172 F. Supp. 204 | S.D. Tex. | 1959
Action against the United States purportedly under the provisions of 28 U.S. C.A. § 2410 to clear title to real estate and to cancel and extinguish tax liens fixed thereon by the United States.
Plaintiff had conveyed the property to the Padre Island Beach Development
The Padre Island Company defaulted and on November 4, 1958, plaintiff bought the property at a trustee’s sale. The government is alleged to have attached its tax liens between Feb. 28, 1958 and October 30, 1958. Plaintiff alleges that these liens are subsequent and inferior to its vendor’s and deeds of trust liens.
The Government moves to dismiss on the ground that the action is not properly brought under 28 U.S.C.A. § 2410, reading as follows:
“(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.” As amended July 7, 1958.
It is to be noted that the foregoing does not expressly state, as do other statutes conferring jurisdiction, that “the district courts shall have * * * jurisdiction” in certain civil actions against the United States.
Plaintiff cites a number of authorities to support its contention that an action in the nature of a suit to quiet title may be brought independently in federal court against the United States alone under Section 2410 of Title 28 U.S. C.A.
Judge Kennerly held in the Trust Company case: (1) that the court had jurisdiction of an action to clear title without ordering a judicial sale and distribution of proceeds; and (2) that a sale of Texas real estate under powers conferred by a deed of trust extinguishes all subsequent liens, including a lien of
That amendment was the basis for the holding in Jones v. Tower Production, supra, that the United States could be joined as a party in a case already pending. Although diversity of citizenship is not discussed in that case, it must be presumed that it did exist; and Jones v. Tower Production, although here relied upon by plaintiff, is, in my judgment, in line with the holding in Wells v. Long and the other cases cited in footnote 3, supra, that section 2410 is merely a waiver of immunity, not a grant of jurisdiction, and presupposes independent jurisdiction.
Defendant’s motion to dismiss is granted but plaintiff may amend so as to authorize the bringing in of the Padre Island Company and Jane B. Hart as defendants, since diversity is claimed. If the United States is joined in the amended pleading, I believe the Court will have jurisdiction under section 2410.
The Clerk will notify counsel.
. Three deeds of trust were filed for record on the following dates to secure the following amounts: (1) Oct. 30, 1956,—$35,000; (2) Jan. 11, 1957,—$70,000; (3) May 28, 1957,—$85,000. Two other advances, one for $85,000 and the other for $66,000, on April 18, 1957, allegedly were secured by deeds of trust but there is no allegation they were recorded.
. Cf. 28 U.S.C.A. §§ 1346, 1347.
. Wells v. Long, 9 Cir., 162 F.2d 842; Seattle Ass’n of Credit Men v. United States, 9 Cir., 240 F.2d 906; Tamco, Inc., v. United States, D.C., 162 F.Supp. 534; Viviano v. United States, D.C., 105 F.Supp. 312.
. Trust Co. of Texas v. United States, D.C., 3 F.Supp. 683; Jones v. Tower Production Co., 10 Cir., 138 F.2d 675; Ansonia Nat. Bank of Ansonia, Conn. v. United States, D.C., 147 F.Supp. 864; Fried v. New York Life Ins. Co., D.C., 124 F.Supp. 345; Miners Sav. Bank of Pittston, Pa. v. United States, D.C., 110 F.Supp. 563.
. The other cases cited by plaintiff are distinguishable. Fried v. New York Life Ins. Co. and Miners Sav. Bank of Pittston, Pa. v. United States, supra, were cases removed by the United States from a state court having jurisdiction of the subject matter. I do not regard Ansonia National Bank of Ansonia, Conn. v. United States, supra, as authoritative.