Bull v. Campbell

• Decision Date: 23 June 1915
• Docket Number: 4367.
• Citation: 225 F. 923
• Parties: BULL v. CAMPBELL.
• Court: U.S. Court of Appeals — Eighth Circuit

225 F. 923

BULL v. CAMPBELL.

No. 4367.

United States Court of Appeals, Eighth Circuit.

June 23, 1915

The appellee, hereinafter called the plaintiff, filed his bill in the District Court against the appellant, referred to hereafter as the defendant, to determine adverse claims and to quiet his title to a quantity of land in the state of North Dakota. The defendant, asserting title in himself filed a counterclaim, asking for the same relief against the plaintiff.

The plaintiff claims to be the owner of the lands described in the complaint, deraigning title from one Christopher Stuart Patterson, under whom the defendant also claims title in his counterclaim. The plaintiff deraigns title by reason of a mortgage executed by Patterson and wife on the 2d day of October, 1879, to secure the payment of an indebtedness of $5,000. On August 2, 1880, the plaintiff, being the owner of the indebtedness secured by the mortgage, instituted an action in the district court of Burleigh county, Dakota territory, in which district the lands were situated, for the purpose of foreclosing the mortgage. The defendants Patterson, in that case, were duly served with process within the territorial jurisdiction of the court, but made no defense, whereupon a decree by default was entered on November 24, 1880. Under this decree a sale of the premises was had, and the plaintiff became the purchaser thereof. This sale was duly confirmed by the court. After these proceedings had been had, it was ascertained by the plaintiff that before the institution of that suit Patterson and wife, the mortgagors, had conveyed these lands to one J. Warren Coulston; but, that fact having been overlooked, Coulston was not made a party defendant in the foreclosure proceedings. Thereupon, on the 9th day of February, 1885, another action of foreclosure was instituted in the district court of the Sixth judicial district of the territory of Dakota against the said Coulston as the sole defendant. Coulston being a nonresident of the territory, and the sheriff having made the return on the summons that he could not be found in the territory, after using due diligence, an affidavit was presented to the judge of the court, which affidavit is as follows: 'Territory of Dakota, County of Burleigh.

'John E. Carland, being duly sworn, on oath says that he is the attorney for the plaintiff in this action; that the said defendant J. Warren Coulston cannot after due diligence be found within this territory; that a summons was duly issued against said defendant and placed in the hands of the sheriff of said county for service, but was returned by said sheriff with his indorsement thereon that said defendant could not be found, which summons, so indorsed, is hereto annexed; that said defendant is a proper party to this action, which relates to real property in this territory; that a cause of action exists against the said defendant in favor of the said plaintiff, as will appear by the complaint of the said plaintiff, a copy of which is hereto annexed; that the affiant is informed and believes that the said defendant, J Warren Coulston, resides at Philadelphia, in the state of Pennsylvania; that the subject of this action is real property in this territory, and said defendant claims an equity of redemption therein, and the relief demanded is a foreclosure of said equity.

'John E. Carland.'

Upon presentation of this affidavit, which was duly verified, the judge of said court, on February 9, 1885, made the following order in that cause:

'It satisfactorily appearing to the judge of said court, by the annexed affidavit of John E. Carland, that the defendant, J. Warren Coulston, cannot after due diligence be found within this territory, and it in like manner appearing that a cause of action exists against the said defendant in favor of the said plaintiff, Hugh Campbell, Jr., and that said defendant is a necessary party in said action, as set forth in his complaint, a copy of which is hereto annexed, and that the subject of the action is real property in this territory, and said defendant claims an equity of redemption therein, and the relief demanded is a foreclosure of said equity, and it further appearing that the place of residence of the said defendant, J. Warren Coulston, is at Philadelphia, in the state of Pennsylvania: On motion of John E. Carland, attorney for the said plaintiff, ordered, that service be made upon said defendant by the publication of a summons in the form of the copy of same hereto annexed, in the Bismarck Weekly Tribune, a newspaper printed and published in Bismarck, Dakota, the same being most likely to give notice to said defendant, once a week for six successive weeks; and it is further ordered and directed that a copy of the summons and complaint be forthwith deposited in the post office, in a registered letter, directed to the said defendant, the person to be served, at Philadelphia, Pennsylvania, his place of residence, and postage paid.

