F. House and others, asked leave to file a second supplemental bill, setting up as counterclaim damages for withholding the property, and seeking thereby to reduce the amount found due to said Asmus Boysen Mining Company, but the court refused leave to file the same.
The appellant, John T. Clarke, as assignee of Woodhurst and Wertz, paid into court one-half of the amount the decree ordered as against Wertz, and the full amount decreed to be paid by Woodhurst for the interest of the latter, and prayed the court to retain the money in the registry of the court until the matters set forth in the first supplemental bill are adjudicated. This the District Court declined to do, and against the protest of the said Clarke directed said money to be paid over to the attorney for said Asmus Boysen Mining Company.
The appeal is from four orders of the court which are claimed to be erroneous. They are: The orders of June 4, 1918, requiring the money to be paid into court; the decree of June 18, 1918, dismissing the action as to John T. Clarke and Robert C. Wertz; the order of June 18, 1918, directing the clerk to pay out to John W. Racey, attorney for the Asmus Boysen Mining Company, the money deposited in court; and the. order of June 18, 1918, denying leave to file the second supplemental petition.
Appellant contends that the order requiring payment into court was error, because the mining company did not tender to appellant or info court any deed to the property, and had rendered itself unable to do so by conveying theretofore to others practically all of the valuable part of the land; that a master’s deed could not give appellant any actual practical benefit, but only the basis upon rvhich to bring further law suits against such purchasers or their grantees. To this appellees oppose the suggestion that, as all such conveyances were made pendente lite, they were made subject to the result in this suit, and that such purchasers or grantees were as much bound by the decrees entered herein as though they had been parties, and that, as the master’s deed would convey full legal title, the payment into court was a proper requirement under the mandate of this court on the last previous appeal. 236 Fed. 520, 149 C. C. A. 568.
The decree is affirmed, in so far as the order denying leave to file the second supplemental petition, and as to the dismissal of the complaint and the orders to pay into court, and to pay the amount so deposited in court to the attorney of the Asmus Boyseii Mining Company, it is reversed and remanded, with directions to reinstate the complaint ; to ascertain what, if any, portion of the land decreed to appellant or his assignors cannot be conveyed by said company free of litigation as to such title and possession, and the value thereof; to then strike a balance between such value and the amounts decreed to be paid in by appellant and his assignors under the accounting; if such balance bé against appellees, then a decree therefor, and also for deeds for such lands as may be conveyed free of such litigation by the Asmus Boysen Mining Company or, if necessary, by a master; if such balance should favor appellees, a decree that upon payment of such balance by appellant within 60 days, accompanied by sufficient proof of the assignments claimed by appellant, deeds as above. The costs of this appeal to be assessed against the appellees.