No. 25 | U.S. Circuit Court for the District of Washington | Dec 7, 1892
Lead Opinion
Tho original bill in this case was filed August 9, 1890. After hearing the arguments of counsel thereon, a demurrer to said original bill was by the court sustained. 46 Fed. Rep. 704. .By leave of court an amended bill was subsequently filed, and a demurrer to the same was argued and overruled. The defendants have answered, and exceptions to their answers have been submitted to the court, and overruled. The ease was at issue on the 2d day of July, 1892-, on which day a general replication was filed. More than three months thereafter, to wit, October 6, 3892, the complainants filed a motion to dismiss without prejudice on payment of the costs, without assigning a reason for dismissing. Ho evidence has been taken, and no application has been made to the court to enlarge the time for taking evidence. The defendants oppose the motion on the ground that the plaintiffs’ claim affects the title to Denny & Hoyt's addition to the city of Beattie, (the premises in which the plaintiffs claim to have an interest,) and prevents the sale of lots therein, and that any disposition of tho case which will leave the controversy open to future litigation will be a serious injury to them, and. to every owner of property in said addition.
By the court’s decisions of the questions which, have been argued, and decretal orders, tho claims and rights of the parties have been adjudicated. The defendants have been put to expense in making their defenses, and, in my opinion, they are now entitled to secure by a final decree the fruits of the litigation. The motion to dismiss without prejudice I regard as a request to the court for its consent to the use of judicial process for the mere purpose of harassing and oppressing tiie defendants. To grant the motion, the court will have to make a record which will be equivalent to a public announcement that the plaintiffs have leave to renew in this court the attack upon the title to the premises, and a warning to every person who buys or improves a lot in said addition that the expense of defending against such attack may be forced upon Mm or her whenever the plaintiffs shall be so minded.
The authorities cited do not sustain the solicitor for plaintiffs in maintaining that in equity a plaintiff may dismiss without prejudice, and without consent of tho defendant, at any stage of the case, upon payment of costs. In section 291 of Foster’s Federal Practice the learned author says:
“After appearance, and before a decree or decretal order, a plaintiff can usually obtain a dismissal upon payment of the costs of such of tho defendants as have appeared, but not if they, or any of them, would be injured thereby. * * After a decree or decretal order, however, the plaintiff may not discontinue without the consent of all parties who have acquired rights by the decree.”
The same rule is given in 1 Daniell, Ch. Pr. (5th Ed.) 793, which is another of the authorities cited by plaintiffs’ solicitor; and the same chapter, on page 790, contains the very explicit statement that-—
*172 “Where, however, there has been any proceeding in the cause which has given the defendant a right against the plaintiff, the plaintiff cannot dismiss his bill as of course. Thus, where a general demurrer had been overruled on argument, Lord' Cottonham was of opinion that the plaintiff could not dismiss his hill as of course, the defendant having a right to appeal against the order overruling the demurrer, which right he ought not to be deprived of on ex parte application.”
House v. Mullen, 22 Wall. 42" court="SCOTUS" date_filed="1875-04-18" href="https://app.midpage.ai/document/house-v-mullen-89050?utm_source=webapp" opinion_id="89050">22 Wall. 42, is not in point, but tbe case of Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U.S. 702" court="SCOTUS" date_filed="1884-01-07" href="https://app.midpage.ai/document/chicago--alton-railroad-v-union-rolling-mill-co-90982?utm_source=webapp" opinion_id="90982">109 U. S. 702, 3 Sup. Ct. Rep. 594, is analogous. Tbe decision of tbe supreme court in that case is based upon tbe rules of chancery practice given in tbe chapter of Daniell’s Chancery Practice above referred to, and other authorities in harmony therewith. After quoting from several, including tbe decision in Watt v. Crawford, 11 Paige, 472, and referring to a number of other authorities, Mir. Justice Woods, in tbe opinion of tbe court, says:
“The authorities cited sustain the refusal of the circuit court to allow Dumont to dismiss his bill. * * * After all these proceedings, and when the controversy between the parties was practically ended by the interlocutory decree of the court, the motion to dismiss his original hill was made by Dumont, the complainant therein. The rolling mill company insisted that if the original hill, carrying with it the cross bill, were dismissed, its claim would be barred by the statute of limitations. It would be hard to conceive of a clearer case for the application of the rules laid down by the authorities wo have eited. If the court, under these circumstances, had allowed the original bill to be dismissed without the consent of the rolling mill company, it would have.inflicted a palpable wrong on that company, and trifled with the administration of justice.”
