Brun v. Mann

• Decision Date: 07 November 1906
• Docket Number: 2,306.
• Parties: BRUN et al. v. MANN.
• Court: U.S. Court of Appeals — Eighth Circuit

151 F. 145

BRUN et al. v. MANN.

No. 2,306.

United States Court of Appeals, Eighth Circuit.

November 7, 1906

[Copyrighted Material Omitted]

On October 11, 1901, the complainant, Mann, exhibited his bill in the court below against Kate E. Brun, the widow and the administratrix with the will annexed of the estate of Tillett, and against Kate E. Brun, and Jessie Wakeman legatees under Tillett's will, to subject two tracts of land one of which had been patented to Tillett in 1892 under the timber culture laws of the United States (U.S. Comp. St. 1901, pp. 1534, 1535; Act June 14, 1878, c. 190, Sec. 4, 20 Stat. 113, 114) and had been devised by him to Jessie Wakeman, and the other of which had been patented to Tillett in December, 1892, under the homestead laws of the United States (2 U.S.Comp.St. 1901, p. 1398, Sec. 2296; Act May 20 1862, c. 75, Sec. 4, 12 Stat. 393) and had been devised by him to Kate E. Brun, to the payment of a judgment which had been rendered in favor of the complainant and against the administratrix and the estate of Tillett in the court below for $19,718.56 on April 1, 1899. The defendants challenged the right of the complainant to the relief he sought by demurrers and by answers, and the defendant Brun sought affirmative relief by a cross-bill. But the court granted a decree for the sale of the land to satisfy the judgment, and refused relief to the defendants. This decree is questioned by the appeal.

The jurisdiction of the court below to entertain the suit, its jurisdiction to order a sale of the real estate pending administration in the county court of the state, the equity of the bill, and the refusal of the court to grant affirmative relief to Brun, are challenged by the assignments of error. An acquaintance with the essential facts which condition the issues thus presented is indispensable to a correct understanding of their discussion and decision. On January 3, 1885, Mann, who was then a resident and citizen of the state of Nevada, recovered a judgment against Tillet, a citizen and resident of Colorado, and against one Bloomfield, in the court below for $30,591, for carrying away and converting the cattle of the plaintiff to the defendants' use. On September 13, 1892, in consideration of a conveyance of a piece of prairie land worth about $1,700, made by Bloomfield, Mann satisfied one half of the judgment and released Bloomfield from all liability on account of the judgment, but expressly reserved his claim against Tillett for the payment of the other half. In the latter part of 1892 the two tracts of land in controversy were patented to Tillett. On March 18, 1896, Tillett died testate, but left no property except the lands in controversy and a small amount of money which was exhausted in the payment of the expenses of his last sickness and of his funeral. His will was proved in the county court of Prowers county, in the state of Colorado, which, under the laws of that state, had jurisdiction of the probate of wills and of the administration of estates, and one Thompson, the executor, qualified as such; but he died on April 29, 1897, and Kate E. Tillett, the widow, who subsequently by marriage became Kate E. Brun, was appointed and qualified as administratrix with the will annexed. On January 24, 1897, Mann filed in the county court his claim against the estate of Tillett for the amount of his judgment and interest. Kate E. Tillett shortly after her appointment as administratrix exhibited her bill in the court below to procure a decree of discharge and satisfaction of Mann's judgment, and he filed a cross-bill in that suit, wherein he prayed for a revivor of his judgment. That suit resulted in a decree rendered about April, 1899, to the effect that Mann's judgment was revived against the administratrix and against the estate of Tillett for the sum of $19,718.56 to be paid in due course of administration, and that a copy of the decree should be certified to the county court of Prowers county for allowance, classification, and payment. The administratrix appealed, and this decree was affirmed by this court on October 15, 1900. Tillett v. Mann, 43 C.C.A. 617, 104 F. 421. In April, 1899, the claim of Mann for this $19,718.56, based on the judgment of revivor, was filed in and allowed by the county court of Prowers county as a claim against the estate. No other claim was presented or allowed, and the administratrix presented no petition and took no action to apply the lands of the estate to the payment of Mann's claim. Thereupon, on September 21, 1901, he made a written demand of her as administratrix that she should file a petition in court and proceed to secure a sale of the land to pay his claim, and she refused to do so. Mann then, on October 11, 1901, exhibited his bill in the court below and commenced this suit. At the time of its commencement Kate E. Brun had made no claim for expenses of administration or for a widow's allowance, although Tillett had been dead for more than five years and she had been administratrix more than four years, and the only claim against the estate in the county court was that of the complainant. After the suit was commenced, and on October 3, 1902, Kate E. Brun resigned as administratrix and the county court allowed her $1,128.60, for her expenses as such. In November, 1902, she applied to the county court for the appointment of appraisers to estimate and set-off to her a widow's allowance. The court appointed such appraisers, who, without notice to Mann, reported her allowance to be $2,085. She then gave notice to Mann that she intended to apply to the county court for an approval of that allowance, and the court below, upon application, enjoined her from proceeding further upon that course. In June, 1903, she made application to the court below for leave to file a supplemental cross-bill, in which she set forth her claim to a widow's allowance and a claim for an allowance for expenses and services as administratrix, and the court denied her application. A final hearing was had in this suit, and on May 9, 1905, the final decree was rendered.

