James A. Bowdoin v. Buford Malone, Jr., and United States of America
287 F.2d 282
5th Cir.
1961
Check Treatment

*2 RIVES, Before CAMERON and Judges. BROWN, Circuit PER CURIAM.

Appellee Malone, Jr., Buford as Forest Agricul- Officer, Department Service ture, filed, attorneys has Department of of the United Justice together States, petition rehearing, sup- supрort with a plement thereof and a brief brief, together mo- to that with supplement. The tion for leave to filethe granted, supplemental motion and the brief has been considered the Court.1 reject We withоut discussion point supplement appel raised in the to brings lee’s brief. It to our attention correspondence certain between the at torneys parties. for the corre This spondence was not before lower court and is not contained the record of this largely appeal. It deals facts which appellee Malone claims demonstrate that present action is barred limita tions. Thе action decided was upon com court below the face of the by appellants plaint filed motion along by appellee below, dismiss filed to with ‍​‌‌​‌​‌‌‌‌​​‌​​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​​​​‌​‌​‌​‍the United States.2 That was before the court which below appeal' involved in which was 2. The court States, below dealt with certain ad- had entered its The United pretrial joined which had been missions made appearance in Malone’s motion question hеarings. joined No was raised as to dismiss, has to rehearing. these were before the entered dismiss, opinion motion court on the so that pursuant heretofore ren question, approved we raise no but havе considered case in this dered admissions as included in the written ac being prop- below as the United States insofar tion erly the Court the motion concerned. dismiss. Malone, facts, dis- matters we to consider the undеr admitted decline ap- supplemental éntitled brief cussed in the have the action pellee Malone, ground him possible solely defense as such a dismissed on the part protected by not before thаt he the asserted *3 sovereign immunity us. and is not before of the States?” pass as We over without discussion That is an accurate statement of what having sufficiently our been in dealt with was tried below, before the court what opinion petition points three made in the was by decided court, that and what rehearing,3 opin- and we confine this argued original before us in pres- the argument response pre- ion to a to the entation of this case. No contention petition sented in re- Point IY of the was made that ejectment the action of hearing in which it is claimed that here involved differed from the action majority opinion er- bаsed an is ejectment of dealt with in United States Georgia premise roneous We as to law.” Lee, 1882, v. 196, 240, 106 U.S. 1 S.Ct. part do this in because of statement the 171, 27 L.Ed. and we made no effort to opinion: in our the “It is manifest analyze the statutes and of decisions Georgia quoted statutes and referred Georgia to demonstrate that the action to, cited, that the as as the well decisions ejectment of before the lower and in common law action of before us was identical in and character Georgia alone, possession that involves scope with the action involved in Lee. only process victor the issuable to thе The fact Ejectment, is that together possession, as is a writ of with dealt with in Title 33 of damages, the posses- Code of and that ‘the writ of Georgia Annotated, comprehensive is a against persons sion shall issue third аnd remedy. flexible Assuming that, un not known in the suit on writ which such ’* Georgia der the upon by decisions founded, relied ”. possession of is appellee petition in its rehearing4, [284 F.2d 98.] remedy the by ejectment has been ex meant, oрinion statement the That in panded permit so as to try suits to of of ejectment that the law action common land, there nothing is any in decision sought Georgia, in- in be we remedy have found which limits the by applied aрpellants in and the voked to such Many a class provi of actions. case, possession this quoted alone. involves reject thought sions of the statute the by statement was followed our ejectment, the сommon law action that opinion: statement in the law, has an action at been converted into- question presented, “The sole exclusively equitable quiet an action to therefore, is one law: is lаnd, or try title to even to title.5 opinion “regresses 3. That our I to the Co., Sweat v. Atlantic Coast Line R. 5 discredited view that a 492, suit Cir., 1936, 81 F.2d against the United States is determined chapter E.G., § 103 of the vests the by presence its a formal right singlе to maintain the action in a fendant;” opinion and that our II joint person claiming tenant or other conflict with the decisions of the Su- only part interest the lands involved preme Court, and III of this circuit and joining pеrson other other circuits. him, proviso judgment with the that ‍​‌‌​‌​‌‌‌‌​​‌​​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​​​​‌​‌​‌​‍Cannon, 1957, 339, Vinson v. 213 Ga. “not affect shall those in- 341, 109; 108, 99 S.E.2d or terested such lands tenements who- Lopez Downing, 1872, 120; parties gives 46 Ga. are not to the suit.” § Wooldridge, 1897, right Brewster v. plaintiff 100 Ga. mаke the true 305, 308-311, 306, 44-45; 43, 28 S.E. and claimant defendant to bind him Bright City Washington, 1957, judgment. right confers the § Ga.App. 86, 84, previous plaintiff 97 S.E.2d cer- to make war- denied; tiorari the land a rantor title to codefendant. Ramey 1904, O’Byrne, 516, gives right plaintiff 121 Ga. to- 597; аgainst possession S.E. a writ of the de- have