Tbe remarks quoted are applicable to tbis case. Although, no cross bill has been filed, tbe case is not so materially different on that account as to require tbe application of a different legal principle. Tbe filing of a cross bill would not ipso facto deprive the court of discretionary power to dismiss without prejudice. Ho evidence has been taken, but tbe evidence is shut out by tbe rules, and tbe controversy between tbe parties has been practically ended by the interlocutory decrees upon tbe demurrers and exceptions to the answers. It is my opinion that tbe defendants are now entitled to have tbe cause set down for bearing upon tbe bill and answer, unless tbe court shall for good cause grant an application to enlarge tbe time for talcing evidence according to tbe rules. Host. Fed. Pr„ § 292. Motion denied.
Rehearing
On Behearmg.
(April 3, 1893.)
By leave of court tbe plaintiffs have renewed their motion to dismiss tbis suit without prejudice, and, in support of their new motion, affidavits and copies of certain records have been filed, whereby they attempt to show that in tbe year 1868 tbe probate court of King county, in which tbe land in controversy is situated, appointed an administrator of tbe estate of William A. Strickler, the original claimant of tbe land under tbe Oregon donation law, and that said probate court, and its successor, tbe superior court of Bong county, have ever since retained jurisdiction of said estate. Tbe record of
The argument is that, by the proceedings of the probate court referred to, the land was placed in custodio legis, so that this court is deprived of jurisdiction of a suit In personam to determine between the parties the validity of their respective claims thereto; and that, even if the court is not absolutely without jurisdiction, the suit must nevertheless fall of its object, for the reason that, under the peculiar laws of this state, as declared by its supreme court, until the administration of the estates of said William A. and Mary Striekler shall have been completed, and the property distributed to their heirs, the land is liable to be sold by order of the probate court to pay the expenses of administration, and therefore no title or right to litigate concerning the same has passed to the heirs. In other words, the court cannot try the title to said property in this suit, or render a decree which will close the controversy, because the complainants are not the proper parties to sue, no legal title having become vested in them.
The laws of the state, even if as represented, cannot operate to abridge the jurisdiction of this court. By virtue of its powers as a court of chancery, it has, concurrently with the courts of the state, jurisdiction over the estates of deceased persons, when the requisite citizenship and other conditions exist. Ball v. Tompkins, 41 Fed. Rep. 486. As remarked by Judge Severens in the case just, cited:
“In the exercise of this, as well as of other, branches of its authority, this court cannot invade the possession of tlm subject-matter of controversy already taken by the state court having- concurrent authority, and in the exercise thereof; for the rule is hero, as elsewhere, that the court which first acquires possession o£ the subject will retain, it, and the power to dispose of it by its own adjudication.”
The present case, however, does not require this court, in adjudicating between the parties, to disturb any substantive thing or right which another court has by its process drawn into its dominion. As the courts of the state have not acquired exclusive jurisdiction by having taken actual possession of the land in controversy, there is nothing to prevent the complainants from obtaining in this suit directly all the relief ultimately obtainable through the agency of the state courts in any style of proceeding, if it shall transpire that they are entitled to any relief.
Another question to be considered is, did William A. Strickler acquire an inheritable estate in this land, or die seised thereof? The patent is evidence that the United States did not convey the title to Mm, but did convey it to other persons, viz. his heirs. In the opinion upon the demurrer to the first bill of complaint filed in the case (46 Fed. Rep. 704) I stated that “presumably only the heirs of Strickler living at the date of the patent were entitled to share as beneficiaries by that grant, and they would take by purchase, as grantees of the government, and not by inheritance, as the heirs of Strickler.” In their amended bill the complainants
According to the practice of the land department, if Strickler had during his lifetime fully perfected his right to the land, the patent would have named him as the grantee; and although not issued until after his death, by virtue of the act of congress of May 20, 1836, entitled “An act to give effect to patents for public lands issued in the names of deceased persons,” (5 St. p. 31, Rev. St. § 2448,) the title to the land would have inured to, and become vested in, the persons entitled to the land according to the provisions of the donation law. Davenport v. Lamb, 13 Wall. 418" court="SCOTUS" date_filed="1872-04-15" href="https://app.midpage.ai/document/davenport-v-lamb-88478?utm_source=webapp" opinion_id="88478">13 Wall. 418. It is fair to presume from the fact that the patent is not issued in the name
“We liave not overlooked the fact that by the territorial enactments of. Oregon a settlor’s claim might descend to his lieirs as real estate, and that his possessory rights might be disposed of by will; but all these enactments are in conflict with the act of congress, and therefore inoperative. The heirs of the settler took only such title as congress gave them. The territorial government could not add to or take from that grant.”
In Love v. Love the facts were that the land in dispute was taken as a donation claim by a married couple in 1852. They resided upon and cultivated the same for over four years. Before making final proof, the husband died intestate, leaving two children. The widow made the required proofs, and thereupon a patent was issued. By this the widow took one half the land in
The decision in McKay v. Freeman, so far as it touched the question under consideration, appears to have been based upon a statute of Oregon giving a legislative construction of the donation law similar to section 551 of the Code of Washington Territory. For reasons already given, I regard the Oregon statute and the decision based upon it equally unsound.