A. C. Phelps, for appellants.

R. T. McNeal (E. T. Wells, on the brief), for appellee.

Before SANBORN and VAN DEVANTER, Circuit AN DEVANTER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge, after stating the case as above, .

The real controversy between the parties to this suit is whether or not the lands patented to Tillett in 1892 are exempt from liability to pay the judgment in favor of Mann, which is founded on Tillett's wrongful taking and conversion of the plaintiff's cattle in 1881. The acts of Congress under which Tillett secured the lands provide that no land acquired thereunder shall be liable for the satisfaction of any 'debt contracted prior to the issuance' in the one case of the patent (2 U.S.Comp.St. 1901, p. 1398, Sec. 2296; Act May 20, 1862, c. 75, Sec. 4, 12 Stat. 393), and in the other of the final certificate thereunder (2 U.S.Comp.St. 1901, pp. 1534, 1535; Act June 14, 1878, c. 190, Sec. 4, 20 Stat. 113, 114). The complainant insists that his claim is not a debt contracted by Tillett, but that it is a liability incurred by him for a wrong, and hence that the land is not exempt from the payment of his claim. The defendants challenge this contention and claim the exemption of the lands and the water rights appertaining thereto. If this issue be decided in favor of the complainant, he will be entitled to a sale of the lands, and, if it be determined in favor of the defendants, the lands are free from the complainant's claim. This controversy did not arise until the judgment of revivor had been rendered and the amount of that judgment had been allowed as a claim against the estate of Tillett and it had been classified by the county court of Prowers county for payment in the month of April, 1899. Upon the proof and allowance of this, the only claim, against the estate, the duty devolved upon the administratrix under the statutes of Colorado (2 Mills' Ann. St. Secs. 4751, 4770, 4778) to institute and conduct a proceeding in the nature of a suit in equity either in the county court or in the district court of Prowers county, in accordance with the practice of courts of chancery, to subject these lands to a sale, and to apply their proceeds to the satisfaction of the claim of Mann. From April, 1899, when this duty was imposed upon her, until September, 1901, the administratrix neglected it, and then in reply to a written demand she refused to commence the suit, and the complainant pleaded these and other facts in his bill and besought the court below to subject these lands to a sale. The court granted a decree for the relief he sought.

Counsel for the appellants assail this decree on the grounds (1) that the court below had no jurisdiction of the proceeding because it is a suit to enforce the judgment of the state court and there is no diversity of citizenship or federal question, and because the complainant had an adequate remedy at law by a procedure in the county court; (2) that the suit is barred by laches; (3) that the lands are exempt from liability for the claim of the appellee; (4) that the federal court has no jurisdiction to sell the lands because the administration of the estate is still pending and the lands and the water rights appertaining thereto are in the legal custody of the county court; and (5) that the court below erred in its treatment of the claim of Brun for a widow's allowance and for expenses of administration.

Diversity of citizenship and the amount in controversy conferred jurisdiction upon the United States Circuit Court to render the original judgment against Tillett for his wrongful seizure and conversion of the cattle. Plenary power to enforce this...