104 F. 5 | 5th Cir. | 1900
(after stating the facts as above). The questions submitted for our determination arise upon the ruling of the circuit court in sustaining the demurrers interposed by the ap-pellees to the original and amended bills of complaint. The fourth cause of demurrer assigned by the appellees claims that the sale made under the decree of the United States circuit court for the Western district of Tennessee was void because the court was without jurisdiction to order the sale of lands situated within the state of Mississippi. The appellant, as a subsequent purchaser of the lands, relies upon the deed which was executed pursuant to the Tennessee decree as an indispensable link in its chain of title. It is obvious, therefore, that if that deed did not pass the legal title, the appellant is without standing in court; for although, under the laws of Mississippi (Code 1892, § 500), a bill may be maintained in the circuit court of the United States by a person not in possession against another who is also out of possession, as is the case here, “still this does not make the complainant’s rights any the less dependent upon title in him, nor does it put him in a position to have a cloud removed from a title which has no existence.” Dick v. Foraker, 155 U. S. 415, 15 Sup. Ct. 124, 39 L. Ed. 201. In Holland v. Challen, 110 U. S. 25, 3 Sup. Ct. 501, 28 L. Ed. 56, it was said: “Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises;” and in Frost v. Spitley, 121 U. S. 557, 7 Sup. Ct. 1132, 30 L. Ed. 1012: “The necessary conclusion is that Spitley, not having the legal title of the lots in question, cannot maintain his bill for the purpose of removing a cloud on the title.”
It is shown by the bill that the proceeding in the United States circuit court for the Western district of Tennessee was instituted by Luke P. Blackburn against the Selma, Marion & Memphis Railroad Company. That company had issued interest-bearing bonds amounting to |4,400,000 for the purpose of constructing, equipping, and putting in operation its line of railway contemplated to extend into the states of Tennessee, Alabama,'and Mississippi; and, to secure the payment of the bonds, it duly executed, on the 18th day of March, 1871, a mortgage, conveying to trustees “all its rights and franchises, together with all property and real estate, its depots, warehouses, roadbeds, and all and every description of property, real and personal, which it then owned, or might thereafter acquire, either by donation, subscription, or purchase.” The lands in controversy,
It will thus be observed that the decree in Blackburn v. Railroad Co. (C. C.) 3 Fed. 689, did not operate directly upon the trustees or the railroad company, by requiring conveyances to be made by them, but, partaking of the nature of a proceeding in rem, it acted immediately upon the property, and was to be executed through the instrumentality of independent officers appointed by the court. A writ of assistance, issued by the court in Tennessee to put the purchaser at the sale made by the master in possession of the properly, would be wholly inoperative, because such process could have no extraterritorial effect. Toland v. Sprague, 12 Pet. 300, 9 L. Ed. 1093; Picquet v. Swan, 5 Mason, 40, Fed. Cas. No. 11,134; Ex parte Graham, 3 Wash. C. C. 456, Fed. Cas. No. 5,657; Chittenden v. Darden, 2 Woods, 437, Fed. Cas. No. 2,688; Walker v. Lea (C. C.) 47 Fed. 645. See, also, Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.
In Watts v. Waddle, 6 Pet. 389, 8 L. Ed. 437, the facts, briefly stated, were as follows: Watts, in order to obtain the legal title to a tract of land claimed by Robert Powell’s heirs, instituted a suit in chancery in the United States circuit court for Kentucky against the heirs, and. obtained a decree for the land. In pursuance of the decree, a commissioner appointed by the court executed to Watts a conveyance. The question, among others, arose whether the decree vested in Watts the legal title. At pages 400, 401, 6 Pet., and page 442, 8 L. Ed., the court said:
. “But, the most decisive objection to the decree against Powell’s heirs is, it is .contended, that it does not vest the legal title in Watts. A decree cannot opérate, beyond the state in which the jurisdiction is exercised. It is not in the'power of one state to prescribe the mode by which real property shall be cohveyed in another. This principle is tooelear to admit of doubt; but it is insisted' that the decree executed by the commissioner under the decree, by virtue of a statute of Kentucky, was a legal conveyance in that state, and as such, by a statutory provision, is good in Ohio. The words of the statute referred, ‡0 are ‘that all deeds, mortgages, and other instruments of writing for the conveyance of lands, tenements and hereditaments, situate, lying and being within this state, which, hereafter may be made and executed, and aeknowl-*11 edged or approved in any oilier slate, territory or country, agreeably to the laws of such state, territory or country, or agreeably to the laws of this state, such deed, mortgage, or other instrument of writing shall be valid in law.’ The deed executed by the commissioner in this case must be considered as forming a part of the proceedings in the court of chancery, and no greater effect can be given to it than if the decree itself, by statute, was made to operate as a conveyance in Kentucky, as It does in Ohio. The question then arises whether, by a fair construction of the above provision, it is in the power of a court of equity, sitting in Kentucky, by force of its decree, to transfer real estate in Ohio. Can this effect be given to such decree by this statute? It is believed that no state in the Union has subjected the real property of its citizens to the exercise of such a power. Neither sound policy nor comemence can sustain ihis construction, and, unless the language of the statute be imperative, no court can sanction it. The legislature of Ohio could never have Intended, by this provision, to place the real property of the citizens of that state at the disposition of a foreign court. The language used in the act does not require such a construction. It refers to deeds executed by individuals in any other state, and not to conveyances made by the decree of a court of chancery. This is the true import of the section, and if does not appear that the courts of Ohio have given it a different construction. Thus construed, it promotes the convenience of nonresidents who own lands in Ohio, and may desire to convey them, and in no point of view can it operate injuriously to the interests of citizens of the state. In this view, It appears that Watts did not acquire the legal title from Powell’s heirs, under the deed of the commissioner, and consequently lie was unable to convey the legal title to Waddle.”
