The general principles of equity jurisprudence, as administered
in this country and in England, permit a bill to quiet title to be
filed only by a party in possession, against a defendant who has
been ineffectually seeking to establish a legal title by repeated
actions of ejectment, and as a prerequisite to such bill it was
necessary that the title of the plaintiff should have been
established by at least one successful trial at law.
The statutes of Iowa (Code, § 3273) having enlarged the
jurisdiction of the courts of equity of that state by providing
that
"an action to determine and quiet title to real property may be
brought by anyone having or
Page 155 U. S. 315
claiming an interest therein, whether in or out of possession of
the same, against any person claiming title thereto, though not in
possession,"
such enlarged jurisdiction, if sought to be enforced in a
federal court sitting within the state, can only be exercised
subject to the constitutional provision entitling parties to a
trial by jury, and to the provision in Rev.Stat. § 723, prohibiting
suits in equity where a plain, complete and adequate remedy may be
had at law.
In December, 1859, the land, the subject of controversy in this
suit, was patented to A. W. In the same month it was conveyed by.A.
W. avid his wife to F. W. In January, 1861, G. caused it to be
attached as the property of A. W. in an action founded upon a
judgment obtained against him in a court in Wisconsin, which case
proceeded to judgment against A. W. in September, 1861. Prior to
levy of execution in that case, G., in a suit in equity against A.
W. and F. W., obtained a decree declaring the deed to be void and
ordering the land to be sold in satisfaction of the judgment at
law. Levy was made, the land was sold, and the sheriff made a deed
conveying the property to G., who entered into possession, paid
taxes, and in 1881, 1882, and 1884 conveyed the lands to C., who
entered into possession and made valuable improvements upon them.
For thirty years the taxes have been paid by C. and his privies in
estate. F. W. having setup a claim to the property by reason of
alleged irregularities in the proceedings by which G. acquired
title, and having commenced an action in ejectment to enforce that
claim, C. filed this bill in equity setting up the foregoing facts,
averring that the deed by A. W. to F. W. was a cloud upon his title
and praying for a stay of the action of ejectment, for an
injunction against further proceedings at law, and for a decree
that C. held the lands free and clear from all claims of F. W. A
demurrer was interposed setting up, among other things, that the
writ of attachment was not attested by the seal of the court; that
no service of summons or notice was had upon A. W. in the State of
Iowa, and other matters named in the opinion. The demurrer being
overruled, answer was made, and a final decree was made in
plaintiff's favor.
Held:
(1) That the plaintiff had no adequate remedy at law, and the
Circuit Court consequently had jurisdiction in equity.
(2) That if no action in ejectment had been begun at law, the
long continued adverse possession of the plaintiff, and the
equitable title set up in the bill would have been a sufficient
basis for the maintenance of the suit.
(3) That where title to real property is concerned, equity has a
concurrent jurisdiction, which affords more complete relief than
can be obtained in a court of law.
(4) That the bill was in the nature of a judgment creditor's
bill, setting up defects of title against which they had a right to
ask relief from a court of equity.
(5) That it was immaterial whether the defects in the title of
G. were well founded or not.
(6) That the absence of the seal did not invalidate the
writ.
Page 155 U. S. 316
This was a bill in equity brought by the appellees, Conklin and
wife, to enjoin the appellant, Wehrman, from prosecuting an action
of ejectment in the court below against the appellees to recover
possession of the lands in controversy.
The bill, which was filed by T. B. Conklin and E. F. Conklin,
whose Christian names are not given but who appear from subsequent
allegations to be husband and wife, set forth that they were the
"absolute owners" of the property, which had been purchased of the
United States on June 9, 1857, by one Adolph Wehrman, who received
a patent therefor on December 1, 1859. Afterwards, and on December
17, 1859, Adolph Wehrman and wife conveyed the land in controversy,
with other lands -- about 2,060 acres in all -- by deed of warranty
to the defendant, Frederick Wehrman, for an expressed consideration
of $3,000. This deed was recorded in the proper office for the
County of Woodbury, to which the County of O'Brien, wherein the
lands were situated, was then attached for judicial purposes.
