Plaintiff's intestate, a married woman, filed a bill in the
district court of the United States against her husband's assignee
in bankruptcy and the purchaser of a lot of land at the assignee's
sale, setting forth her equitable claim to the property and praying
that the purchaser be required to convey to her. A decree was
entered in her favor and an appeal taken to the Circuit Court by
Campbell, the purchaser. Plaintiff did not press the appeal, but
began a new action in ejectment in a state court against the
defendant, Campbell, who set up a new title in himself and
recovered a judgment. Thereupon, and sixteen years after the decree
in her favor in the district court, plaintiff moved to dismiss the
appeal to the circuit court. This motion was denied. Thereupon she
set up the decree in her favor, although it had not been pleaded by
either party in the state court.
Held:
(1) That, the plaintiff having abandoned her suit in the
district court, it was too late to move to dismiss the appeal.
(2) That the decree, not having been pleaded in the state court,
could not now be resuscitated.
(3) That the judgment of the state court was
res
adjudicata of all the issues between the parties, and that the
decrees of the circuit court and circuit court of appeals reversing
the decree of the district court and dismissing plaintiff's bill
should be affirmed.
This was a suit in equity instituted in the District Court for
the Western District of Pennsylvania April 30, 1877, by Jane Bryar
against James Bryar, her husband, and Robert Arthurs, his assignee
in bankruptcy, to enjoin the latter from partitioning or offering
for sale an undivided half of seven acres of land in the City of
Pittsburgh for which, as she alleged, a conveyance had been made by
mistake to her husband, though she had paid the purchase money with
her own individual funds. Notwithstanding the pendency of this
bill, the assignee proceeded to sell the land at assignee's sale to
the defendant Thomas Campbell, subject to the two mortgages
hereinafter mentioned. On August 15, 1878, Campbell was permitted
to intervene and defend
Page 177 U. S. 650
the bill, the bill being amended by a new prayer that the
defendants make, execute, and deliver to the plaintiff a deed for
the property in question.
The case was heard upon pleadings and proofs, and on June 26,
1879, a decree was rendered in favor of the plaintiff declaring her
to be the equitable owner of the land in suit; that defendant
Cambell was chargeable with notice of her rights, and was bound to
convey according to the prayer of the bill. An appeal was
immediately taken by Arthurs and Campbell to the circuit court,
where the case was docketed August 30, 1879. Here, the case rested,
without further action, for sixteen years, and until December 20,
1895.
Meantime, however, and in February, 1880, Jane Bryar and her
husband in her right began an action of ejectment in the Court of
Common Pleas of Allegheny County against Thomas Campbell, John W.
Beckett, and William B. Rodgers, for the land in controversy, which
resulted, May 19, 1881, in a verdict for the defendants, and a writ
of error from the Supreme Court of Pennsylvania, which, on November
14, 1881, affirmed the judgment of the court of common pleas. 30
Pitts.Legal Jour. 12.
Nothing further appears to have been done until December 30,
1895, when Mrs. Bryar moved the Circuit Court for the Western
District of Pennsylvania for an order declaring the appeal of
Thomas Campbell from the decree of the district court deserted upon
the ground that the appellants had failed to bring up the record
from the district court, to pay the entry costs, or to prosecute
their appeal to the next term of the circuit court. Campbell filed
an answer to this motion setting up his purchase of the land at
assignee's sale and stating that he had not prosecuted his appeal
because he had purchased a mortgage made by James Bryar to Edward
R. James, upon which mortgage the property had been sold to his
attorney, William B. Rodgers, who had conveyed to him; that he went
into possession of the land; that the petitioner and her husband
had brought the action of ejectment against him above referred to,
and a verdict had been rendered in favor of the defendants; that he
believed the result of the ejectment case made it unnecessary
Page 177 U. S. 651
for any further proceedings upon the appeal, and that he and his
vendees had ever since been in undisputed possession of the land.
The motion to dismiss the bill, or rather to declare the appeal
deserted, was denied, and the death of the plaintiff Jane Bryar
being suggested, it was ordered that her heirs at law, the
appellants, be substituted as plaintiffs.
