Butterfield v. Miller

• Decision Date: 13 February 1912
• Docket Number: 2,128.
• Parties: BUTTERFIELD et al. v. MILLER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

195 F. 200

BUTTERFIELD et al. v. MILLER et al.

No. 2,128.

United States Court of Appeals, Sixth Circuit.

February 13, 1912

Willard F. Keeney (James A. England and Chester G. Bond, on the brief), for appellants.

J. A Pitts (Ross & Ross and Pitts & McConnico, on the brief), for appellees.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

Appellees (hereafter called complainants) filed their bill to remove cloud from title to a tract of 5,000 acres in Perry county Tenn., entered by Isaac W. Stanley in 1841. They deraign title from Stanley through deed dated May 22, 1851, by John Montgomery (claimed to have been Stanley's administrator) to Secrist, who conveyed to Stephens August 4, 1855, and by conveyance July 1, 1858, by the clerk and master of the chancery court of Perry county to Brown and Miller (complainant's ancestors) under decree of that court in attachment proceedings brought by Brown and Miller against Stephens. Butterfield and Peck (hereafter called defendants) originally claimed about 2,875 acres of the tract by purchase in 1889 (for value and in ignorance of the Stanley entry and title) from claimants under entries made in 1855, 1857, and 1861, respectively, and thus later than the Stanley entry. In 1900, after this suit was begun (but before answer), Butterfield and Peck obtained from Stanley's heirs (for a comparatively nominal consideration) a conveyance of the entire 5,000-acre tract. It is now conceded that the Stanley title is superior to that of the later entrymen, under whom defendants originally claimed; and complainants' title is superior to that of defendants', unless either the deed from Montgomery to Secrist was ineffective to convey Stanley's title or the attachment proceedings in the suit of Brown & Miller v Stephens, and the deed thereunder, were insufficient to transfer the latter's title. Defendants assail the validity or effect of both these conveyances. They also deny jurisdiction under the bill in this cause, for alleged lack of sufficient possession of the land by complainants. From the decree of the Circuit Court, which adjudged complainants' ownership in fee of the entire tract, and set aside defendants' claim of title as clouds thereon this appeal is taken.

1. Had the Circuit Court Jurisdiction?

Independently of a statute of the state where the land lies, a bill to remove cloud from legal title to land cannot ordinarily be brought, in a court of the United States, by one not in possession of the real estate in controversy; the ground being that complainant in such case has an adequate remedy at law. United States v. Wilson, 118 U.S. 86, 6 Sup.Ct. 991, 30 L.Ed. 110; American Ass'n v. Williams (C.C.A. 6th Cir.) 166 F. 17, 93 C.C.A. 1. There is no statute in Tennessee authorizing a bill to remove cloud from title where neither party is in possession. The proofs show that each party has sufficient possession to maintain suit against strangers to the title, but that the possession of each is of the same general nature; the possession of neither being such as to be effectively exclusive of the other. Under the practice in Tennessee, where neither party is in actual possession, an ejectment suit may be maintained in the chancery court, from which court this case was removed to the federal court. The existence of the remedy in ejectment given by the Tennessee statute would not oust the federal court in equity of jurisdiction over the suit, on the ground of adequacy of remedy at law. American Ass'n v. Williams, supra, at page 23 of 166 Fed., 93 C.C.A. 1. Passing as unnecessary for decision the question whether, in view of the practice and rule referred to, the federal court sitting in equity would have jurisdiction of this case, and the question whether remedy existing in the chancery court of Tennessee could be preserved by a transferring of the case to the law side of the federal court, we think ample jurisdiction is found in the fact that the establishment of the deed from Montgomery to Secrist as the deed of Stanley (including the establishment of Montgomery's alleged administratorship) is necessary to the proof of complainants' title, especially in view of defendants' contention (hereafter discussed) that the deed in question is merely that of Montgomery individually. To say the least, the remedy in ejectment would not be as complete as in equity. We think the jurisdiction is as clear as for the establishment of a lost deed or a lost power of attorney. Had ejectment suit been instituted, we think a bill in aid thereof would have been proper for the purpose of establishing such deed as the conveyance of Stanley. No reason is apparent why such jurisdiction should not be exercised by an independent bill in equity.