The bill further alleged that on January 14, 1861, a
copartnership known as Greeley, Gale & Co. began an action at
law, aided by an attachment in the District Court of O'Brien
County, upon a judgment rendered by the Circuit Court of Pierce
County, in the State of Wisconsin, against Adolph Wehrman, which
judgment was based upon notes given prior to the date of the
conveyance of said lands to the defendant by Adolph Wehrman. Such
judgment was rendered after personal service upon Adolph Wehrman in
the State of Wisconsin. A writ of attachment was issued by the
clerk of the District Court of O'Brien County, and levied upon the
lands in question, and notice personally served upon the defendant
in the State of Wisconsin, although no service of summons or notice
appears to have the writ of attachment was issued, there was
county, and levied upon the lands in question, no time fixed by law
for holding the term of the district court in O'Brien County,
though subsequently the judge appointed a term to be held on the 3d
day of June, 1861, to which day the writ of attachment was actually
made returnable. The venue of the cause having been changed to the
County of
Page 155 U. S. 317
Woodbury, on September 17, 1861, a judgment was rendered by the
District Court of that county against the defendant Wehrman for
$1,809.40 damages and costs, and the lands "described in the writ
of attachment" were ordered to be sold in satisfaction thereof. A
certified copy of this judgment was filed in the District Court of
O'Brien County.
Afterwards, and prior to the June term of 1862, Greeley, Gale
& Co. commenced a suit in equity in the District Court of
O'Brien County against Adolph Wehrman and wife and Frederick
Wehrman for the purpose of setting aside and cancelling the deed
from Adolph Wehrman and wife to Frederick Wehrman as fraudulent and
void against the creditors of the former, and subjecting the lands
described in this deed to the payment and satisfaction of their
judgment against Wehrman. The plaintiffs averred that they were
unable to set out the proceedings in such suit for the reason that
they had become lost and destroyed, but that there was personal
service upon the defendants in the State of Wisconsin; that
subsequently, and at the June term of 1862, a decree was rendered
by default declaring the deed to be fraudulent and void and
ordering the lands to be sold in satisfaction of the judgment
rendered by the District Court of Woodbury county, and the proceeds
to be applied to the payment of such judgment; that an execution
was subsequently, and on June 16, 1862, issued from the District
Court of Woodbury County, directed to the Sheriff or O'Brien
County, by virtue of which the sheriff levied upon the lands
described in the writ of attachment, and sold the same on July 31,
1862, to Carlos S. Greeley, one of the members of the firm of
Greeley, Gale & Co., who thereupon acknowledged satisfaction of
the judgment, and that on December 31, 1864, the land not being
redeemed, the sheriff executed to Greeley a sheriff's deed, which
was filed, whereby Carlos S. Greeley became the absolute owner of
the land.
That he subsequently acquired a tax title to such lands for the
taxes of 1858 and 1859, and that said lands, by conveyances from
Greeley in 1881, 1882, and 1884, became the property of Conklin,
who took immediate possession, and has since been in
Page 155 U. S. 318
full, open, notorious, and adverse possession of the same. That
the plaintiffs and their grantors paid all the taxes upon such
lands for thirty years, and have made valuable improvements by
putting some six hundred acres under cultivation, by the erection
of substantial buildings and fences, digging wells, and otherwise
improving the premises. That such improvements have been made at an
expense of $1,000, and in full reliance upon their title being good
and valid. That in the meantime defendant has never asserted any
right or title to the premises, or notified plaintiffs of his
interest in the same. That Wehrman never asserted any claim to the
premises until the land became valuable by reason of the
plaintiffs' expenditures; has never paid any taxes upon the
property, and, though having actual knowledge of the proceedings
taken by Greeley, Gale & Co. to subject the land to the payment
of their judgment, for more than twenty-seven years took no steps
to have the records corrected, or asserted any claim, or notified
purchasers of such claim, until his action at law was
commenced.
The bill further averred the conveyance by Adolph Wehrman to be
a cloud upon their title, and, being in actual possession and
occupancy of the land, they prayed that the action in ejectment be
stayed until the determination as to their rights to the land, and
that Wehrman be enjoined from further proceedings at law.
