176 F. 208 | 9th Cir. | 1910
This cause was heard and disposed of in the court below upon the pleadings of the parties, resulting in the sustaining of the complainant’s demurrer to the defendants’ cross-bill and the awarding to the complainant of the injunction sought by his bill.
The bill in the present suit alleges that on or about the 7th of November, 1908, the Great Palls National Bank caused a writ of execution to be issued upon the aforesaid judgment recovered by it in the state court, and delivered to the sheriff of Cascade county, directing him to levy upon and sell any property of the Diamond R Mining Company found in that county to satisfy its judgment, and that at the same time the American Engineering Works caused a similar execution to be issued upon its aforesaid judgment recovered in the state court, with like directions to the sheriff. The bill in the present suit then alleges:
“That said defendants American Engineering Works and Great Palls National Bank, conspiring together to harass your orator and to defraud and deprive him of his said property, and ignoring and disregarding the decrees and orders and process of this honorable court, and well knowing that said property was then and there and still is the property of your orator, directed and procured said sheriff to levy or make a pretended levy upon and sell certain of said mining property described in said Exhibit A, and so belonging to your orator, including said ore bins, tramway, blacksmith shop, and portion of said power house described in said Exhibit A, and certain other of the fixtures and appurtenances of said mining property so transferred to and owned by your orator as hereinbefore fully set forth; that on the 20th day of November, 1908, said sheriff made a pretended sale of said property under said writs of execution to one R. S. Ford, for and on behalf of said Great Falls National'Bank; that said defendant Ed Hogan, as such sheriff as aforesaid, has given notice, by posting and by publication, that he will sell the Equator quartz lode mining claim at public auction on the 4th day of December, 1908, at the city of Great Falls, Mont., under and by virtue of said writ of execution aforesaid; that said defendants will, unless restrained by your honors, sell said Equator quartz lode mining claim (said mining claim being a part of the real property described in Exhibit A hereto attached), and will seize and remove said fixtures and appurtenances so pretended to be sold on November 20, 1908, as aforesaid, thereby greatly injuring the said property of your orator and casting a cloud upon the title of your orator to said mining property, all to the great and irreparable loss and injury of your orator.”
The contention on the part of the appellants is that the Equator quartz lode mining claim, which they admit was owned by the Diamond R Mining Company, was not levied upon under the writ of attachment issued in the suit of McClure against the mining company, and was never sold by the marshal under the execution issued in that action, and was never conveyed by his deed to McClure. The marshal’s certificate of sale expressly states that it was so sold, and his deed to McClure, made in pursuance of the certificate and sale, purports to convey among other properties sold, the Equator quartz lode mining claim. This is not questioned by the amended answer or the cross-bill. It is true that in those pleadings it is alleged that the sheriff’s certificate of sale and deed are void as to the Equator claim for the reason that it was not covered by the writ of attachment issued in the action of McClure
Those allegations, being at the time verified and remaining unexplained, preclude the bank from now relying upon contrary allegations. “Any confession or admission made in pleading in a court of record, whether it be express, or implied from pleading over without a traverse, will forever preclude the party from afterwards contesting the same fact in any subsequent suit with his adversary.” Bouvier, Raw Dictionary (11th Ed.) “Estoppel by Matter of Record.”
Section (>807 of the Revised Codes of Montana, in force at the times here in question, provides that judgments of the district court of the state become a lien upon all of the ceal property of the judgment debt- or within the county from the date of its docketing, and that such lien continues for six years. Whatever lieu the Great Ealls National Bank may have acquired on the Equator quartz lode mining claim by virtue of the writ of attachment issued in its action against the Diamond R Mining Company became merged in its judgment entered February 12, 1902, and, by virtue of the Montana statute cited, expired February 12, 1908. Regardless of any attachment lien in McClure’s favor, his judgment became a lien on all of the real property of the mining company by virtue of the United States statute (Act Aug. 1, 1888, c. 729, § 1, 25 Stat. 357, 4 Fed. St. Ann. 5 [U. S. Comp. St. 1901, p. 701]), and the sale under that judgment passed the title of the judgment debtor to the purchaser.
The judgment is affirmed.