The appeal subsequently went to a hearing in the circuit court
upon the former testimony, and new testimony put in by Campbell in
support of his answer, and resulted in a reversal of the district
court, and a dismissal of the bill. Plaintiffs appealed to the
circuit court of appeals, which affirmed the decree of the circuit
court, 62 U.S.App. 435, whereupon plaintiffs appealed to this
Court.
MR. JUSTICE BROWN delivered the opinion of the court:
Plaintiffs ask for a reversal of this decree upon the grounds,
first, that the appeal from the district court to the circuit court
in bankruptcy was not claimed and notice given to the clerk of the
district court within the time prescribed by the rules, and second
because it affirmed the decree of the circuit court upon its
merits.
1. If there be anything in the defense that the appeal from the
district court to the circuit court in the bankruptcy proceedings
was not taken within the time prescribed by law, it comes too late.
It is true that Rev.Stat. sec. 4981 declares that
"no appeal shall be allowed in any case from the district to the
circuit court unless it is claimed, and notice given thereof to the
clerk of the district court, to be entered with the record of the
proceedings, and also to the assignee or creditor, as the case may
be, or to the defeated party in equity, within ten days after the
entry of the decree or decision appealed
Page 177 U. S. 652
from."
It appears that the decree of the district court was entered
June 26, 1879, and that a petition for an appeal was addressed to
the judge of the circuit court, the jurat to which was dated June
28, and on June 30 a bond for costs on appeal was filed. The
appeal, however, to the circuit court was not allowed and filed
until July 16, twenty days after the decree of the district court,
and it does not appear that any notice was given to the clerk of
the district court, or to the defeated party, as required by sec.
4981; but it further appears that the petition for appeal, the
allowance thereof, a copy of the docket entries and a bond for
costs were filed in the circuit court, August 30, 1879. Here the
matter rested until December 20, 1895, when Mrs. Bryar, the
prevailing party, moved the circuit court not to dismiss the appeal
for the reason that it was not taken in time, but, stating that it
had been "duly allowed," to obtain an order declaring it deserted,
for the reason that the appellants had failed to bring up the
record from the district court, pay the entry costs, or prosecute
their appeal. This was apparently treated as a motion to dismiss,
and was denied. After a lapse of sixteen years, it is now too late
to ask this Court to hold that the appeal should have been
dismissed for a reason which does not seem to have been called to
the attention of the circuit court when the original motion was
made to declare the appeal deserted. If the plaintiffs in that case
had intended to insist upon their rights under the decree, they
should either have moved to dismiss the appeal within a reasonable
time or pressed it to a hearing in the circuit court, instead of
abandoning it and bringing a new suit upon the same cause of action
in the state court.
2. The case upon the merits depends upon the effect to be given
to the judgment in favor of Campbell in the ejectment suit brought
by Mrs. Bryar in the state court. Mrs. Bryar appears, for some
unexplained reason, to have abandoned her original suit in the
district court notwithstanding the decree in her favor, and to have
elected to begin an action in ejectment in the state court. To this
action Campbell appears to have set up a new defense, which had
accrued since the decree in the district court, arising upon two
mortgages executed in
Page 177 U. S. 653
1874 by James Bryar, namely, one to Thomas McClintock for
$3,000, the other to E. R. James for $2,000, which mortgages were,
in 1878, foreclosed and judgment entered. In the opinion of the
supreme court of the state, it is stated that William R. Rodgers,
one of the defendants in the ejectment action, as the attorney for
Campbell, purchased the judgments obtained upon the mortgages,
issued execution, sold the seven acres at sheriff's sale, and
bought the same for $50. A deed was made by the sheriff to Rodgers,
who gave a memorandum to Campbell, stating that he would convey to
anyone Campbell might wish when requested so to do. It was not
disputed that Rodgers bought and held in trust for Campbell
whatever title he obtained by the sheriff's deed.