Defendant interposed a demurrer to the bill for the want of
jurisdiction and of equity, which was overruled, and he thereupon
answered, setting up certain defects in the proceedings under which
Greeley, Gale & Co. sold the land upon execution, and by virtue
of which proceedings plaintiffs claimed to have acquired a title,
viz.: (1) that the writ of attachment was not attested by
the seal of the court in which the action was brought; (2) that no
service of summons or notice was had upon the defendant Adolph
Wehrman in the State of Iowa; (3) that such notice as was given
described the action as having been brought upon a judgment
rendered May 12, 1860, when in fact the judgment was rendered
September 12, 1860, and judgment was taken upon the attachment
proceedings upon a judgment so rendered September 12, 1860;
Page 155 U. S. 319
(4) that the writ of attachment was made returnable at a term
commencing on June 3, 1861, when in fact the commencement of that
term was not fixed until more than a month after the writ was
issued; (5) that a change of venue was ordered from O'Brien County
to Woodbury County, and the papers sent there without having been
in any manner certified or verified by the seal of the court in
which the suit was brought; (6) that the judgment was
in
personam, and ordered the property "described in the writ of
attachment" to be sold to satisfy the same, when in fact no
property was described in the writ, but only in the return of the
officer endorsed thereon; (7) that in the subsequent equity suit to
subject the lands to the payment of this judgment, there was no
personal service or notice of process upon the appellant, Frederick
Wehrman, in the State of Wisconsin; (8) that the tax deed was
defective inasmuch as the taxes on the lands for 1858 and 1859 were
payable by law to the Treasurer of Woodbury County, whereas the tax
deed shows that the treasurer of O'Brien County attempted to sell
the lands for taxes and give a tax deed.
The case was argued upon pleadings and proofs, and the court
made a final decree in which the adverse claims of the defendant,
Wehrman, were adjudged to be invalid and groundless, the
complainants decreed to be the true and lawful owners of the land,
and their title to be quieted against the claims of the defendant,
who was perpetually enjoined from setting up the same; and,
further, that defendant be enjoined from further proceedings at
law.
From this decree defendant appealed to this Court. The opinion
of the court upon demurrer is found in 38 F. 874, and upon final
hearing in 43 F. 12.
Page 155 U. S. 321
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This is a bill in equity not only to stay an action in ejectment
at law, but to remove a cloud cast upon the Conklins' title to the
lands in question, created by a deed from Adolph Wehrman to
Frederick Wehrman, appellant and defendant in the bill, and to
quiet their own title thereto.
1. Defendant's principal contention is that equity has no
jurisdiction of the case, for the reason that the contest concerns
the legal title only, and that plaintiffs have a plain, adequate,
and complete remedy at law. It is undisputed that Carlos S.
Greeley, a member of the firm of Greeley, Gale & Co., bought
the lands in question at a sheriff's sale which took place on July
31, 1862, and that for about twenty years thereafter, when the
lands were sold to Conklin, he paid the taxes upon the land. That
the Conklins, upon their purchase of the several parcels, took
immediate possession, and that they have since been in full, open,
and adverse possession and occupancy of the same; have made large
and valuable improvements thereon by putting some six hundred acres
under cultivation, and by erecting substantial buildings and
fences, digging wells, and otherwise improving the premises, making
the same more valuable, and have expended $1,000 in such
improvements, in good faith and full reliance upon such title being
good and valid. That the defendant during such time, and for more
than twenty-seven years, has never done any act or taken any step
to have the records corrected, or to assert any claim or his part
to such lands, or to notify purchasers of his interest in the same,
until he began his action of ejectment.
The general principles of equity jurisprudence, as administered
both in this country and in England, permit a bill to quiet title
to be filed only by a party in possession against a
Page 155 U. S. 322
defendant who has been ineffectually seeking to establish a
legal title by repeated actions of ejectment, and as a prerequisite
to such bill it was necessary that the title of the plaintiff
should have been established by at least one successful trial at
law. Pomeroy's Equity Jurisprudence sections 253, 1394, 1396. At
common law, a party might by successive fictitious demises bring as
many actions of ejectment as he chose, and a bill to quiet title
was only permitted for the purpose of preventing the party in
possession being annoyed by repeated and vexatious actions. The
jurisdiction was in fact only another exercise of the familiar
power of a court of equity to prevent a multiplicity of suits by
bills of peace. A statement of the underlying principles of such
bills is found in the opinion of this Court in
Holland v.
Challen, 110 U. S. 15,
110 U. S. 19, in
which it is said:
"To entitle the plaintiff to relief in such cases, the
concurrence of three particulars was essential: he must have been
in possession of the property; he must have been disturbed in its
possession by repeated actions at law, and he must have established
his right by successive judgments in his favor. Upon these facts
appearing, the court would interpose and grant a perpetual
injunction to quiet the possession of the plaintiff against any
further litigation from the same source. It was only in this way
that adequate relief could be afforded against vexatious litigation
and the irreparable mischief which it entailed."