In Blakesly v. Caywood the court held that an heir of an alien settler who had lived upon the land in dispute, and cultivated it for the prescribed period, and had declared his intention to become naturalized, had a right to the land superior to that of an adverse claimant who had obtained a patent. The facts of the case, as recited in the opinion, show that it is not in point, for it was not necessary to the decision to hold that the heir took by inheritance. The decision can be upheld on the ground that the heir was fully entitled to the land in her own right, as a donee of the government.
The opinion of Judge Deady in the case of Cutting v. Cutting, 6 Fed. Rep. 259, comes nearer to the point under discussion. In that case Gutting had done everything required by the terms of the donation law to perfect his right, including the making of final-proof, but had not paid the land-office fee for issuing a patent certificate. After his death his administrator paid the fee, and thereupon the patent was issued to the widow for a designated half, and to the heirs at law of said Gutting for the other half of the land. Upon said facts Judge Deady held that the interest of Gutting “in his donation, whatever it was, terminated with Ms life, and that the laud was not thereafter liable for Ms debts, or subject to sale by his administrator, but thereupon became and was the absolute property of Ms wife and children, as the direct donees and grantees of the United States. In other words, they took by purchase, and not descent.”
The reported decision of the supreme court of’tills state in the case of Roeder v. Foute, 31 P. 432" court="Wash." date_filed="1892-10-29" href="https://app.midpage.ai/document/roeder-v-fouts-4728491?utm_source=webapp" opinion_id="4728491">31 Pac. Rep. 432, has a syllabus indicating that the court upheld a sale of part of a donation claim by an administrator of the deceased settler. But the facts recited in the opinion are different. In the opinion (hero is an argument which in some respects favors the contention of counsel for the complainants in this case, the most of- which is a quotation from the opinion of Chief Justice Greene in the case of Brazee v. Schofield, 2 Wash. T. 209;
“It is undoubtedly true that the donation act requires for the completion of a settler’s right to a patent not only that he should reside upon the land and cultivate it for four years, hut that he should notify the surveyor general of the precise land he claims. The object of the law was to give title to the party who had resided upon and cultivated the land, and who was therefore in equity and justice better entitled to the property than others who had neither resided upon nor cultivated it. But it was also of importance to tho government to know the precise extent and location of the land thus resided upon and cultivated. It was necessary to enable the government to ascertain what-lands were free from claims of settlers, and subject to salo or other disposition.” .
The reasons given in this extract for holding the requirement as to notice to be imperative apply with equal force to the provision requiring final proof. Notice of a claim cannot be of greater importance than definite information of the ripening of a mere inchoate right into a perfect and vested right.
I find nothing in Hall v. Russell to give colorable support to the argument of complainants’ counsel except a quaere in the syllabus, suggested by the following passage in the opinion:
“Whether the fee passed out of the United States before the claim was ‘proved up’ it is not necessary now to consider. For the purposes of the present suit it is enough to show that the occupant got no title himself, beyond a mere right of possession, until he had completed his four years of continued residence and cultivation.”
I think that an answer to this quaere, in harmony with all the decisions of the national courts, is found in the general principle that title does not pass from the United States by a conditional grant of public land so long as the patent is withheld, and any act required of the grantee as a condition of the grant remains uncompleted. Railroad Co. v. McShane, 22 Wall. 444; Shepley v. Cowan, 91 U.S. 330" court="SCOTUS" date_filed="1876-02-28" href="https://app.midpage.ai/document/shepley-v-cowan-89182?utm_source=webapp" opinion_id="89182">91 U. S. 330; Colorado Co. v. Commissioners, 95 U. S. 265.
In Wilcox v. Jackson, 13 Pet. 498" court="SCOTUS" date_filed="1839-03-18" href="https://app.midpage.ai/document/wilcox-v-jackson-86113?utm_source=webapp" opinion_id="86113">13 Pet. 498, the supreme court stated the rule even broader than I have stated it. In the opinion of the court by Mr. Justice Barbour it is said “that, with the exception of a few cases, nothing but a patent passes a perfect and consummate title. One class of cases to be excepted is where an act of congress grants land, as is sometimes done, in words of present grant. * * * The general rule is what we have stated, and it applies -as well to pre-emptions as to other purchases of public lands.”
The donation law prescribes the conditions under which, after the death of the settler, his rights descend to his heirs, so that they become entitled to take as grantees in his place. Section 8 of the original act provides that, in case of a settler’s death before expiration of four years’ continued possession, his heirs may become so entitled, upon proof of compliance with the conditions of the act by the settler up to the time of his death; and the first section of the amenda
3 Pac. Rep. 265.