De Forest v. Thompson

• Citation: 40 F. 375
• Parties: DE FOREST et al. v. THOMPSON, Commissioner, et al.
• Decision Date: 14 November 1889
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

40 F. 375

DE FOREST et al. v. THOMPSON, Commissioner, et al.

United States Circuit Court, D. West Virginia.

November 14, 1889

Thomas L. Brown and James H. Ferguson, for plaintiffs.

James M. French, Joel E. Stollings, Watts & Kennedy, and Kenna &amp Chilton, for defendants.

Before HARLAN, Justice, and JACKSON, J.

JACKSON J.

It is alleged in the original and first amended bill in this cause that the plaintiff was the owner of 60,000 acres of land lying mostly in Boone county, in this state, a part of which is in controversy in this suit; that for the years 1869 and 1870 it was returned delinquent by the sheriff of Boone county for the non-payment of taxes thereon, in the name of the plaintiff; that on the 12th day of October, 1871, it was sold by the sheriff of Boone county for the non-payment of taxes thereon, and was purchased by the state, not being redeemed by the owner within the time prescribed by law; that the land was certified by the then auditor of state 'as land within said Boone county, forfeited to the state of West Virginia in the name of Burr Wakeman, for the non-payment of the taxes thereon for the years 1869 and 1870;' that afterwards the defendant, Thompson, commissioner of school lands for Boone county, filed his petition in the circuit court for that county to have the said land sold for the benefit of the school fund, and, a decree being obtained for that purpose, the commissioner sold a portion of the land and made a conveyance to the purchasers thereof. The bills allege numerous irregularities and illegalities in the proceedings as reasons why the sales and deeds should be declared illegal and void. After the filing of the original and first amended bills the plaintiffs allege that they discovered other errors, irregularities, and illegalities in the proceedings of the sheriff and recorder of Boone county in relation to the sale of the land and the report thereof to the recorder by the sheriff, and the recordation thereof by the recorder which would render the proceedings absolutely null and void and that in fact no forfeiture of said tract of land ever occurred. For this reason the second amended and supplemental bill was filed, setting up these facts. The defendants filed their answer in reply to the allegations of the bill, amended and supplemental bill, setting up various defenses,-- among others, the sale of the land for the non-payment of taxes under the decree of the circuit court of Boone county relying upon the defense that the courts of the United States were without jurisdiction to pass upon the validity of the title to the lands claimed herein, for the reason that, the deeds having been made in pursuance of an order of the circuit court sitting for the county of Boone, where the lands lie, such sales could only be set aside and avoided by the decree of the court which directed them to be made. In this last position I do not concur. The plaintiffs are citizens of New York, and the defendants being citizens of West Virginia, the controversy between the parties is one between citizens of different states, and therefore, by the constitution and laws of the United States, is one of which the proper court of the United States may take cognizance in some form.

The question to be determined here is whether the orders of the Boone circuit court, under which the lands in dispute were sold, are conclusive and binding upon the plaintiffs, when assailed in an independent collateral proceeding, and may be decided as well here as in the state court. The presence of such a question in the case does not affect the jurisdiction of this court, for it is competent for the federal court in a controversy between citizens of different states to pass upon the question whether the state court had jurisdiction or power to order the lands in question sold by the school commissioner. Payne v. Hook, 7 Wall. 425; Johnson v. Waters, 111 U.S. 640, 4 S.Ct. 619; Arrowsmith v. Gleason, 129 U.S. 86, 9 S.Ct. 237.

In the last case referred to the court said:

'These principles control the present case, which, although involving rights arising under judicial proceedings in another jurisdiction, is an original, independent suit for equitable relief between the parties; such relief being grounded upon a new state of facts, disclosing not only imposition upon a court of justice, in procuring from it authority to sell an infant's lands when there was no necessity therefor, but actual fraud in the exercise from time to time of the authority so obtained. As this case is within the equity jurisdiction of the circuit court, as defined by the constitution and laws of the United States, that court may, by its decree, lay hold of the parties, and compel them to do what, according to the principles of equity, they ought to do, thereby securing and establishing the rights of which the plaintiff is alleged to have been deprived by fraud and collusion.'

Applying the principles announced in the foregoing decisions, it will hereafter be seen, in the discussion of this case, that it falls within the principles as announced by the court in the foregoing cases.

The next contention is that the plaintiffs, never having qualified as executors of Burr Wakeman in this state, could not bring this suit. This position cannot be maintained. In Lewis v. McFarland, 9 Cranch, 151, it was said that the principle that 'letters testamentary give to the executor no authority to sue for the personal estate of the testator out of the jurisdiction of the power by which those letters are granted' does not extend to a suit for lands devised to an executor. This is not an action for the recovery of personal property. The purpose and object of this action is to set aside the sale of certain lands described in the bills and amended bills, and to vacate the deeds made in pursuance thereof. The plaintiffs in this action sue under the will of Burr Wakeman, which vested the title to his lands in his executors and trustees. They are therefore devisees and trustees suing for the protection of rights to the realty derived from and under that will, and not in their character as personal representatives, derived from the letters testamentary. By the will, the legal title to the land in controversy was vested in the plaintiffs in this action, and, as I have before said, being citizens of a different state from the defendants in this action, they were entitled to be heard in this court.

The next position insisted upon by the defendants to defeat the plaintiffs' action is that, if the plaintiffs' position is true, that the proceedings were absolutely void under which the lands were sold, then the plaintiffs have a complete and adequate remedy at law, and this court, sitting in equity, is without jurisdiction to grant the relief asked for. It will be observed that the lands in question were sold by virtue of the proceedings in the Boone circuit court, and passed into the hands of numerous parties, each of whom claims under a sale made under the order of that court relating to the whole of the land in dispute. The state court based its proceedings upon steps previously taken upon the forfeiture of these lands as delinquent lands. The lands prior to the alleged forfeiture and sale under the order of the court constituted one body, and were held by one person, Burr Wakeman. If the attempt to forfeit them was not in law a forfeiture that divested his title, or if the proceedings in the Boone circuit court were unauthorized and void, then the title as to all the lands remains in Wakeman, and passed under his will to the plaintiffs. Each defendant's title depends upon the same questions, and those questions all have relation to the proceedings in the Boone circuit court, and to the attempt to forfeit the lands for non-payment of taxes. It is a case of one person having a right against a number of persons, which may be determined as to all the parties interested by one suit. If the plaintiffs brought ejectment against one of the defendants, and succeeded, the judgment would not conclude the other defendants, although the question in each case would be precisely the same. But if the plaintiffs can, by one comprehensive suit, have their rights declared and secured as to all the lands, the possession of which is withheld by the defendants, each claiming a particular parcel, but all basing their claims upon the same...