This method of adjusting titles by bill in equity proved so
convenient that in many of the states statutes have been passed
extending the jurisdiction of a court of equity to all cases where
a party in possession, and sometimes out of possession, seeks to
clear up his title and remove any cloud caused by an outstanding
deed or lien which he claims to be invalid, and the existence of
which is a threat against his peaceable occupation of the land and
an obstacle to its sale. The inability of a court of law to afford
relief was a strong argument in favor of extending the jurisdiction
of a court of equity to this class of cases.
The statute of Iowa upon which this bill is based is an example
of this legislation, and provides (sec. 3273) that
"an
Page 155 U. S. 323
action to determine and quiet title to real property may be
brought by anyone having, or claiming an interest therein, whether
in or out of possession of the same, against any person claiming
title thereto, though not in possession."
It will be observed that this statute enlarges the jurisdiction
of courts of equity in the following particulars:
1. It does not require that plaintiff should have been annoyed
or threatened by repeated actions of ejectment.
2. It dispenses with the necessity of his title having been
previously established at law.
3. The bill may be filed by a party having an equitable as well
as a legal title.
Grissom v. Moore, 106 Ind. 296;
Stanley v. Holliday, 30 N.E. 634;
Echols v.
Hubbard, 7 So. 817.
4. In some states it is not even necessary that plaintiff should
be in possession of the land at the time of filing the bill.
These statutes have generally been held to be within the
constitutional power of the legislature, but the question still
remains to what extent will they be enforced in the federal courts,
and how far are they subservient to the constitutional provision
entitling parties to a trial by jury and to the express provision
of Rev.Stat. section 723, inhibiting suits in equity in any case
where a plain, complete, and adequate remedy may be had at law?
These provisions are obligatory at all times and under all
circumstances, and are applicable to every form of action, the laws
of the several states to the contrary notwithstanding. Section 723
has never been regarded, however, as anything more than declaratory
of the existing law,
Boyce v.
Grundy, 3 Pet. 210, and, as was said in
N.Y.
Guaranty Co. v. Memphis Water Co., 107 U.
S. 205,
107 U. S. 210,
"was intended to emphasize the rule, and to impress it upon the
attention of the courts." It was not intended to restrict the
ancient jurisdiction of courts of equity, or to prohibit their
exercise of a concurrent jurisdiction with courts of law in cases
where such concurrent jurisdiction had been previously upheld.
The question of enforcing these state statutes was first
considered
Page 155 U. S. 324
in
Clark v.
Smith, 13 Pet. 195, in which a bill was filed by a
party in possession to compel the defendant to release a pretended
title to certain lands claimed by him under patents from the State
of Kentucky. The conveyance asked by the bill was sought to be in
conformity with the provisions of an act of the assembly of
Kentucky giving jurisdiction to courts of equity in such cases. It
was held that, the legislature
"having created a right, and having at the same time prescribed
the remedy to enforce it, if the remedy prescribed is consistent
with the ordinary modes of procedure on the chancery side of the
federal courts, no reason exists why it should not be pursued in
the same form as in the state courts. On the contrary, propriety
and convenience suggest that the practice should not materially
differ where titles to land are the subjects of investigation."
This case was cited and approved in
Parker v.
Overman, 18 How. 137, where a proceeding under a
statute of Arkansas prescribing a special remedy for the
confirmation of sales of land by a sheriff was held to be
enforceable in the federal courts. In
Holland v. Challen,
110 U. S. 15, the
principle of this case was extended to one of wild land of which
neither plaintiff nor defendant was in possession. Plaintiff
claimed under a tax title, and the property was described in the
bill as unoccupied, wild, and uncultivated land. The question was
elaborately examined and the jurisdiction sustained upon the ground
that an enlargement of equitable rights by state statutes may be
administered in the federal courts as well as in the courts of the
state, citing
Clarke v. Smith and the case of
Broderick's
Will, 21 Wall. 520. The case was treated as one
where the plaintiff had no remedy at law against the defendant, who
claimed an adverse interest in the premises. In delivering the
opinion, however, it was intimated, page
110 U. S. 25,
that if a suit were brought in the federal court under the Nebraska
statute against a party in possession,
"there would be force in the objection that a legal controversy
was withdrawn from a court of law, but that is not this case, nor
is it of such cases we are speaking."
