Albert v. Bascom

• Decision Date: 14 June 1917
• Docket Number: 279.
• Citation: 245 F. 149
• Parties: ALBERT et al. v. BASCOM et al.
• Court: U.S. District Court — Western District of Texas

245 F. 149

ALBERT et al. v. BASCOM et al.

No. 279.

United States District Court, W.D. Texas, Austin Division.

June 14, 1917

V. L Brooks, of Austin, Tex., for plaintiffs.

Fiset McClendon & Shelley, of Austin, Tex., for defendants.

WEST District Judge.

The defendants, limiting their appearance solely to contesting jurisdiction, move to dismiss the bill upon grounds specified:

I. That none of the defendants are residents or citizens of the state of Texas, but are residents and citizens of the state of Kentucky.

II. That the action is not to enforce any legal or equitable lien upon or claim to real or personal property within the Western district of Texas.

Concerning objections I and II:

Jurisdiction may obtain, though none of the defendants are residents and citizens of the state of Texas. Diversity of citizenship alone would not suffice where neither plaintiffs nor defendants were residents or citizens of the state of the forum. In re Wisner, 203 U.S. 449, 27 Sup.Ct. 150 51 L.Ed. 264; Foulk v. Gray (C.C.) 120 F. 156. But plaintiffs are asserting a lien upon certain real property situated within this judicial district, thus seeking to bring the action within the provisions of section 57 of the Judicial Code, formerly section 8 of Act March 3, 1875, c 137, 18 Stat. 472. Neither plaintiffs nor defendants are residents or citizens of the state of Texas. The plaintiffs are residents and citizens of the states of Maryland and Idaho, the defendants of the state of Kentucky; the situs of the rem being within this Western Judicial District of the state of Texas.

A suit to establish a lien upon or claim to property under section 57 of the Judicial Code may be maintained in the district of the state where the property is situated, though neither plaintiff nor defendant is a resident thereof. Kentucky Coal L. Co. v. Mineral Devel. Co., 219 F. 45; Gillespie v. Pocahontas C. & C. Co. (C.C.) 162 F. 742; Goodman v. Niblack, 102 U.S. 556, 26 L.Ed. 229. So far as objections I and II are concerned, jurisdiction depends on whether or not the action is one to establish a lien upon the land in question.

Allegations of Plaintiffs' Original Bill.

The plaintiffs, styling themselves creditors, file suit December 8, 1910, against the two Bascoms individually and as joint executors of the estate of S. Clarke Bascom, who died October 17, 1909. Plaintiffs' rights originate by the terms of the will of their mother in 1883. The estate consisted of lands situate in the states of Kentucky and Texas, held in common prior to the death of testatrix, one-fourth each to (1) Mary C. Albert, plaintiffs' mother, (2) S. Clarke Bascom, (3) Alpheus W. Bascom, (4) John R. Bascom, brothers of testatrix, residents of Kentucky. By the terms of the will the one-fourth share or interest in the common estate passed to plaintiffs, then minors, to be held in trust by S. Clarke Bascom until plaintiff Fannie Pleasants reached the age of 21. The trustee was given full power to lease, sell, and convey, to invest and reinvest, holding proceeds subject to the trust. The plaintiff Fannie reached the age of 21 in 1898. No report or accounting of any character is alleged to have been made by the trustee, S. Clarke Bascom, up to the date of his death in October, 1909. His will was probated in the Bath county court, Ky., December, 1909. By its terms all his interest in the common property passed to his brothers, Alpheus and John R., who were named his executors, subject, as alleged by plaintiffs, 'to whatever claim they might have against same.'

Plaintiffs allege that:

'Upon careful inquiry they are advised, and so charge, that the value of the personal property belonging to the estate of S. Clarke Bascom is inadequate to satisfy their claim, and that there is no personal property of said estate within the jurisdiction of this court belonging to said estate.'

