Where a bill in chancery avers that the defendant is a citizen
of another state, this averment can only be impugned in a special
plea to the jurisdiction of the court. The answer is not the proper
place for it under the 33d rule of equity practice established by
this Court.
The plea of the defendant that he had instituted a suit against
the complainant in a state court in the same controversy prior to
the institution of this one in the circuit court of the United
States is not sustained by the evidence, nor is the allegation that
the title of the complainant is invalid.
Upon a bill filed under a statute of Kentucky by a person having
both the legal title to and the possession of land against a person
setting up a claim thereto for the purpose of quieting the title,
this Court decides that the complainant is entitled to relief, and
proceeds to render such decree as the circuit court ought to have
rendered.
This was a bill filed by Wickliffe under a statute of Kentucky
to quiet the title to sundry tracts of land of which the
complainant was in possession and to which he alleged that he had
the legal title. Owings, it was averred, had removed to Texas and
become a citizen of that state, but had visited Kentucky and set up
a claim to the lands, threatening to institute suits against the
complainant.
Owings, in his answer, denied the jurisdiction of the court upon
the ground that he was not a citizen of Texas, denied that the
complainant had any title to the land, or that if he had one,
asserted that it was obtained by fraud, and alleged that prior to
the institution of this suit, he himself had filed a bill against
Wickliffe in the Bath Circuit Court of Kentucky, and relied on the
priority of his bill in bar of Wickliffe's suit.
The district judge who tried the cause in the court below
dismissed the bill, from which decree Wickliffe appealed to this
Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The plaintiff filed his bill in the Circuit Court of the
United
Page 58 U. S. 48
States for Kentucky against Thomas Deye Owings, by which he
assumes to be the owner and in the lawful possession of a number of
tracts of land lying in different counties of that state which had
at one time been the property of the defendant, but of which he had
been legally divested, and notwithstanding claims by the
instigation and advice of other persons to the prejudice and
vexation of the plaintiff. The object of the bill is to establish
the title and to quiet the possession of the plaintiff.
The facts disclosed by the record are that in the years 1817 and
1818, the defendant was possessed of a very large estate in lands,
but was indebted beyond his means of payment. During those years,
two of his creditors, Luke Tiernan and Samuel Smith, respectively,
recovered, in the Circuit Court of the United States for Kentucky,
judgments for the aggregate sum of twenty-five thousand dollars and
upwards, the one by default the other by confession. Immediately
thereafter, the defendant adopted a system of legal proceedings to
postpone the day of payment of those judgments, which terminated in
the augmentation of the debt and the introduction of other persons,
in the character of sureties, to share in the entanglements of the
debtor. By the interposition of injunctions, replevin, and stay
bonds, and for the want of bidders at execution sales, the
defendant withstood his creditors until 1824.
In November, 1824, Tiernan purchased a number of the tracts in
dispute, and others in 1827 and 1834, under the executions, and for
which he has the deeds of the marshal.
In 1820, Samuel Smith assigned his judgment to Ellicott and
Meredith, in trust for creditors, and these persons, between 1826
and 1829, purchased nearly, if not all, of the tracts for which
Tiernan had acquired a title.
In 1824, before any of these sales, Owings had conveyed the
lands to the sureties whom he had involved upon the bonds before
referred to in these and other cases, for their indemnity, and
delivered to them the possession of the property, and ceased to
have any control of it. He gave to them authority to "sell, dispose
of, and convey any of the estate, whenever it might be necessary
for their protection," and in such cases as a majority of them
might consider as most beneficial to all concerned in case their
principal was in default. Tiernan and Meredith and Ellicott, in
1827, commenced suits for various parcels of the lands they had
purchased at the marshal's sales in the circuit court of the United
States, and recovered judgments. The questions involved in the
issues appear to be the regularity of the sales by which they
acquired title. In 1829, after a portion of these trials, the
sureties and assignees of Owings executed a deed to Ellicott and
Meredith for the tracts of land described in
Page 58 U. S. 49
the bill upon "a general compromise" with them by which the debt
to Samuel Smith, with the various bonds taken to secure it, were
surrendered to be cancelled. The record shows that Owings was
advised of this settlement and expressed approbation of it.
Sometime after this settlement with the assignees of Owings, an
arrangement was concluded between Tiernan, Ellicott, and Meredith
and the Bank of the United States by which the bank agreed to
reimburse Tiernan for his debt and advances and to cancel an
indebtedness of Smith and to take the title to the property they
had acquired by these proceedings. This arrangement was carried
into effect by a suit in the circuit Court of the United States in
which a sale was ordered, at which, in 1834 and 1835, the bank
became the purchaser.