2. Did the Deed from the Clerk and Master to Brown and Miller Effectually Convey Stephens' Title?

The suit which resulted in a decree and sale thereunder was brought to collect the amount of a judgment recovered, in a state court of Ohio, by Brown and Miller as plaintiffs against Stephens as defendant. The deed of the clerk and master is in due form. The decree recites that 'the defendant has been attached by his property and summoned by publication to be and appear before the court,' etc., orders the taking of the bill as confessed for want of appearance, recites the finding of the indebtedness from the defendant Stephens to Brown and Miller, upon the Ohio judgment, and the latter's ownership of the land in question, and orders sale of the same after 30 days' notice to be published for three successive weeks in a newspaper named. The report of sale was confirmed. The attack here made upon the decree and proceedings thereunder is collateral. Against such attack only jurisdictional questions can be considered. Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931; Simmons v. Saul, 138 U.S. 439, 452, 11 Sup.Ct. 369, 34 L.Ed. 1054; Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781. With respect to the decree of a court of general jurisdiction the rule is well settled that recitals such as are found here are presumptive evidence of compliance with the steps necessary to the jurisdiction of the court, and (by the better authority) cannot be overcome by extraneous evidence, but only by evidence contained in the record. Cooper v. Reynolds, supra; Robertson v. Winchester, supra; Applegate v. Lexington, etc., Min. Co., 117 U.S. 255, 266, 6 Sup.Ct. 742, 29 L.Ed. 892; 1 Black on Judgments, Sec. 273, and cases cited; Walker v. Cottrell, 6 Baxt. (Tenn.) 257, 273, 274, and cases there cited. And the fact that the jurisdiction of the court over the matter in question is dependent upon statute (as in the case of attachment) does not change the rule as above stated, where the statutory powers are brought into action in the usual form of common law or chancery proceedings, or where the court is one of special jurisdiction as respects the peculiar remedy. Harvey v. Tyler, 2 Wall. 328, 17 L.Ed. 871; Comstock v. Crawford, 3 Wall. 396, 18 L.Ed. 34; Applegate v. Lexington, etc., Min. Co., supra. On the other hand, where the record states the evidence or makes an averment with reference to the jurisdictional feature, it will be understood to speak the truth on that point, and (subject to certain exceptions unnecessary to consider) it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred. Galpin v. Page, 85 U.S. 350, 366, 21 L.Ed. 959; Settlemier v. Sullivan, 97 U.S. 444, 448, 24 L.Ed. 1110; Cheeley v. Clayton, 110 U.S. 701, 708, 4 Sup.Ct. 328, 28 L.Ed. 298; Dick v. Foraker, 155 U.S. 404, 413, 15 Sup.Ct. 124, 39 L.Ed. 201; Old Wayne Life Ass'n v. McDonough, 204 U.S. 8, 17, 27 Sup.Ct. 236, 51 L.Ed. 345; Johnson v. Hunter (C.C.A. 8th Cir.) 147 F. 133, 137, 77 C.C.A. 359.

The Tennessee statute in force when the attachment proceedings in question were had (Act Feb. 15, 1836 (Acts 1836), as amended and explained by Act Jan. 27, 1838 (Acts 1838)) permitted such remedy upon affidavit that defendant is a nonresident of the state. The fact that the pleader may have had in mind an inapplicable statute is immaterial; there having been a statute under which the affidavit would be sufficient. No separate affidavit for attachment is presented. The bill of complaint, however, prays for attachment to be levied upon the lands in question, and 'that the said William P. Stephens, who is a citizen of the state of Indiana, be made defendant, that publication be made,' etc. Such bill may properly constitute an affidavit for attachment. Peak v. Buck, 3 Baxt. (Tenn.) 71; Foster v. Hall, 4 Humph. (Tenn.) 345, 348. And the method of statement referred to as contained in the bill is a sufficient allegation that the defendant therein is 'a citizen of Indiana.' Walker v. Cottrell, supra; Grubbs v. Colter, 7 Baxt. (Tenn.) 432; Bascom v. Smith, 31 N.Y. 595, 605.

The first important question is whether such reference to Stephens as a citizen of Indiana is a sufficient allegation that such defendant is a nonresident of Tennessee. If so sufficient jurisdiction for the attachment suit existed, otherwise not. In the Slaughterhouse Cases, 16 Wall. 36, 74 (21 L.Ed. 394), it is said that to make one a citizen of the Union 'it is only necessary that he should be born or naturalized in the United States,' but that 'he must reside within the state to make him a citizen of it. ' Under the statute making diverse citizenship of parties ground of federal jurisdiction, it has always been held that an averment of diverse residence is not an allegation of diverse citizenship. But the reason for the rule is that citizenship requires not merely residence, but domicile, viz., a fixed and permanent residence. Bingham v. Cabot, 3 Dall. 382, 1 L.Ed. 646; ...