be- “It well settled under the deci- rendered sions now this low, appearing record Court that no decree can shows be F.Supp. entered the title to ported in 186 property cancelling any action or cloud its ap- parties thereon predicated upon the unless was pellee stating: “Plaintiff alone, interested in title or in the Malone particular maintain frankly cannot he cloud who di- concedesthat will be rectly it- affected action self;” rendered decision rendered are solely on the basis Court.” of Malone favor acting as land, possessing he was in agеnt In Hudson v. Newell we reversed the *4 States, had of the United action of the lower the sued. While not consented be to quiet to generally suit to certain rehearing filed and the briefs petition for lands, provided by Mississippi stat- con- support somewhat are thereof utes, using language: presented is fused, real the contention they “If prove can the land and oil indispen- anwas that the United States are why they theirs we see nо reason ought to action that the sable and should not have for them have been dismissed against sued; possible those claim- ground suit could that the on ants not in court would not of course bringing proceed the Unitеd without be bound the result. such If in. States claimants’ title is shown as a defense chiefly upon to their relied One of the cases interests can saved be from the * * * position our recent deci- decree. sustain that is Cir., Stаtes, 5 sion Stewart “We therefore hold that while the 1957, not think that 242 F.2d do 49. We full prayed given relief cannot be appellee’s position sound. Stewart only parties before the seeking quiet title to an action invоlved court a be, limited relief can and against generally held the world.6 We all the suits should be retained to en- States, action, the United in such an quire into it.”8 claiming were whom others In Mackintosh, supra, we cited Hudson bаsing title, party, indispensable was an authority and held: holding largely prior our cases our Cir., 1949, “Plaintiffs Newell, are entitled F.2d 5 172 Hudson v. lief which cited, justify the facts and Mackintosh v. even and cases though that Estate, relief has not Cir., 225 F.2d 211. been Marks’ 5 asked concerning theory and general that has rule not been ad- We stated the * * * 7 pleadings. vanced in indispensable parties to be: page money judgment 242 fendant, including See F.2d at 50: for amend- cоmplaint prayed profits. ed that title to denies the de- mesne And pos- quieted plaintiff scribed right mineral interests a writ to obtain plaintiffs, persons that and known clouds encum- third “not session cancelled, Implicit branсes be that the whole condemna- suit.” proceedings [by chapter tion which the and the decisions under it is the acquired passed plaintiff the title which choose whom it rule on, as far as the minerals and his will be were con- shall sue he cerned, person Company only upon persons binding to Placid or Oil oth- brought ers] corrected, be reviewed and the court. gas upon by oil and leases be relied cancelled and of ‍​‌‌​‌​‌‌‌‌​​‌​​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​​​​‌​‌​‌​‍the cases In one void, parties O’Byrne, Ramey clared appellee, and that Ga. be en- joined Supreme performing them.” Court of 49 S.E. Georgia as a refers mixed F.2d 51. partly partly tort, and trial action pages Nottingham at 8. 172 F.2d And also see title. Elliott, 1953, S.E.2d 93. 209 Ga. passing is that taken as “The first reason true in the mo- royalty owners tion to dismiss. irrespective continue to exist The rehearing present suit. outcome of Denied. deraign royalty their who owners pro- appellants are title from the RIVES, Judge. Circuit title, warranty of tected under their I dissent. * implied. express both “ * * * power of a court do equity toas so mold its decree parties complete justice between the adversely those exceedingly broad before the * * * and elastic. “ * * * retain the court should jurisdiction relief limit given granted can be such as *5 par- prejudice the absеnt UNITED STATES of Ray America ex rel. pages mond HACKLER, Everett 214-215. ties.” 225 F.2d at Plaintiff- Appellant, decisions, Certainly, under these indispensa an SAIN, G. Frank County, Sheriff of Cook

ble here. It had been eliminated Illinois, Defendant-Appellee. by dis in effect It is difficult to consent. No. 13119. sought against cern what relief was United States Appeals Court of by law com United States common Seventh Circuit. plaint pro Doe in the John Feb. ceeding. ‍​‌‌​‌​‌‌‌‌​​‌​​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​​​​‌​‌​‌​‍Taking averments of cоmplaint, supplemented by the state Rehearing April 7, Denied plaintiffs ment the court below (appellants) conceded that the suit States could not be true, maintained as we think it is clear Lee, a under by can be en grant tered appellants will adversely

some relief without the interests the United fact, In was in States. effect con original by appellee ceded

brief.9

Several times rehearing, claims that title put ‍​‌‌​‌​‌‌‌‌​​‌​​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌​​​​​‌​‌​‌​‍аppel denial of issue by appellees. Of

lants’ there responsive all, pleading

nowas at and the complaint

averments of the must be appears page appel- In which this statement the United States with the upon impact “While United States would an 10: lants.” Such incidental against Malone, bound the interests of the United States would managing property indispensable party, its interests not make it an directly rejected be affected and doubt would be the same contention was litigated directly cast its title until in Lee.