Wickliffe v. Owings. 17 H.

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 whole of his [* 50 | 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 fulfil 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. and More, Stat. 294.

Wickliffe v. Owings. 17 H.

The jurisdiction of a court of chancery to grant perpetual injunc tions 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 interfer ence, 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 "pre[ * 51 ] tended 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 judg

[ocr errors]

Wickliffe v. Owings. 17 H.

ments, 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, *and [ 52 ] 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 subpœna 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 contro versies which he seeks by this bill to close.

[blocks in formation]

Raymond v. Tyson. 17 H.

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.

19 H. 393; 21 H. 202.

ISRAEL W. RAYMOND, Owner and Claimant of the Cargo of the Ship Orphan, consisting of 844 tons of coal, Appellant, v. WILLIAM TYSON, Libellant.

17 H. 53.

Under a charter-party for a voyage from London direct, or thence to Cardiff in Wales, to load for port or ports on the Pacific, where the vessel was to be employed between such ports as the charterers might elect, for the full term of fifteen months, with a privilege to the charterers to extend the time to twenty-four months, the hire being at the rate of $2,000 a month, payable in New York, semiannually; held, the owners had not a lien on the outward cargo from Cardiff to the Pacific, for the first six months' hire of the vessel, which became due at New York before the arrival of the vessel at the port of delivery in the Pacific.

THE material facts, and the substance of the charter party and bill of lading, are stated in the opinion of the court.

Lord, for the appellant.

Cutting, contrà.

[ "57 ]

WAYNE, J., delivered the opinion of the court.

This is an appeal from the district court for the northern district of California.

The suit was brought by a libel in the admiralty, against 844 tons of coal (of which Raymond was the claimant) on board the ship Orphan, of which Tyson, the libellant, was a part-owner. Its object was to enforce an alleged lien, on the coal claimed under a charterparty between Tyson and J. Howard and Son, of New York, charterers. The charter-party was made at New York, on the 1st February, 1850, the ship at that time being on her voyage to London. The whole ship, with the exception of the deck, cabin, and necessary room for the crew, and stowage of provisions, sails, and cables, was chartered by the owner to J. Howard and Son, for a voyage from London direct, or from thence to Cardiff, in Wales, (if required,) to load for a port or ports on the Pacific, where she was to be employed between such ports as the charterers might elect; thence to be returned back, either to New York or Great Britain, at their option. The time for her employment was to extend to the full term of fifteen months, with a privilege to the charterers to extend it to twenty-four months. The charterers engaged to

Raymond v. Tyson. 17 H.

'furnish the ship with a full cargo-bills of lading to be [58] signed for it without prejudice to the charter—and they contracted to pay to the owner of the ship or his agent, for the use of the vessel, at the rate of $2,000 per month, commencing in London, if she proceeds thence direct to the Pacific, when ready to load, and notice of the same was given to the charterers or their agent. But if the vessel shall be ordered to Cardiff to load, then the charter was to commence from the time she might be ballasted, and be ready for sea, in London. In that case, the ship is to be allowed ten days from the time she is ready to sail from London, until her arrival at . Cardiff, and only that time, for which the charterers were to pay, should the ship be a longer or shorter time in making the passage to Cardiff. It is agreed between the owner and the charterers that the charter should be payable in New York semiannually; the first payment to be made six months from the commencement of the same, and so every six months during the continuance of the charter, before the arrival of the ship and her being delivered back to the owner, in New York or Great Britain; or upon satisfactory proof of total loss of the ship, all moneys in arrears and due, up to the time of the loss, were to be paid on demand. Should the vessel be ordered to California, the charterers agree to pay the expense of victualling and manning her, attendant upon the California voyage, and the charter money for any detention caused, by desertion of the crew. The charterers agreed also to pay all port charges of the ship incident to her employment, except victualling, manning, and repairs, and to advance funds for the ordinary expenses of the ship after she left Europe, which were to be deducted from the charter payments on vouchers from the captain.

The ship sailed for Cardiff, on the 1st April, 1850, and arrived there on the 14th April. She there took on board from Branson, Sands, and Co., the agents of the charterers, a cargo of 844 tons of coal, the property of the charterers. For this cargo, a bill of lading was signed, May 4, 1850, at Cardiff, expressing that the ship was bound to Panama, for orders, to be delivered to order or assigns, he or they paying freight, as per charter-party. The bill of lading is as follows:

Bill of lading. Shipped in good order and condition, by Branson, Sands, and Co., of Liverpool, in and upon the good ship or vessel called The Orphan, whereof R. C. Williams is master for this present voyage, and now lying in the port of Cardiff, and bound for Panama for orders, eight hundred and forty-four tons of "Nixon's Merthyr and Cardiff steam coal," being marked and numbered as per margin, and are to

844 tons of "Nixon's Merthyr and Cardift steam coal."

« ForrigeFortsett »