Another step in the same direction was taken in
Reynolds
v. Crawfordsville Bank, 112
Page 155 U. S. 325
U.S. 405, in which a bill was sustained upon an equitable title,
although it would appear from the report of the case that such
title was not fortified by an actual possession, and in
Chapman
v. Brewer, 114 U. S. 158, a
similar suit was upheld under a statute of Michigan permitting
bills to quiet title to be filed by any person in possession.
Subsequent cases, however, denied the power of the federal
courts to afford relief under such statutes where the complainant
was not in possession of the land, and in
Whitehead v.
Shattuck, 138 U. S. 146,
particularly, it was held that where the proceeding is simply for
the recovery and possession of specific real or personal property,
or for the recovery of a money judgment, the action is one at
law.
"The right which in this case the plaintiff wishes to assert is
his title to certain real property, and the remedy which he wishes
to obtain is its possession and enjoyment, and in a contest over
the title both parties have a constitutional right to call for a
jury."
The case of
Holland v. Challen was distinguished as one
where neither party was in possession of the property, and it was
further said that in the case of
Reynolds v. Crawfordsville
Bank, the question did not arise as to whether the plaintiff
had a remedy at law, but whether a suit to remove the cloud
mentioned would lie in a federal court. The case of
United
States v. Wilson, 118 U. S. 86, was
really to the same effect, though not cited in
Whitehead v.
Shattuck. See also Frost v. Spitley, 121 U.
S. 552. But nothing was said in either of these to
disturb the harmony of the previous cases.
The real question, then, to be determined in this case is
whether the plaintiffs have an adequate remedy at law. If they
have, then section 723 is controlling, and, notwithstanding a local
practice under the Code, where no discrimination is made between
actions at law and in equity, may authorize such suit, the federal
courts will not entertain the bill, but will remit the parties to
their remedy at law. The bill under consideration alleges the
plaintiffs to be the "absolute owners" of the premises, and then
sets forth certain proceedings by which it is alleged they became
such, but it is claimed and substantially admitted in the bill
that, by reason of certain
Page 155 U. S. 326
irregularities in these proceedings, it is doubtful whether the
legal title ever became vested in the plaintiffs. The bill then
sets up the long possession of the plaintiffs and their grantors,
large outlays by them in improvements upon the land, and the
practical abandonment of the same by the defendant, all of which,
it is claimed, constitute an estoppel
in pais. Plaintiffs
also rely upon the laches of Wehrman in bringing the action in
ejectment, and allege a failure to bring his suit within the period
prescribed by the statute of limitations. It is entirely clear that
if no action in ejectment had been begun at law, the long continued
adverse possession of the plaintiffs and the equitable title set up
in the bill would have been a sufficient basis for the maintenance
of the suit, and it is not easy to see why the commencement of such
action should place them in a worse position than they were in
before, or oust them of their remedy in equity.
If the only contest in this case were as to whether the legal
title to these lands was in the plaintiffs or defendant, it may be
that a court of law would be the only proper forum for the
settlement of this dispute; but the plaintiffs further claim that
by reason of certain defects in the proceedings by which they
acquired title, such title is doubtful at law, but that the long
delay of the plaintiff at law in the assertion of his rights
establishes a defense of laches, and his failure to set up his
title, and his long acquiescence in the Conklins' possession of the
lands, estop him from proceeding either at law or in equity to oust
them.
It is scarcely necessary to say that complainants cannot avail
themselves
as a matter of law of the laches of the
plaintiff in the ejectment suit. Though a good defense in equity,
laches is no defense at law. If the plaintiff at law has brought
his action within the period fixed by the statute of limitations,
no court can deprive him of his right to proceed. If the statute
limits him to twenty years, and he brings his action after the
lapse of nineteen years and eleven months, he is as much entitled,
as matter of law, to maintain it, as though he had brought it the
day after his cause of action accrued, though such delay may
properly be considered by the jury in connection
Page 155 U. S. 327
with other facts tending to show an estoppel. As was said by
Chancellor Green in
Horner v. Jobs, 13 N.J.Eq. 19, 23:
"Nor can the staleness of the claim or the lapse of time or the
statute of limitations avail the complainant. The defendant is
asking no relief at the hands of this court. He was seeking to
enforce his legal rights in a court of law. The complainant is here
asking the aid of this court. It is the claim of the complainant,
not the title of the defendant, to which the equitable defense of a
stale claim is applicable. No lapse of time can avail the
complainant, unless it be a bar to the defendant's title under the
statute of limitations. This defense will avail the defendant at
law as well as in equity, and constitutes no ground for enjoining
proceedings at law."
