119 F. 1006 | U.S. Circuit Court for the Southern District of Georgia | 1902
(orally). It has been announced during the argument that the court would take the case under advisement before pronouncing the decision. The hearing has contained so much of detail, and the arguments have been so fully made, that this is not now deemed necessary.
There are certain questions, -which have been argued in extenso, about which the court has no difficulty. One is the contention that there is no equity jurisdiction here, because there is a remedy at law. This is not true, in the opinion of the court. The proceeding is, as contended, in part for the recovery of a large number of lots of pine land. It is also true that the complainants rely upon their legal title, having its origin in a grant from the state, with sufficient convej^ances and clearly shown inheritable rights, vesting the title in them. It is not true, as contended, that they could have recovered on their title at law, because they would have been confronted with deeds made to the respondents by the agent or attorney in fact of Mrs. Caroline Kilgore, viz., one H. M. Hitt. This man was empowered by Mrs. Kilgore to recover these lands. He was also empowered to dispose of them for her benefit. Thus, upon the face of the papers, the respondents’ deeds would at common law afford a complete answer to the complainants’ claim of title. It is, however, true that the bill charges that the lands were conveyed in absolute disregard of the complainants’ rights, and as a result of a conspiracy between the respondents and this agent, Hitt. This conspiracy is set out in detail, and there is much proof to support the charges. If there was such a fraudulent conspiracy with the agent of complainants, if the respondents were co-conspirators, and if the deeds were made as the result of such conspiracy, it is obviously a case in which the complainants have a right to invoke the powers of a court of equity to avoid and cancel the deeds made in its execution. The complainants could not, in a court of law of the United States, set up such an equitable reply to the apparently legal, though fraudulent, title of the respondents, as would suffice to secure the com
Nor is the bill multifarious. This is a proceeding on the part of the heirs of a husband and wife to recover lands, the title to which was either in the husband or in the wife, or both. There is nothing multifarious in a title devolved through the law of inheritance, when the title is vested in one or the other or both of the parents of the person suing. It is said, however, that the bill is multifarious because the defendants have a multitude of titles from different sources. It, however, cannot, we think, be insisted, because an answer is multifarious, that the bill itself is obnoxious to that objection,—an objection always addressed to the discretion of the court.
It is, moreover, contended that the court has no jurisdiction because the proper diversity of citizenship is not shown. Evidence in the form of affidavits has been produced to show that two of the complainants were residents of this state, and, since they are necessary parties to the bill, it is contended that the relief sought must be denied for want of jurisdiction. Prima facie the court has jurisdiction, because the sworn averments of the bill set out the essential jurisdictional facts. There is evidence to support these averments. No plea of the jurisdiction was filed, and this defense is presented for the first time on this hearing. It seems, therefore, that the burden •of proof is on the defendants to show that the averments of diversity ■of citizenship by the complainants are not true. Does the evidence sustain that burden? I do not think so. It is presented in the form of affidavits, and, of these affidavits, it is uncontradicted that all but one was secured by one of the attorneys for the defendants, a Mr. Shipp, who, according to the undisputed testimony, resorted to questionable methods. Affidavits have been introduced to the effect that, although an attorney for the respondents, he went to one of the complainants, Mrs. Kilgore, gave a fictitious name, sought to win her confidence by stating that he came from the office of Hall & Wimberly, her attorneys, and endeavored to procure from her an affidavit to the effect that she was a citizen of Georgia; giving therefor the fictitious reason that otherwise her land would be sold for taxes. It is obvious that, had this attempt been successful, it would have greatly prejudiced, had it not wholly defeated, her right to proceed in this court. This attorney had ample opportunity to reply to these affidavits, and no reply was given or attempted by him, or by any one of the solicitors for respondents. Now, the court knows nothing of the character •of any of the witnesses from whom the affidavits on this point were obtained. There is before us the testimony of the complainant and the testimony of her relatives that she had, in point of fact, in good faith removed to Alabama, and lives there now. The witnesses on whom the respondents rely to defeat jurisdiction on this point have not been subjected to cross-examination, and, under the present state of the case, the court, in view of the character of the affidavits, and the conduct of Mr. Shipp in obtaining them, does not feel justified in deciding that there was not a proper diversity of citizenship. This ques
An injunction has been granted in this case, and, after the complete hearing we have had, the opinion of the court is that the injunction was proper, and must be continued. It is true that there are circumstances in this case which take it out of the ordinary category of applications to enjoin trespass by the cutting of timber. The law on this subject is fully stated in the case of Camp v. Dixon, 112 Ga. 882, 38 S. E. 71, 52 L. R. A. 755. It is, in view of that decision, and the general principles of law which it enunciates, a proper case to restrain a trespass of this character. But it is also true that the complainants claim title to large bodies of land which for a number of years they did not protect. They paid no taxes on these lands, and exercised no control over them; and not until the lands became valuable, owing to the rapid increase of population in that section, did the complainants come forward to establish what seems prima facie to be their legal title to these lands. As one result of this negligence on their part, sawmill men, who are respondents, have obtained control, in one way or another, of these lands. They have built their sawmills, laid down tramroads, making large expenditures, and are proceeding to cut the timber. This being true, it is the duty of a court of equity to conserve as far as possible the rights of all the parties, without unnecessary injury to any. With this view, while continuing the injunction in this case, it will be done under
