Kilgore v. Norman

• Citation: 119 F. 1006
• Parties: KILGORE et al. v. NORMAN et al.
• Decision Date: 07 August 1902
• Court: U.S. District Court — Southern District of Georgia

119 F. 1006

KILGORE et al. v. NORMAN et al.

United States Circuit Court, S.D. Georgia, Eastern Division.

August 7, 1902

John I Hall and Olin J. Wimberly, for complainants.

Washington Dessau, Nathaniel E. Harris, Joseph Hamsell Merrill, and Matt J. Pearsall, for respondents.

In Equity. On motion to dissolve preliminary injunction.

SPEER District Judge (orally).

It has been announced during the argument that the court would take the case under advisement before pronouncing the decision. The hearing has contained so much of detail, and the arguments have been so fully made, that this is not now deemed necessary.

There are certain questions, which have been argued in extenso about which the court has no difficulty. One is the contention that there is no equity jurisdiction here, because there is a remedy at law. This is not true, in the opinion of the court. The proceeding is, as contended, in part for the recovery of a large number of lots of pine land. It is also true that the complainants rely upon their legal title having its origin in a grant from the state, with sufficient conveyances and clearly shown inheritable rights, vesting the title in them. It is not true, as contended, that they could have recovered on their title at law, because they would have been confronted with deeds made to the respondents by the agent or attorney in fact of Mrs. Caroline Kilgore, viz., one H. M. Hitt. This man was empowered by Mrs. Kilgore to recover these lands. He was also empowered to dispose of them for her benefit. Thus, upon the face of the papers, the respondents' deeds would at common law afford a complete answer to the complainants' claim of title. It is however, true that the bill charges that the lands were conveyed in absolute disregard of the complainants' rights, and as a result of a conspiracy between the respondents and this agent, Hill. This conspiracy is set out in detail, and there is much proof to support the charges. If there was such a fraudulent conspiracy with the agent of complainants, if the respondents were co-conspirators, and if the deeds were made as the result of such conspiracy, it is obviously a case in which the complainants have a right to invoke the powers of a court of equity to avoid and cancel the deeds made in its execution. The complainants could not, in a court of law of the United States, set up such an equitable reply to the apparently legal, though fraudulent, title of the respondents, as would suffice to secure the complainants' rights. It is, however, competent for them to do this upon such a bill as that before the court. Nor is it sufficient to defeat the bill to point out a remedy at law. It must appear that the remedy at law is in all respects as complete as that in equity.

Nor is the bill multifarious. This is a proceeding on the part of the heirs of a husband and wife to recover lands, the title to which was either in the husband or in the wife, or both. There is nothing multifarious in a title devolved through the law of inheritance, when the title is vested in one or the other or both of the parents of the person suing. It is said, however, that the bill is multifarious because the defendants have a multitude of titles from different sources. It, however, cannot, we think, be insisted, because an answer is multifarious, that the bill itself is obnoxious to that objection,--an objection always addressed to the discretion of the court.

It is moreover, contended that the court has no jurisdiction because the proper diversity of citizenship is not shown. Evidence in the form of affidavits has been produced to show that two of the complainants were residents of this state, and, since they are necessary parties to the bill, it is contended that the relief sought must be denied for want of jurisdiction. Prima facie the court had jurisdiction, because the sworn averments of the bill set out the essential jurisdictional facts. There is evidence to support these averments. No plea of the jurisdiction was filed, and this defense is presented for the first time on this hearing. It seems, therefore, that the burden of proof is on the defendants to show that the averments of diversity of citizenship by the complainants are not true. Does the evidence sustain that burden? I do not think so. It is presented in the form of affidavits, and, of these affidavits, it is uncontradicted that all but one was secured by one of the attorneys for the defendants, a Mr. Shipp, who, according to the undisputed testimony, resorted to questionable...