Had Wehrman seen fit to resort to a court of equity in assertion
of his rights, undoubtedly the defendants to such suit might have
interposed the defense of laches, but it is quite a different
question whether it could be made the basis of a bill. It may,
however, be considered as one of the facts of the case tending to
show an estoppel.
Undoubtedly the facts set forth in this bill are such as tend to
show an equitable estoppel on the part of Wehrman, and this Court
did hold in a very carefully considered opinion in
Dickerson v.
Colgrove, 100 U. S. 578,
that an estoppel
in pais was an available defense to an
action at law. This case was cited and applied in
Baker v.
Humphrey, 101 U. S. 494, in
Kirk v. Hamilton, 102 U. S. 68, and
in
Drexel v. Berney, 122 U. S. 241,
although in the last case the bill was supported upon the ground
that a resort to a court of equity in the particular case was
necessary in order to make the estoppel available. As was said by
Mr. Justice Matthews:
"All that can properly be said is that in order to justify a
resort to a court of equity, it is necessary to show some ground of
equity, other than the estoppel itself, whereby the party entitled
to the benefit of it is prevented from making it available in a
court of law."
To the same effect is
Gable v. Wetherholt, 116 Ill.
313.
But even if it be assumed that the facts relied upon as
constituting an equitable estoppel in this case might be laid
before
Page 155 U. S. 328
a jury in a common law action, and, if established, operate as a
defense, yet it does not necessarily follow that a bill in equity
will not also lie to cancel the outstanding deed from Adolph to
Frederick Wehrman as fraudulent, or at least as unavailable under
the peculiar circumstances of the case. There is a class of cases
which hold that where there is actual fraud, no remedy at law is
complete and adequate except that which removes the fraudulent
title. As early as 1750, it was held by Lord Chancellor Hardwicke,
in
Bennet v. Musgrove, 2 Ves.Sen. 51, that a bill would
lie by an execution creditor to set aside a fraudulent conveyance,
whether he could recover at law or not. Objection having been made
to the bill upon the ground that the remedy at law was complete,
the Lord Chancellor observed:
"But be it as it may, whether he could recover or not, he is
entitled to come into this court, the distinction in this court
being, where a subsequent purchaser for valuable consideration
would recover the estate and set aside or get the better of a
precedent voluntary conveyance, if that conveyance was fairly made
without actual fraud, the court will say take your remedy at law;
but wherever the conveyance is attended with actual fraud, though
they might go to law by ejectment and recover the possession, they
may come into this court to set aside that conveyance; which is a
distinction between actual and presumed fraud from its being merely
a conveyance."
This is still the law in England.
Blenkinsopp v.
Blenkinsopp, 1 De G., M. & G. 495. The leading case in the
federal courts upon this point is
Bean v. Smith, 2 Mason
252, in which Mr. Justice Story held that notwithstanding the
restrictive clause of the Judiciary Act, Rev.Stat. § 723, a
judgment creditor might file a bill in equity against his debtor to
set aside a fraudulent conveyance, since there is not, in the
proper sense of the term, a plain, adequate, and complete remedy at
law.
While, in view of our decisions in
Insurance
Company v. Bailey, 13 Wall. 616, and
Buzard v.
Houston, 119 U. S. 347,
there may be a doubt whether this remedy is available in personal
actions, the law is well settled that where title to real property
is concerned, equity has a concurrent jurisdiction,
Page 155 U. S. 329
because it may not only enjoin an action at law, but may order a
cancellation of the fraudulent conveyance and prohibit the bringing
of further suits at law upon the fraudulent title, and thus afford
a more complete relief than is possible in a court of law.
Dodge v. Griswold, 8 N.H. 425;
Tappan v. Evans,
11 N.H. 311;
Sheafe v. Sheafe, 40 N.H. 516;
Miller v.
