which was allowed, but never docketed here. On the tenth of October, 1885, the court, after overruling certain exceptions to the master's report, entered a second and last decree, which was against the complainant, for $14,084.77. At the end of that decree was the following: "And the complainant prays an appeal from the foregoing decree, which appeal is by the court hereby allowed, and the penalty of the appeal-bond, if the same is to operate as a supersedeas, is fixed at — dollars, but if the same is not to operate as a supersedeas, then the penalty of the appeal-bond is fixed at dollars." The next term of this court thereafter began October 12, 1885, and the appeal was not docketed here during that term.

On the eighth of February, 1886, there was filed in the office of the clerk of the circuit court an order made by the district judge at his chambers, and after the term at which the decree was rendered, fixing the amount of the appeal-bond at $20,000, if for supersedeas, and at $2,000, if for costs only. On the eighth of March the complainant filed a motion to modify the amount of the appeal-bond. On the eighth of June, while this motion was pending, the complainant filed with the clerk of the circuit court an appeal-bond, dated March 1, 1886, in the penal sum of $25,000, which had been approved by the district judge as a supersedeas bond. On the second of October the motion to modify the amount of the appeal-bond was overruled by the court, "on the ground that the case was then in the supreme court of the United States." The case was docketed in this court October 15, 1886. It does not appear that any citation has ever been signed or served. This motion was made on the eighth of December, 1887, during the present term, to dismiss the case, "because each of said appeals became null and void when the return-term of this court passed without a transcript of the record being filed in this court and being docketed herein."

The first appeal taken in open court on the second of April, 1884, became inoperative by reason of the failure to docket the same in this court before the end of October term, 1884. Whether the decree from which that appeal was taken was a final decree, or interlocutory only, it is unnecessary now to consider. The appeal allowed in open court, October 10, 1885, also became inoperative, as it was not docketed here before the end of October term, 1885; and this, too, whether the bond approved by the district judge after the term was accepted to perfect that appeal or not. If an appeal at all, it was of the date of its allowance in open court, and to be kept in force it should have reached here before the end of the term to which it was made returnable. Grigsby v. Purcell, 99 U. S. 505, and cases there cited.

The acceptance of the bond by the district judge cannot be considered as the allowance of a new appeal at that date, because that was after the term at which the decree was rendered, and no citation was ever issued or served. Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. Rep. 319. The appearance of counsel for appellee at the present term on the making of this motion is not a waiver of the citation. It would have been different if there had been a general appearance at the last term, that being the term to which the appeal, if it had been properly taken, would have been returnable. U. S. v. Armejo, decided April 3, 1866, and reported in book 18, L. C. O. P. Co. Ed. U. S. Sup. Ct. Rep. 247. The motion to dismiss is granted.

(December 19, 1887.)


Where the value of the land in controversy was alleged by the principal defendant to be $4,000, in his sworn answer, and the court found it to be $5,000, defendants will not be allowed to present affidavits showing its value to be $7,000, in order to give the United States supreme court jurisdiction of the appeal, under act Cong. March 3, 1885, requiring the value to be over $5,000 for that purpose.

Appeal from the Circuit Court of the United States for the District of Oregon.

Henry H. Dumbleton, complainant, filed a bill against F. P. Talkington et al., to set aside a conveyance of lands made by him. Decree for complainant, and defendants appealed.

Frank V. Drake, for appellee. J. H. Mitchell, for appellants.