In 1836, the bank sold its title to the plaintiff in this suit.
In order to free the title from any imperfections, a bill was filed
in the Circuit Court of Bath County, Kentucky, and in that suit the
titles of Tiernan, Ellicott, and Meredith and the bank were, in
1848, conveyed to him.
In the course of these proceedings, a number of confirmatory
deeds were taken from purchasers of portions of the property at the
marshal's sales, which it is unimportant to describe. To appreciate
fully the case of the plaintiff, it is proper to notice a
transaction between him and Mr. Bascom, the son-in-law and attorney
in fact of Owings, in 1837. The plaintiff, after the acquisition of
his titles from the bank, instituted suits for the recovery of the
family residence and other lands of the defendant in the courts of
Kentucky. At the trial term of these suits, a proposal for an
adjustment was submitted to the plaintiff by Mr. Bascom under the
advice of counsel which was accepted by him. He agreed to convey to
Mrs. Bascom the family residence and other lots, a balance due on
the judgment of Tiernan, to release the claim for mesne profits,
and to dismiss the suits pending, each party to pay costs. Owings
and Bascom were to confirm the title acquired by the plaintiff to
the lands described in the bill. This settlement was executed by
the delivery of the proper evidences of title. Those in the name of
Owings were executed by Bascom, as his attorney in fact.
The land conveyed to Mrs. Bascom has remained in the family till
this time, and in 1847 was divided among the children of Owings in
a suit to which he was a party. The validity of the conveyance of
Wickliffe to her was asserted in that suit and admitted in the
decree of the court as the basis upon which it was founded. Owings,
in 1836 or 1837, left the United States for Texas; during the
interval, from 1837 to 1849, the plaintiff was in the open
possession of the property. Before the departure of Owings, the
plaintiff had offered to reconvey to him the
Page 58 U. S. 50
whole of his purchases upon an extended credit and a reduced
rate of interest for the consideration of the debts and costs they
represented, which proposal Owings acknowledged his inability to
accept and fulfill the obligations he would thus incur. In 1849 he
was induced to return to the United States and to renew the
controversy which had been so long pending by the assertion of
pretensions hostile to the title of the plaintiff and prejudicial
to his useful and peaceful enjoyment.
The evidence shows that the lands are in the possession of the
plaintiff, occupied by a numerous body of tenantry; that sales have
been obstructed and rents diminished by the assertion of these
claims.
The right of the plaintiff to relief is rested upon the general
principles of equity as well as a statute of Kentucky to the
effect
"That any person having both the legal title to, and the
possession of land, may institute a suit against any other person
setting up a claim thereto, and if the complainant shall establish
his title the defendant shall be decreed to release his claim."
1 Bro. & More, Stat. 294.
The jurisdiction of a court of chancery to grant perpetual
injunctions for quieting inheritances, after the right and matter
in question has been fairly settled by concurring verdicts, has
been long established, and in addition to this general ground for
equitable interference, this case presents a strong claim for the
interposition of the court arising from the settlement between
Bascom, as the attorney in fact of the defendant, and the
plaintiff. The consideration of that settlement has been enjoyed
for many years by the family of Owings. We conclude that this
arrangement, embracing the fact that a confirmatory deed to the
plaintiff had been executed in his name, under the letter of
attorney to Bascom, was communicated to him and that it received
his approbation. If additional assurances were therefore required
to perfect the title of the plaintiff and to maintain his quiet
enjoyment, it is the duty of the court to exact them.
But if a question might arise upon the facts of this case upon
this branch of it, there will be none when we connect it with the
statute of Kentucky:
"When the nature of our conflicting titles," says the supreme
court of that state,
"whether derived from the laws of Virginia or of this state are
considered, there is an apparent necessity of permitting the holder
of the legal estate to call his adversary to the test when it
cannot be otherwise reached. This act ought to be liberally
expounded as a remedial statute."
Cates v. Loftus, 4 Mon. 439.
And in accordance with this view, that court decreed a release
to one having the legal title and possession from one who
"pretended
Page 58 U. S. 51
a claim under a vague and void entry, without equity." 1 Mon.
97.
And in another case where the party in possession with title
averred "that the defendants pretended to have a claim upon it, and
thereby disparaged his title, and obstructed him in the full
enjoyment of his property."
Armitage v. Wickliffe, 12
B.Mon. 488.
This statute is too important a portion of the law of property
in Kentucky to be disregarded in the exercise of the equitable
powers of the courts of the United States in that state, and
without affirming that it can be so fully applied under the
constitution of those courts as by the state tribunals, we are
satisfied that its protection may be properly invoked in cases like
the present.