Scammon, 52 N.H. 609;
Traip v. Gould, 15 Me. 82;
Cox v. Dunham, 8 N.J.Eq. 594;
Sheppard v.
Iverson, 12 Ala. 97;
Planters' &c. Bank v.
Walker, 7 Ala. 926;
Murphy v. Blair, 12 Ind. 184;
Mohawk Bank v. Atwater, 2 Paige 54; 2 Pom.Eq.Juris. §
1415.
When analyzed, the bill under consideration is really in the
nature of a judgment creditors' bill filed by the plaintiffs, who
claim that they have acquired by successive assignments from the
original creditors a lien upon certain lands, which the debtor has
conveyed in fraud of the original creditors. There are also, it is
true, the additional reasons that the plaintiffs have long been in
possession of the land; that the records of the case, through which
the original purchaser at the execution sale claimed to have
acquired the legal title to the lands, have been lost, and that
their title, though perfectly good in equity, may be technically
insufficient at law. In such case, they have a right to call upon a
court of equity for relief against such defects.
Simmons Creek
Coal Co. v. Doran, 142 U. S. 417,
142 U. S. 449;
Stone v. Anderson, 6 Foster (26 N.H.) 506;
Conroy v.
Woods, 13 Cal. 626;
Robert v. Hodges, 16 N.J.Eq.
305.
2. Upon the merits, the case presents no difficulty whatever. We
do not find it necessary to examine in detail the several defects
which are claimed to invalidate the proceedings under which Greeley
finally became the purchaser of the land in question, since we are
all of the opinion that the plaintiffs are entitled to a decree
whether these proceedings vested a legal title in Greeley or not.
Greeley, Gale & Co. had a legal claim against Adolph Wehrman
upon a judgment lawfully obtained against him in Wisconsin. Upon
the basis of this judgment, they brought suit against him in Iowa,
sued out a writ of attachment, and levied it upon the lands in
question.
Page 155 U. S. 330
Admitting that the writ was not impressed with such a seal as
the law required, it was not, under the circumstances, void upon
that ground. O'Brien County was not organized as an independent
county until February 6, 1860. The writ was issued January 14,
1861. The county offices being evidently not yet in a complete
working condition, the clerk affixed an ordinary private seal or
scroll to the writ, with a statement that no seal had yet been
procured. Granting that a failure to use an engraved seal actually
provided would avoid the writ, certainly the clerk was entitled to
a reasonable time to procure such seal. In the meantime, however,
the rights of suitors and of the public ought not to be prejudiced
by the lack of one. The whole civil and criminal business of the
county ought not to come to a stop simply through the failure of
its officers to provide it with a seal. As was justly observed by
the learned judge of the circuit court:
"The only purpose of the seal is to authenticate the issuance of
the writ. May not such authentication be furnished in other ways if
for any reason the court is without an engraved seal for a time?
Suppose that today the engraved seal of O'Brien County should be
destroyed or stolen, must all the judicial proceedings therein be
brought to a standstill awaiting the procurement of another
engraved seal? Would not this be subverting substance to mere form?
Would it not be permissible for the court to continue the issuance
of writs of attachment and execution, having attached thereto a
scroll as a seal, the writ on its face showing the reason
thereof?"
While the clerk does not seem to have used any great diligence
in procuring a seal, his laches in that particular cannot be made
the subject of inquiry here. The fact that no engraved seal had
been procured is a sufficient excuse for the purpose of the case.
The sheriff, by virtue of this writ, made a levy upon the lands in
question, endorsed such levy upon the writ, and caused personal
notice to be served upon the defendant Wehrman in the State of
Wisconsin, January 25, 1861.
It is also true that the petition for the attachment described
the judgment sued upon on as having been rendered on May 12,
Page 155 U. S. 331
1860, when in fact it was not rendered until September 12; that
the writ was made returnable upon a day which had not been fixed as
the first day of the next term of the court, though it was
subsequently fixed upon that day, and that, in changing the venue
of the action to Woodbury County, the transcript of the record was
sent to such county without being certified by the seal of the
court in which the suit was brought. While these might have been
good defenses to the action if seasonably interposed, they do not
render the writ and all the proceedings thereunder void. Indeed it
is at least doubtful whether if no notice at all had been served
upon Wehrman, the lien of the attachment would have thereby been
lost. The object of the notice is to apprise the defendant of the
commencement of the suit, and to call him in to defend and prevent
the plaintiff from obtaining judgment if he can. The object of the
writ, which is issued
ex parte, is to enable the plaintiff
to obtain a lien upon the land, which may be subsequently enforced
by a sale upon execution if judgment be obtained. If notice were
actually served upon the defendant in Wisconsin, as claimed, it is
difficult to see why the judgment subsequently entered up was not
valid as against the land attached, though of course not against
the defendant
in personam.