WAITE, C. J. This suit was brought on the tenth of April, 1886, by Henry M. Dumbleton, the appellee, to set aside a conveyance of lands made by him to F. P. Talkington, one of the appellants, on the twenty-third of February, 1885, in exchange for the interest of Talkington in a saloon, on the ground that the exchange was brought about and the conveyance obtained by the false and fraudulent representations of Talkington as to the value of his property. In his bill, Dumbleton alleged that the value of the land was $7,000, and that Talkington represented to him that the value of the property to be given in exchange therefor was of equal amount, or more. In his answer, which was filed May 14, 1886, Talkington denied that the land, "or complainant's interest therein, was on February 15, 1884, or at any time since has been, of the value of $7,000, or of any greater value than $4,000," and he averred that at the time of the exchange "the said saloon, stock in trade, and the good-will thereof was of the value of at least $4,000." Upon the issue thus presented testimony was taken by both parties; that for Dumbleton tending to prove that the value was $7,000, and that for Talkington that it was less than $4,000. A decree was entered November 8, 1886, finding that the value of the land "was and still is $5,000, and no more," and directing Talkington to reconvey on the payment to him of the sum of $812. From that decree Talkington, and his co-defendants, who claim under him, took this appeal, which Dumbleton moves to dismiss because the value of the matter in dispute does not exceed $5,000; that being the amount now required for our jurisdiction on appeals and writs of error from the supreme courts of the territories in cases like this. 23 St. 443, (Act March 3, 1885, c. 355.) To overcome the effect of the finding of the court upon the question of value, the appellants present here the affidavits of sundry persons tending to show that the actual value of the land at the time of the decree was sufficient for our jurisdiction, and they ask that these affidavits may be considered upon this motion.

Inasmuch as the appellants sought in the court below to establish as part of their defense the fact that the land was not worth $7,000, but only $4,000, and succeeded so far as to get the court to find that it did not exceed $5,000, we are not inclined to allow the same parties, for the purpose of establishing our jurisdiction, to show by affidavits that the answer of Talkington, the principal defendant, and sworn to by him, was erroneous in that particular, even if, under any circumstances, it would be permissible to show by affidavits that the value appearing in the record was not the true value, which we by no means adinit. In Zeigler v. Hopkins, 117 U. S. 683, 689, 6 Sup. Ct. Rep. 919, where affidavits were submitted, the finding of the court below as to value was not a material question in the case upon its merits, but was more in the nature of an inquiry for the purpose of determining whether an appeal should be allowed, as in Wilson v. Blair, 119 U. S. 387, 7 Sup. Ct. Rep. 230. Here, however, the value of the property was one of the questions in the case and necessarily involved in its determination.

As the value of the matter in dispute is, according to the finding of the court below, not more than $5,000, the motion to dismiss is granted.


(December 19, 1887.)


In an action of ejectment, the defendants claimed under a tax deed issued in 1874 to their grantor. It appeared, however, that, prior to that action, the plaintiff had brought an action to foreclose a mortgage executed in 1870 on the land in controversy, making defendants' grantor a party thereto, and had obtained a decree declaring the lien of the mortgage prior and paramount to the lien of the tax deed, and of each and every of the other defendants therein. Held, that the decree was a conclusive adjudication which could not be impeached collaterally by defendants' grantor, or those claiming under him, and which estopped them from setting up the tax title in the present action.

In Error to the Circuit Court of the United States for the Southern District of Iowa.

This was an action at law, in the nature of ejectment, to recover possession of a tract of land, brought on July 5, 1883, in the circuit court of the United States for the Northern district of Iowa, against Hefner and wife and Babcock and wife, by the Northwestern Mutual Life Insurance Company, stating its title, in substance, as follows: On October 31, 1876, it filed a bill on the equity side of that court against Bates, Callanan, and others, to foreclose a mortgage of the same and other lands, executed to the plaintiff on August 23, 1870, by Bates, then the owner; containing the usual allegations of such a bill; also alleging that Callanan "claims some interest in and to a portion of the mortgaged premises, the exact nature of which your orator is unable to set out;" and praying that each and all of said defendants be made parties to the bill, and for a writ of subpoena against all of them, and for judgment against Bates for the sums due on the mortgage, and for "a decree of foreclosure against the premises herein before described against all of the before-named defendants, and that the right, title, and interest of each and every of the said defendants be by decree of this court forever barred and foreclosed; and that the master in chancery of this court be authorized to make sale of said premises, or sufficient thereof to satisfy the said several sums of money, with interest thereon, and the costs of this suit, and all and singular such relief as your orator is equitably entitled to receive." Upon that bill, a writ of subpœna was issued against and served upon all the defendants named therein, including Callanan.