In Watkins v. Holman, 16 Pet. 23, 10 L. Ed. 873, an admkiisrratrix, having duly taken out letters of administration in Massachusetts, was licensed and empowered by the Massachusetts court to make a deed to lands situated in Alabama. Discussing the validity of this deed, Mr. Justice McLean, speaking for the court (at page 57, 16 Pet., and page 886, 10 L. Ed.), said:
“That this deed is inoperative is clear. It was executed by the adminis-tratrix under a decree or order of the supreme court in Massachusetts and by virtue of a statute of that state. The proceeding it is not pretended was authorized by any law of Alabama. And no principle is belter established than that the disposition of real estate, whether by deed, descent, or by any other mode, must be governed by the law of the slate where the land is situated. A court of chancery, acting in personam”, may well decree the conveyance of land in any other state, and may enforce their decree by process against the defendant. But neither the decree itself, nor any conveyance under it. except by the person in whom the title is vested, can operate beyoud the jurisdiction of the court.”
The principle is clearly stated by the court, through Mr. Justice Field, in Corbett v. Nutt, 10 Wall., at page 475, and 19 L. Ed., at page 979:
“In this case it appears to be conceded that the supreme court of the Dis-irict of Columbia exceeded its authority in appointing McPherson trustee in place of Nutt of the land in Virginia. Thai court could not, by the mere force of its decree, transfer the title to land lying without its jurisdiction from the party in whom it was vested by the will of Mrs. Hunter. A court of equity, acting upon the person of a defendant, may control the disposition of real property belonging to him situated in another jurisdiction, and even in a foreign country. It may decree a conveyance, and enforce its execution by process against the defendant; but neither its decree, nor any conveyance under it, except by the party in whom the title is vested, is of any ellicacy beyond the jurisdiction of the court. This is familiar law, and was declared by this court in Watkins v. Holman, the court observing- that ‘no principle was better established than that the disposition of real estate, whether by deed,*12 descent, or by any other mode, must be governed by the law of the state where the land is situated.’ ”
Boyce v. Grundy, 9 Pet. 275, 9 L. Ed. 127, was a ease where the United States circuit court for the district of West Tennessee had rendered a decree which created a lien upon land in Mississippi, and ordered a sale of the land to he made in Mississippi in discharge of the lien. In holding the decree erroneous, the court, among other things, said:
“Another objection is, to that part of the decree which creates a lien upon the land in controversy lying in another state, and decrees a sale for a discharge of the lien. We are of opinion that the decree is erroneous in this respect. In the first place, the court had no jurisdiction to- decree a sale to be made of land lying in another state by a master acting under it» own authority.” Story, Confl. Laws, § 543.
The principle thus declared has been adhered to and emphasized by the state courts in the following cases: Poindexter v. Burwell, 82 Va. 507; Wimer v. Wimer, Id. 890, 5 S. E. 536; Farmers’ Loan & Trust Co. v. Postal Tel. Co., 55 Conn. 334, 11 Atl. 184; Robinson v. Johnson (Tenn. Ch.) 52 S. W. 704; Burnley v. Stevenson, 24 Ohio St. 474; Page v. McKee, 3 Bush, 135.
We quote from but one of the cases last cited. In 55 Conn., at page 335, and 11 Atl., at page 185, the supreme court of errors of Connecticut made the following statement of the principle:
“The courts of our state will not recognize the right of courts in other states to affect directly the title to real estate in the former. The most that can be done is to allow foreign courts having jurisdiction of the parties to compel conveyances by the owner, and recognize as valid titles so acquired. We are aware of no case that has gone so far as to recognize the validity of a deed given by a referee or other officer of court by authority of law in another jurisdiction. The rule seems to be that the courts of each state have exclusive jurisdiction to settle the title to lands within its own limits.”
