Lone Jack Mining Co. v. Megginson

• Decision Date: 28 June 1897
• Docket Number: 345.
• Parties: LONE JACK MIN. CO. et al. v. MEGGINSON.
• Court: U.S. Court of Appeals — Ninth Circuit

82 F. 89

LONE JACK MIN. CO. et al. v. MEGGINSON.

No. 345.

United States Court of Appeals, Ninth Circuit.

June 28, 1897

George D. Collins, for appellant.

Reddy Campbell & Meston and Ira D. Orton, for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

William Megginson brought a suit in the circuit court against the Lone Jack Mining Company, a corporation, J. F. Turner, Jacob Bertz, Humphrey Lawrence, and George L. Brown to quiet his title to mining property known as 'Lone Jack Quartz Mine,' in Slug gulch, El Dorado county, Cal.; alleging in his bill that he was the owner and in possession of said property, and that the defendants claimed an interest therein adversely to him. The bill was taken pro confesso as to all the defendants except the Lone Jack Mining Company. In its answer to the bill that corporation denied that the complainant owned, or was then or ever had been in possession of, the mining property, and alleged substantially the following facts: That on November 28, 1888, it had duly located the mining property described in the bill, and had taken all the necessary steps to protect and secure said location, and that for five years continuously prior to the commencement of the suit it had occupied and claimed the same, and paid taxes thereon, and maintained the boundaries thereof. It further alleged that prior to making its location, in 1888, there had been a mortgage lien of $6,000 upon the property in favor of John Hanley and Julius Johnson that on March 21, 1884, said mortgagees had commenced a suit to foreclose the mortgage, and on October 4, 1887, obtained a decree of foreclosure; that thereafter Julius Johnson died and administration was had of his estate, and on September 2 1890, an administration sale was duly ordered of his interest in the said judgment and decree, and on October 10, 1890, the administrator sold the same to J. Davey for $100; that said Davey, in purchasing said decree, acted as trustee for the Lone Jack Mining Company, and purchased the same with money furnished by that corporation through its president, J. F. Turner, but that on September 28, 1890, said Turner secured from Hanley and Davey an assignment and transfer of said decree to one A. E. Bolton, who was the agent and attorney of the corporation, and said Bolton received the same in trust for the corporation; that on September 19, 1892, the said Hanley and Davey, notwithstanding the former transfer, fraudulently assigned said decree to Lawrence S. Megginson, and that said assignment was made at the instigation of Turner, and for the purpose of securing Megginson for moneys previously loaned to Turner, but that Megginson had notice that the corporation was the owner of said decree; that on November 30, 1892, Lawrence S. Megginson, at the instance of Turner, and for the purpose of defrauding the corporation, obtained an order of sale directing the sheriff of El Dorado county to sell the said property under said decree of foreclosure, and that thereupon C. P. Winchell, the sheriff of said county, did, on October 29th, make sale thereof to Lawrence S. Megginson for the alleged consideration of $9,415.25, and on the same date the said sheriff executed to said purchaser a certificate of sale of said property, and thereafter said certificate was transferred to the complainant, William Megginson, but that the latter took the same with notice of the rights of the corporation; that on April 29, 1893, the certification of sale was surrendered, and a sheriff's deed to said property was obtained from the sheriff of El Dorado county to the said complainant. There are other averments and defenses set up in the answer, but the foregoing is sufficient for the purposes of this appeal. Upon the issues and proofs the court found the equities to be with the complainant, and entered a decree adjudging that the defendants have no interest in said property, and quieting the complaiant's title thereto. The assignments of error are mainly directed to the rulings of the trial court on the admissibility of evidence. The most of these rulings are ignored in the appellant's brief on the appeal, and it will not be necessary to consider them. The assignments of error which were relied upon on the argument are the following: (1) The corporation being in possession, the suit is not maintainable. (2) That the appellee failed to show title. (3) The decree includes patented land conveyed by the owner to the corporation.

The appellant's principal contention is that the circuit court had no jurisdiction of the cause, for the reason that it appeared from the evidence that the complainant had no actual possession of the premises which were the subject of the suit. While admitting the doctrine sustained by the decisions of the supreme court in More v. Steinbach, 127 U.S. 70, 8 Sup.Ct. 1067, Holland v. Challen, 110 U.S. 15, 3 Sup.Ct. 495, and U.S. v. Wilson, 118 U.S. 86, 6 Sup.Ct. 991, that under the statute of California, and other statutes similar thereto, a suit in equity to quiet title may be maintained in the federal courts whether the complainant be in or out of the possession of the premises, the appellant contends that the doctrine is applicable only to suits concerning property whereof neither the complainant nor the defendant has the actual possession, and that equity has no jurisdiction of a bill whose office it is to perform the function of an action in ejectment, or to recover the possession of property which is in the actual and adverse possession of the defendant. This point is made for the first time in this case on the argument on the appeal. No objection was made to the jurisdiction at any time in the court below, nor is such objection included in the appellant's assignment of errors. The general assignment 'that the said circuit court erred in rendering a decree herein against the said Lone Jack Mining Company' is not sufficiently specific to point out the error, if error it was, which is now complained of. The objection comes too late. Perego v. Dodge, 163 U.S. 160, 16 Sup.Ct. 971; Reynes v. Dumont, 130 U.S. 354, 9 Sup.Ct. 486; Kilbourn v. Sunderland, 130 U.S. 505, 9 Sup.Ct. 594; Brown v. Iron Co., 134 U.S. 530, 10 Sup.Ct. 604. In Reynes v. Dumont the court approved the rule stated in 1 Daniell, Ch.Prac(4th Am.Ed.) 55, as follows:

'If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. This objection should be taken at the earliest opportunity. The above rule must be taken with the qualification that it is competent for the court to grant the relief sought, and that is has jurisdiction of the subject-matter.' The present case comes within the terms of the rule, with its qualification. It is a case of which the court would have had jurisdiction if ejectment had been brought by the appellee against the appellant to recover the possession of the property.

It is next contended that the appellee failed to prove title in himself, for the reason that the sheriff's deed purporting to convey to him the property which was sold at the mortgage foreclosure sale was void. Its invalidity is said to consist in the fact that the sale was made by one Winchell, who was sheriff at the date of the sale, whereas the deed which followed was made by one Hilbert, his successor in office. To support this contention, reference is made to Anthony v. Wessel, 9 Cal. 103, where it was held that the proper person to execute the sheriff's deed was he who held the office at the date of the sale notwithstanding the fact that at the date of making the deed his term of office had expired, Very soon after that decision was made, and evidently for the purpose of correcting the evil to which it directed attention, the...