On May 21, 1877, a final decree was entered in that suit, reciting a hearing of the plaintiff and of Bates, and a default of the other defendants, confirming that default, ascertaining the sums due on the mortgage, and adjudging that the mortgage "is a lien upon the mortgaged premises, prior and paramount to the lien of each and every of the said defendants;" that Bates pay those sums, with interest and costs, to the plaintiff on or before September 1, 1877; that, in default of such payment, a sale and conveyance of the mortgaged premises, or of so much thereof as might be necessary to satisfy those sums, be made by a master; "and that the right, title, and equity of redemption of each and every of the defendants in this suit be, by a sale of the said mortgaged premises hereunder, forever barred and foreclosed, and the purchaser at such sale shall take the premises sold by title absolute, and such title shall relate back to the date of the execution of the mortgage to the complainant, to-wit, the twenty-third day of August, 1870." On October 5, 1877, pursuant to that decree, the master sold the mortgaged premises by auction for less than those sums to the plaintiff, and executed a deed thereof accordingly.

In the present action the plaintiff further alleged that the defendants, IIefner and others, were in actual possession, claiming a right acquired from Callanan since the beginning of the suit for foreclosure, and had no right to possession against the plaintiff, and that Callanan claimed some interest in v.8s.c.-22

the premises under and by virtue of a pretended tax deed. The defendants filed an answer to this action, alleging that, the land in question being subject to taxes lawfully assessed thereon for 1870 and remaining due and unpaid, the county treasurer, at a tax sale on November 15, 1871, in conformity with law, sold the land to Callanan, and, there being no redemption from the sale, executed to Callanan on December 1, 1874, a tax deed thereof, which was duly recorded two days after, and a copy of which was annexed to the answer; and that the right and title created by the tax sale and deed, and no other, was owned by Callanan at the time of the proceedings for foreclosure and of the decree therein, and had since been conveyed by him to the defendants. A demurrer to this answer was sustained, and judgment rendered for the plaintiff; and the defendants sued out this writ of error.

C. H. Gatch and William Connor, for plaintiffs in error. B. F. Kauffman, for defendant in error.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.

The question presented by the record is whether the title now set up by the defendants, under the deed executed by the county treasurer to Callanan in 1874, pursuant to a sale in 1871 for non-payment of taxes assessed in 1870, is barred by the decree rendered for the plaintiff in 1877, upon a bill in equity to foreclose a mortgage dated August 23, 1870, to which bill Callanan had been made a party, and upon which he had been defaulted. By the statutes of Iowa, taxes upon real estate are assessed to the owner in September of each year. In real estate mortgaged, the mortgagor retains the legal title; and it is listed by and taxed to him, unless it is listed by the mortgagee. As between vendor and purchaser, the taxes become a lien on the land on the first day of November ensuing. If the owner neglects to pay them before the first day of the following February, they may be collected by distress and sale of his personal property, and also become a perpetual lien on the land against all persons except the United States and the state. The county treasurer may collect them by sale of the land, and, if the owner does not redeem from that sale within three years, the treasurer executes a deed to the purchaser, which vests in him "all the title of the former owner, as well as of the state and county." Rev. St. Iowa, 1860, §§ 710, 714, 734, 746, 756, 759, 763-784, 2217; St. May 27, 1861, c. 24, § 2; April 7, 1862, c. 110; Code 1873, §§ 796,803, 823, 839, 853, 857, 865, 871-897, 1938. The effect of these statutes, as declared by the supreme court of the state, is that, from the time of the assessment of the taxes, the state or the county has a lien on the land for the amount thereof; that upon the sale of the land for non-payment of the taxes, that lien passes to the purchaser, but the title, subject to the lien, remains in the former owner until the execution of the tax deed; and that, if that deed is for any reason invalid, the lien is the only interest that the purchaser has in the land. Williams v. Heath, 22 Iowa, 519; Eldridge v. Kuehl, 27 Iowa, 160; Everett v. Beebe, 37 Iowa, 452; Sexton v. Henderson, 45 Iowa, 160; Springer v. Bartle, 46 Iowa, 688. But if the tax deed is valid, then, from the time of its delivery, it clothes the purchaser, not merely with the title of the person who had been assessed for the taxes, and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and incumbrances of private persons, and all equities arising out of them. Crum v. Cotting, 22 Iowa, 411; Turner v. Smith, 14 Wall. 553.