Whether the subsequent proceeding by bill to set aside the deed
from Adolph to Frederick Wehrman was invalid or not it is
unnecessary to inquire. The attachment and subsequent long
continued possession thereunder vested an interest in the present
plaintiffs which was amply sufficient as a basis for this bill. If,
as is claimed, the decree in the chancery court was void because no
personal service was obtained upon defendant Wehrman within the
State of Iowa, there is greater reason why jurisdiction of the
present bill should not be declined, since the object of this bill
is practically the same as the other,
viz., to obtain the
benefit of the attachment proceedings. If personal service were
obtained in the State of Wisconsin, we see no objection to the
decree as rendered, since the Code of Iowa, sections 2831, 2835,
permits personal service or service by publication upon defendants
out of the jurisdiction "in an action for the sale of real property
under
Page 155 U. S. 332
a mortgage lien or other encumbrance or charge," and such
statutes have been upheld by this Court.
Arndt v. Griggs,
134 U. S. 316. If
no proper service were obtained, then we are able to do in this
suit what was ineffectually attempted there.
The salient and decisive facts of this case are that Greeley,
Gale & Co. obtained, or at least attempted to obtain, a lien
upon this land by virtue of their attachment; that personal service
in such proceeding was made upon Adolph Wehrman in the State of
Wisconsin January 25, 1861; that they went through the form of
obtaining a judgment against these lands and selling them upon
execution; that Greeley purchased these lands upon such sale, paid
taxes thereon, acquired tax titles thereto, and subsequently sold
the same, and that plaintiffs in this suit became the purchasers;
that they immediately took possession of the same, and that they
and their grantors have been in open, notorious, and undisturbed
possession for twenty-seven years, have built a house and other
buildings, and made other improvements thereon; that Frederick
Wehrman, the defendant herein, took title to these lands December
17, 1859, the very day that suit was originally begun against
Adolph; that the deed was made to him under circumstances tending
strongly to show that it was intended as a fraud upon the creditors
of Adolph Wehrman; that he took no steps to assert his title or
right of possession to these lands, but practically abandoned the
same until, by the increase of population and the settlement of the
country, they had become of material value. Whether he had actual
notice of the chancery suit or not, it is highly improbable that if
he had been a
bona fide purchaser of these lands, lying in
another state, for which he had paid or agreed to pay $3,000
(almost double their actual value), he would have taken no steps
for nearly thirty years to assert his right thereto. Particularly
is this so in view of the fact that he was only an ordinary day
laborer at the time he took the deed, having only a few farming
implements and a meager supply of household goods, and, as one of
the witnesses expressed it, could not have borrowed without
security one-tenth of the sum he purported to have paid for the
property.
Page 155 U. S. 333
Evidently he was not a man to invest $3,000 in wild lands and
turn his back upon them for twenty-seven years. As was said by this
Court in
Underwood v. Dugan, 139 U.
S. 380,
139 U. S.
384:
"Ownership of property implies two things: first, attention to
it; second, a discharge of all obligations, of taxation or
otherwise, to the state which protects it. When it appears that one
who now asserts a title to property, arising more than the lifetime
of a generation ago, has during all these years neglected the
property, and made no claim of title thereto, a reasonable
presumption is that, whatever may be apparent on the face of the
instrument supposed to create the title, were the full facts known,
facts which cannot now be known by reason of the death of the
parties to the transaction, it would be disclosed that no title was
in fact obtained, or if that be not true, that he considered the
property of such little value that he abandoned it to the state
which was protecting it."
Considering all the facts of this case, it is not a matter of
surprise that when charged in this bill with having received his
deed without consideration and with intent to defraud the creditors
of his brother Adolph, the defendant should not have been called to
testify in relation to the transaction. In short, it would be
difficult to conceive of a clearer case of estoppel
in
pais.
The decree of the court is therefore
Affirmed.
