31 F. 501 | U.S. Circuit Court for the District of Eastern Michigan | 1887
A preliminary objection is taken to the jurisdiction of this court, which we think is fatal. By section 5 of act of March 3, 1875:
“If, in any suit commenced in a circuit court, * * * it shall appear * * * that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or eollusively made or joined, either as plaintiffs or defendants, for the purpose of creating a ease cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit.”
It is insisted by defendants that the deed from Shaw to plaintiff was colorable only, and was not made bona fide, but for the sole purpose of conferring jurisdiction upon this court. Let us examine the facts, and see how far this contention is supported by the proofs. In December, 1883, Shaw became the purchaser of these lands at execution sale for
Upon this state of facts we think it clear that the transfer in question was purely colorable. The case is not unlike those of Hayden v. Manning, 106 U. S. 586, 1 Sup. Ct. Rep. 617, and Little v. Giles, 7 Sup. Ct. Rep. 36. It had been decided by the supreme court of this state in Cranson
It is insisted, however, that as McLean was called as a witness by the defendants, they are bound by his statements that the transaction was bona fide, and that Shaw has no interest in this suit. We do not so understand the law. While it is undoubtedly true, as a general rule, that a party offering a witness in support of his case represents him as worthy of belief, and will not be permitted to impeach his general reputation for truth, or impugn his credibility by general evidence, he has never been considered as bound by his general statements as to motives or intention, or his bona fid-es in a particular transaction, but may draw any inference from his testimony which the facts stated by the witness seem to justify. Particularly is this true where the party is compelled to prove his case from the mouth of the opposite party, who may be presumed to be hostile to him. In a similar case, (Chandler v. Town of Attica, 22 Fed. Rep. 625,) Judge Wallace held, in passing- upon a similar issue, that the court was “at liberty to disregard the testimony of the parties, so far as it is incredible, and to interpret the transaction in a way consistent with the ordinary conduct and motives of business men.” If the story of the witness be consistent in itself, the party calling him is to a certain extent bound by his testimony; but, if his recital of facts is inconsistent with his theory, the court is at liberty to draw its own inference from them. If there be anything to the contrary in the case of Tarsney v. Turner, 2 Flip. 735, decided by the late circuit judge, we are compelled to enter our respectful dissent. Kavanagh v. Wilson, 70 N. Y. 177; Koehler v. Adler, 78 N. Y. 288; In re May, 1 Fed. Rep. 737.
The view we have taken of the plaintiff’s title to these lands renders it unnecessary to consider the further question, whether a bill will lie by a purchaser at an execution sale to remove the cloud from his title. In the case of Orendorf v. Budlong, 12 Fed. Rep. 24, we held, in accordance with what we believed to be the great weight of authority, that such a bill was maintainable; but the recent case of U. S. v. Wilson 118 U. S. 86, 6 Sup. Ct. Rep. 991, suggests a grave doubt whether, if this question were presented to the supreme court, it would not
A decree will be entered dismissing the bill, with costs.