It is contended in behalf of the defendants that the only proper object of the suit to foreclose the mortgage was to sell the title of the mortgagor, and to cut off the equity of redemption of all persons claiming under him any title, lien, or interest inferior or subject to the mortgage; and that the title under the tax deed, being adverse and paramount to the rights both of the mortgagor

and of the mortgagee, could not be contested in that suit, and was not barred by the decree therein. But the authorities cited fall short of supporting that contention. Multifariousness as to subjects or parties, within the jurisdiction of a court of equity, cannot be taken advantage of by a defendant, except by demurrer, plea, or answer to the bill, although the court in its discretion may take the objection at the hearing, or on appeal, and order the bill to be amended or dismissed. Oliver v. Piatt, 3 How. 333, 412; Nelson v. Hill, 5 How. 127, 132. A fortiori, it does not render a decree void, so that it can be treated as a nullity in a collateral action.

As a general rule, a court of equity, in a suit to foreclose a mortgage, will not undertake to determine the validity of a title prior to the mortgage, and adverse to both mortgagor and mortgagee; because such a controversy is independent of the controversy between the mortgagor and the mortgagee as to the foreclosure or redemption of the mortgage, and to join the two controversies in one bill would make it multifarious. Upon that ground, it has been held by this court, as well as by the courts of New York, California, and Michigan, on appeals from decrees for foreclosure of mortgages, that the holders of a prior adverse title were not proper parties; and judges have sometimes used such strong expressions as that the mortgagee "cannot make them parties," or that their title "cannot be litigated," in a suit for foreclosure. Dial v. Reynolds, 96 U. S. 340; Peters v. Bowman, 98 U. S. 56, 60; Insurance Co. v. Lent, 1 Edw. Ch. 301, 6 Paige, 635; Banks v. Walker, 2 Sandf. Ch. 344, 3 Barb. Ch. 438; Corning v. Smith, 6 N. Y. 82; San Francisco v. Lawton, 18 Cal. 465; Summers v. Bromley, 28 Mich. 125. But in none of the cases just cited was any question presented or adjudged of the effect that a decree of foreclosure, rendered in a suit in which such adverse claimants were made parties and their claims were directly put in issue and determined, might have against them in a subsequent action.

The cases of Strobe v. Downer, 13 Wis. 11, and Palmer v. Yager, 20 Wis. 97, were also appeals from decrees of foreclosure; and in a later case in Wisconsin the court summed up the law thus: "It is freely admitted that a foreclosure suit is not an appropriate proceeding in which to litigate the rights of a party claiming title to the mortgaged premises in hostility to the mortgagor, and that, if such rights be so litigated, and be determined upon pleadings and proofs, the decree will be erroneous, and will be reversed. But whether, until reversed, such decree is coram non judice and void, so that it may be collaterally impeached, is quite another question. The conclusion would seem to follow, from all of the decisions, that it is not." Board Sup`rs v. Railroad, 24 Wis. 93, 121.

There are, indeed, two cases in the court of appeals of New York, in which a common decree of foreclosure pro confesso was held to be no bar to a subsequent action at law by the owner of a title prior and paramount to the mortgage. But the decision in either case turned on the form in which the plaintiff at law had been made a defendant to the bill of foreclosure. In the one case, a widow was held not to be barred of her dower by a decree of foreclosure, obtained after the death of her husband, of a mortgage executed by him alone during the coverture, on a bill against her and others as executors and devisees under his will, alleging that she and the other defendants "have or claim to have some interest in the aforesaid mortgaged premises, as subsequent purchasers or incumbrancers, or otherwise; but what particular interest your orator is not informed;" and praying that they might be foreclosed "of and from all equity of redemption and claim of, in, and to" the mortgaged premises. The ground of the decision was that, under the statutes and rules of court, the allegations and decree were limited to rights subsequent and subject to the mortgage; and Judge DENIO, in delivering judgment, said: "It is not intended to decide that, if a party claiming a title prior to the mortgage should be made a party to the suit, and should answer and litigate the

« ForrigeFortsett »