Upon this state of facts, the court held that the mortgages were
valid liens, and the fact that the mortgagees were entirely
unaffected by any notice of the secret equity of Mrs. Bryar being
undisputed, it necessarily followed that, whether Campbell had
notice of not, he stood in their shoes when he purchased the title
derived from them.
"It is contended, however, that Campbell having bought at the
assignee's sale subject to these mortgages, was bound to pay them
off, and when he did so, they were extinguished. But unless he
expressly or by necessary implication agreed to pay them, he was
not bound to do so, and had an undoubted right to secure his own
title by purchasing them and proceeding to perfect his title under
them."
It will be seen from this that Campbell did not rely upon his
purchase at the assignee's sale, as to which the district court
seems to have held that he had notice of Mrs. Bryar's equity in the
premises, but upon the purchase of the rights of the mortgagees,
who appear to have taken the mortgages, supposing the property to
belong to James Bryar, in whose name it stood upon the record.
We are advised of no substantial reason why the judgment of the
state court does not operate as
res judicata in this case.
The original suit in the district court was begun by Mrs. Bryar,
one of the original plaintiffs in the ejectment suit, for the
purpose of compelling the defendant Thomas Campbell to convey to
her as the equitable owner thereof the premises now in dispute.
Page 177 U. S. 654
The ejectment suit was begun by her and her husband, in her
right, upon the same title against three defendants, one of whom
was Campbell, to obtain possession of the same property. The action
was brought by Mrs. Bryar upon her equitable title, a procedure
allowable in the courts of Pennsylvania, where an equitable
ejectment is the full equivalent of and substitute for a bill in
equity.
Peterman v. Huling, 31 Pa. 432;
Winpenny v.
Winpenny, 92 Pa. 440. Such procedure, though not authorized by
the practice of the federal courts, will be respected when the
question arises upon the effect to be given the judgment.
Mills v.
Duryee, 7 Cranch 481;
Miles v.
Caldwell, 2 Wall. 36;
Faber v. Hovey, 117
Mass. 107. While it appears from the opinion of the supreme court
of the state that the decree of the district court was called to
its attention, it was not set up as a bar to the ejectment in the
state court for the obvious reason that Mrs. Bryar had abandoned it
by bringing suit in the state court, and there was no object in
pleading it, while Campbell did not plead it because it was adverse
to him. It would seem too that under the practice in Pennsylvania,
a decree cannot be used as
res judicata pending an appeal
to a higher court.
Souter v. Baymore, 7 Pa. 415. He could
not even plead the pendency of the former suit.
Smith v.
Lathrop, 44 Pa. 326;
Stanton v. Embrey, 93 U. S.
548,
93 U. S.
554.
It is now contended that the existence of this prior decree
ousted the jurisdiction of the state court. Indeed, the only object
of Mrs. Bryar in endeavoring to have the appeal dismissed seems to
have been to reinstate the original decree in her favor more
effectually, and to insist that it was a final disposition of the
matters in controversy between herself and Campbell. The question
is whether, having abandoned the original decree for a new action
in the state court in which she was defeated, her heirs can now
claim that the original decree in the district court, though not
set up as a bar by either party, and notwithstanding the appeal,
can be resuscitated after a lapse of sixteen years for the purpose
of defeating the action of the state court. To state this
proposition is to answer it. The state court was at liberty to
proceed to dispose of the case upon
Page 177 U. S. 655
the issues made by the parties, and as neither party saw fit to
set up the former decree as a bar to the action, the state court
was not bound to notice it. It did not affect in any way the
jurisdiction of that court. In addition to this, however, Campbell
relied upon a wholly different defense from that set up by him in
the former suit, and one which had accrued to him after the decree
in that court was rendered. Whether the decree, if properly
pleaded, would have operated as a bar it is unnecessary to
determine. As the same issues are presented here as were presented
in the state court, it is entirely clear that they cannot be
relitigated.
The judgment of the state court was conclusive upon these
issues, and the decree of the circuit court of appeals to that
effect was correct, and it is
Affirmed.