Three tracts are described as being in the state of Texas, and alleged to be a part of the original common holding in proportions as hereinbefore set out. The undivided one-fourth part theretofore owned and held by S. Clarke Bascom was by his will devised to the said Alpheus W. and John R. Bascom. The one-fourth part of these three tracts of land were conveyed by plaintiffs and defendants by deeds called partition deeds to the defendants Alpheus W. and John R. Bascom, and contemporaneous therewith, on November 23, 1909, plaintiffs and defendants entered into an agreement in writing (Plaintiffs' Exhibit No. 3), plaintiffs alleging:

'That the legal and equitable effect of said agreement is to give the claimants herein a lien against the interests of the devisees of the late S. Clarke Bascom in the aforesaid tracts, * * * with the right to enforce the sale thereof for the purpose of satisfying their claim.'

A careful inspection of Plaintiffs' Exhibit No. 3, being the agreement referred to, does not bear out their claim that a lien was thereby fixed upon the interest in the tracts conveyed with the right to enforce same by sale. The agreement in effect merely negatives any intention on part of the plaintiffs by the execution of the said partition deeds to waive any rights or claims against the estate of S. Clarke Bascom as follows:

'And do not waive any rights that they have, if any, to subject nay of the property conveyed by the above-mentioned partition deeds; * * * that whatever rights they have or ever had to require payment and collection of any such trust funds or property are as well preserved since the execution of said partition deeds as they were before.'

No claim of damage or dereliction is alleged against Alpheus W. and John R. Bascom as individual defendants, nor any claim of damage or dereliction against them as executors of the estate of S. Clarke Bascom, other than as being the successors as heirs, devisees, and executors holding right, title, and possession of the tracts of land upon which lien is asserted as general creditors. The prayer is that S. Clarke Bascom's interest in the Texas lands be seized by a receiver of this court, whose appointment is also prayed for, and same sold to pay plaintiffs' claim and those of other creditors who may unite with them. Service by publication on the defendants named is prayed for. The court is without power to enforce a personal judgment upon citation by publication. The action is based upon the assertion of a right to enforce a lien on specific property within the district. All material allegations of the bill bearing upon the question have been carefully stated and considered.

A vital question is whether or not the action is in rem. The bill does not definitely assert any right of lien upon the S. Clarke Bascom interest in the Texas lands, except through the terms of the agreement between parties plaintiff and defendant known as Plaintiffs' Exhibit No. 3. This instrument, as already noted, wholly fails to fix or declare any lien upon any specific property, leaving the parties to such rights as they were in law entitled independent of the agreement. If plaintiffs are relying upon some statutory or implied legal or equitable lien, the bill fails to make any affirmative allegation or prayer to that effect. Only such may be considered.

Plaintiffs' claim of jurisdiction as being an action in rem for the enforcement of a contract lien upon specific property with prayer for foreclosure could at this state very properly be denied, since the agreement exhibited wholly fails in the legal effect claimed by plaintiffs. It does appear, however, from the bill that, independent of obligations imposed on S. Clarke Bascom, deceased, as trustee, the relation of cotenancy as to the lands sought to be subject to lien has existed between plaintiffs and defendants and their privies since 1883. It also appears that the bill is brought by plaintiffs as general creditors of the estate of S. Clarke Bascom, and the question arises whether, as cotenant creditor or general creditor, plaintiffs are by law given a specific lien upon specific property.

Plaintiffs are not seeking recovery of S. Clarke Bascom's estate because of any default of obligation on his part as cotenant. In the casting of accounts sought no claim of indebtedness or damage to them is alleged against him as cotenant. Without pleading to support such a claim, even though pressed in argument, it must be disregarded as an element affecting the jurisdiction of the court. The gist of complainants' bill is for recovery against their trustee for failure to account for moneys received by him from sales, leases, rentals, incomes, etc., all arising out of the trust relation; the assertion of a lien as existing against certain lands of his estate in Texas; for possession, appointment of receiver, and foreclosure.

In partition, which is not sought here, the law is that equities which may be adjusted and enforced in a suit for partition are such only as arise out of the relation of the parties to the common property; ordinary instances of the equitable lien thus arising are where one tenant in common has discharged incumbrances, paid taxes, purchased claims, and paid part of purchase price. Freeman, Cotenancy and Partition, Secs. 506 and 512; Niday v. Cochran, 42...