But it is claimed by counsel for the appellant that Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207, has overruled or modified the earlier cases decided by the supreme court. In this view we are unable to concur. The suit in that case was brought by the trustees named in the mortgage. The Chicago & Southwestern Railway Company was one of the defendants. A part of its railway was in Missouri, and the mortgage which the bill sought to have foreclosed covered that part, as well as the part in the state of Iowa. The court decreed a sale of the entire property covered by the mortgage, and directed the master, who was ordered to make the sale, to execute a deed to the purchaser. The mortgagor was also directed to make a conveyance to the purchaser in further assurance. Upon appeal the decree was affirmed. It will be observed that the railway, extending into two states, was sold in its entirety; that the trustees were complainants in the suit seeking a sale of the property; and that the mortgagor was required also to execute a deed to the purchaser. The court seemed to lay stress upon the fact that • the sale was made at the instance of the trustees, who, notwithstanding the appeal, could also be directed by the trial court to join in a conveyance. In discussing, the question the court (at page 450, 94 U. S., and page 209, 24 L. Ed.) observed:
*13 “The mortgagors here were within the jurisdiction o£ the court. So were the trustees of the mongage. It was at the instance of the latter the master was ordered to make the sale. The court might have ordered the trustees to make it. The mortgagors who were foreclosed were enjoined against claiming property after the master’s sale, and directed to make a deed to the purchaser in further assurance, and the court can direct the trustees to make a deed to the purchaser in confirmation of the sale. We cannot, therefore, declare void the decree which was made.”
The case of McElrath v. Railroad Co., 55 Pa. St. 189, cited with approval in Muller v. Dows, supra, and relied upon by the appellant, is in harmony with the views which we have expressed. There the trustee in the mortgage, who had brought the suit, was authorized to sell a railroad which was partly in West Virginia and partly in Pennsylvania. And in making the order the court used this language:
“Without deciding what estate would pass by the trustee’s sale under the mortgage, we are of opinion that we can by our decree, operating upon the trustee himself, authorize and compel him to sell and convey whatever interest of the railroad company will pass under the terms of the mortgage.”
In the present case the validity of the sale of the Selma, Marion & Memphis Railroad is not in question. That road, with all its rights, franchises, roadbeds, depots, and equipments, was sold on June 1, 1880, more than three years prior to the sale of the lands in controversy, and with its sale we have no concern. It was under the decree of July 24, 1883, that the lands were sold, all being wild and uncultivated, and all situate in the state of Mississippi. Thus Muller v. Dows is clearly distinguishable from this case. Not only soj in Blackburn v. Railroad Co. a bondholder brought the suit, and the trustees in the mortgage were made defendants. Neither the trustees nor the mortgagor were required to execute conveyances to the purchaser, and the sale rests alone for its validity upon the deed of an officer of the court, presumably a master, executed pursuant to the court’s decree.
Our conclusion is that the deed of the master did not pass the legal title of the Selma, Marion & Memphis Railroad Company to the lands so attempted to be conveyed.
We might well rest our decision upon the question above discussed. But there is another objection, apparent upon the face of the original and amended bills of complaint, which is fatal to the appellant’s right of recovery in this proceeding. The lands in controversy were conveyed by the state of Mississippi to Jacob Thompson and associates between the years 1854 and 1860, and by the latter transferred to the Selma, Marion & Memphis Railroad Company in 1871. Before, however. the execution of the deed by Thompson and associates, the lands had been sold for the nonpayment of taxes, and bought in by the state in the years 1860, 1801, 1862, 1864, 1866, and 1868. By an act of the legislature of Mississippi passed on March 16, 1872, the auditor of the state was authorized, upon certain prescribed considerations, to convey to the railroad company the lands which had been previously transferred to it by the Thompson deed. Pursuant to this legislative enactment, the auditor, on March 18, 1873, conveyed to the railroad company such title as the state possessed. It was by virtue of the
"Without, therefore, deciding whether the present suit is barred by the statutes of limitation of Mississippi, we are clearly of opinion, in view of the facts of this case, that a court of equity should not grant relief to the appellant at this late day. The delay has been too prolonged to invoke the aid of the chancellor, since “nothing can. call forth this court in activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing.” Sullivan v. Railroad Co., 94 U. S. 806, 24 L. Ed. 324; Brown v. Buena Vista Co., 95 U. S. 157, 24 L. Ed. 422; Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. 873, 36 L. Ed. 738; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718; Badger v. Badger, 2 Wall. 87, 17 L. Ed. 836; Pennsylvania Mut. Life Ins. Co. v. City of Austin, 168 U. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626, citing numerous authorities. In Badger v. Badger, 2 Wall. at pages 94, 95, and 17 L. Ed., at page 838, the rule is stated by Mr, Justice Crier, speaking for the court, in the following language:
“Courts of equity, in eases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this rather in obedience to the statutes than by analogy. In many other cases they act upon the analogy of the like limitation at law. But there is a defense peculiar to courts of equiiy founded on lapse of time and the staieness of the claim, where no statute of limitation governs the case. In such cases, courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, and refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. Bong acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance or impediment, caused by the fraud or concealment of the parties in possession, which will appeal to the conscience of the chancellor. The party who makes such appeal should set forth in his bill specifically wliat were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise, the chancellor may jusily refuse to eonsidei Ms Case, on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitation contained in the answer,”