Clark v.
Smith, 13 Pet. 195. The statement of the
plaintiff's title shows that the lands described in his bill were
sold as the property of the defendant by a public officer with
legal process issued upon valid judgments, and that the title of
the purchasers have vested in him; that this title has been
submitted to a court of law and maintained in a succession of
trials; that besides, the sureties who were bound for these
judgments and to whom the lands were delivered by the defendant for
their indemnity, with powers to use them for that purpose, have
transferred them, to relieve themselves and their principal, to the
grantors of the plaintiff; that in addition, the son-in-law, agent,
and attorney of the defendant, to preserve a portion of his estate
for his family, has confirmed in his name the title of the
plaintiff, as we are bound to believe, with the knowledge and
acquiescence of his principal, and that family still retains the
consideration of this deed; finally, that the plaintiff, and those
whose title he has has been in possession since 1824.
The defendant resists the suit of the plaintiff for relief by a
denial in his answer of the averment that he is a citizen of Texas,
and consequently the jurisdiction of the court. 2. By the plea that
before this suit was commenced he had instituted one in the Circuit
Court of Bath, Kentucky, contesting the plaintiff's title and
provoking a full investigation into its validity, and that he could
not be restrained from its prosecution there. 3. That the sales by
the marshal were invalid, and that the conveyance executed by
Bascom in his name to the plaintiff is void for misrepresentation,
fraud, and the want of consideration.
The doctrine of this Court is settled that when the jurisdiction
of the circuit court appears by proper averments on the record, the
defendant can only impugn it in a special plea. The 39th rule of
practice for courts of equity in the United States, adopted by this
Court, excludes "matters of abatement, objections to the character
of parties and to matters of form," from the answer
Page 58 U. S. 52
and confines its operation to "matters in bar or to the merits
of the bill." It is proper to say that if the fact of citizenship
was open to inquiry, the evidence sustains the allegation of the
bill.
2. Whether we consider the commencement of the suit as dependent
upon the filing of the bill with the clerk of the court or the
issue, service, or return of process upon it, there is no sanction
in the evidence for the plea by the defendant of a prior suit
pending in the Circuit Court of Bath County. The plaintiff's bill
was filed and process issued before that of the defendant was
entered, and the process from the court of the United States was
executed more than a year before the service of a subpoena to
answer on the plaintiff. Nor are the imputations of fraud,
oppression, and injustice upon the conduct of the plaintiff, nor
the charges that he acquired his titles by corrupt and champertous
contracts, better supported. No evidence has been taken which
authorizes the crimination of the plaintiff by such allegations in
any part of the complicated and involved controversies which he
seeks by this bill to close.
Our conclusion is that the plaintiff is entitled to the relief
he asks for, and that the decree of the circuit court must be
Reversed, and a decree entered here conformable to this
opinion.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky, and was argued by counsel. On consideration whereof, it
is now here ordered, adjudged, and decreed by this Court that the
decree of the said circuit court in this cause be, and the same is
hereby reversed and annulled.
And this Court, proceeding to render such decree as the said
circuit court ought to have rendered, doth order, adjudge, and
decree that the complainant has shown a legal title to all those
tracts or parcels of land which are described and set forth in the
two deeds in the record, executed by Owings and Bascom, dated 6
April, 1837, and marked No. 54, and by A. Trombo, commissioner,
dated 25th day of September, 1848, and marked No. 58, in both of
which the said complainant is the grantee, but excepting from this
decree the lands which were conveyed to Mary N. Bascomb, by the
said complainant, the 6th April, 1837, and as to which this decree
has no application.
And it is further ordered, adjudged, and decreed by this Court
that the said complainant has shown sufficient matter of equity to
entitle him to a release by Thomas D. Owings or his heirs at law or
devisees or other legal representatives of all their claim, and to
be quieted in the possession and enjoyment of the said parcels of
land.
Page 58 U. S. 53
And it is further ordered, adjudged, and decreed that the said
complainant do recover his costs in this cause in this Court of and
from the said defendant.
It is therefore further ordered, adjudged, and decreed by this
Court that this cause be and the same is hereby remanded to the
said circuit court with instructions to cause an appropriate deed
of release and quitclaim to be prepared and executed by the said
defendant or his heirs at law or devisees or other legal
representatives of their rights as aforesaid, and also that the
said court issue an injunction to them commanding their agents, and
attorneys, aiders and abettors to refrain perpetually, from any
molestation or disturbance of the right and possession of the said
complainant under any title of the said Thomas D. Owings, and that
the said circuit court do execute and carry into effect all the
provisions of the aforesaid decree of this Court.