'Dated February 9, 1885.

William H. Francis, Judge.'

Due notice was given by publication as required by the order of the court, and also a copy of the summons and complaint sent through the mail, in a registered letter, to the defendant addressed at Philadelphia, Pa., his place of residence, postage prepaid. In addition to that a copy of the summons and complaint was also served on the defendant at Philadelphia by a disinterested person, over the age of 18 years, and a return of the service made under oath by that person. This last service was made on the 27th day of April, 1885.

On the 8th day of July, 1885, the cause came on for hearing, and proof of the service of process having been presented to the court, a decree was rendered by the court reciting that the said defendant, J. Warren Coulston, had been duly served with process in said action, but having filed no pleading therein, and made no appearance in any manner, either in person or by attorney, was in default of answer, and thereupon the court, having heard the evidence, found the facts necessary to render a decree ordering a sale of the premises by the sheriff of the county, and upon such sale that the defendant's equity of redemption be barred and foreclosed from all equity of redemption and any claim to said mortgaged premises, and every part and parcel thereof, after the delivery of the sheriff's deed. A sale was had, and the plaintiff became the purchaser at that sale for the mortgage debt, and, no redemption having been made from the sheriff's sale, it was approved by the court, and the sheriff directed to execute a deed of conveyance to the plaintiff, which was done.

Immediately after the delivery of the sheriff's deed to him, the plaintiff entered into possession of the lands, and has held them ever since openly and adversely to the title of any other person from that date to the time this suit was instituted, which was on May 15, 1911. The lands were wild, open, and uninclosed, and situated in a thinly settled district of said county; and he has paid the taxes thereon annually ever since, and ever since the year 1891 has leased and rented said lands for grazing, pasturage, and the making of hay thereon to tenants, who have accounted to him for the value of such use and occupation of said lands. He inclosed all of said lands by a substantial fence showing his occupation; and during all the time he was in such possession neither the mortgagor, Patterson, nor Coulston, nor any one claiming under them, or either of them, has ever been in possession of said lands, nor in any wise disturbed, disputed, or protested against plaintiff's possession.

On August 15, 1906, the defendant obtained and caused to be filed for record and recorded in the office of the register of deeds for Burleigh county, N.D., where said lands are situated, a quitclaim deed to these lands from J. Warren Coulston to him, the defendant. The consideration named in the instrument is 'the sum of one dollar and other valuable consideration,' and it bore date August 10, 1906. At the time of the sale by the sheriff under the foreclosure decree in the action against Coulston, had in the territorial court, the value of the lands did not exceed the sum of $5,433.26; but since then, more than 25 years having elapsed, these lands have greatly increased and appreciated in value, and are now worth at lease $50,000, and he has paid out in taxes on said lands during that time the sum of $3,000.

For the purpose of obtaining possession of these lands, the defendant, on April 23, 1910, purchased from a tenant of plaintiff some lands adjoining the lands belonging to the plaintiff, and then pretended to make a lease to one Hubbard, and induced him to commit trespasses upon plaintiff's lands; and the defendant also caused Hubbard, who claimed to be his lessee, to cut the fence which inclosed plaintiff's land and drive some live stock belonging to him thereon, and after the plaintiff had caused Hubbard to leave and repaired the fence, he at various times thereafter again cut the fence and trespassed upon the lands.

The prayer of the bill is the usual one, that the defendant be required to set forth his adverse interest, demand, right, title, and interest, or estate, in and to the premises, in order that they may be justly adjudicated, and that upon a hearing they be declared null and void as against the plaintiff, that the plaintiff's title to the lands be confirmed and quieted against the defendant and all claiming under him, and that he be enjoined and restrained from asserting any claim, right, or title adverse to the plaintiff.

The defendant filed an answer in which he denies plaintiff's right upon several grounds: First, that at the time Patterson executed the mortgage no patent had been...