Mootry v. Grayson

• Decision Date: 01 October 1900
• Docket Number: 593.
• Citation: 104 F. 613
• Parties: MOOTRY v. GRAYSON.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F. 613

MOOTRY v. GRAYSON.

No. 593.

United States Court of Appeals, Ninth Circuit.

October 1, 1900

The appellee brought suit in equity in the court below on June 2 1897, to quiet the title to certain mining property commonly known as the 'Gold Hill Mines,' situated in Boise county, Idaho. The appellant answered the bill of complaint and filed a cross bill, praying that a decree in a partition suit entered in the district court of the Second judicial district in the state of Idaho, on the 16th day of November 1895, and the sale of the property pursuant to such decree to the grantor of the appellee, on the 26th day of June 1896, be declared wholly void and of no effect. The circuit court heard the case upon the merits, and dismissed the action. It appears that on the 22d day of December, 1887, D. E Coughanour, William A. Coughanour, and Thomas Mootry, Jr., were tenants in common of the property the title of which is in controversy in this action. Thomas Mootry then brought an action in the district court of the Second judicial district, in the county of Boise, in what was at that time the territory of Idaho. The object of the action was a partition of the property, and such proceedings were thereupon had that on the 5th day of May, 1890, a decree was entered in the district court providing for a sale of the property by a referee for a sum not less than $200,000. The decree also provided that a deed should be executed and delivered to the purchaser, and, after the payment of costs and expenses, the proceeds should be distributed to the several owners. The limitation of $200,000 on the selling price of the property was qualified by a provision of the decree that it should not be sold for a less sum without the consent of all the parties to the action, and that, if a sale should not be made before the return of the order of sale, the direction and limitation of the decree should apply to any sale made under any subsequent order of sale issued in the action, unless waived by all the parties, or modified by the court upon notice to all the parties to the action. The territory of Idaho was admitted into the Union as a state on July 3, 1890. By the act of congress of that date and the constitution of the state, all cases pending in the territorial courts at the time of the admission of Idaho into the Union as a state were transferred to the corresponding state courts, to be there proceeded with in due course of law. At the time the state courts succeeded to the jurisdiction of the territorial courts no sale had been made of the property mentioned in the decree just referred to, and nothing further appears to have been done in the matter until August 14, 1894, when Thomas Mootry began a new action in partition in the Third judicial district of the state of Idaho for the county of Boise against his partners, D. E. and W. A. Coughanour. To the complaint in this action the defendants answered, and set up the decree of May 5, 1890, as a judgment in bar to the action. Thereupon the plaintiff filed an amended complaint praying for a partition of the property and for a modification of the decree of May 5, 1890. On July 19, 1895, a decree was entered upon stipulation, and by agreement of counsel in open court, and by consent of the parties to the action, providing that the property should be sold at not less than $75,000 instead of $200,000, as provided in the original decree, and providing, also, for the appointment of a new receiver or commissioner to make the sale and carry the judgment or decree into effect. On November 16, 1895, the court, on motion of the plaintiff, modified the order of July 19, 1895, so as to provide that the commissioner and receiver should proceed to sell the property as provided by law without any limitations as to price, it appearing that the property could not be sold for the price named in the order of July 19, 1895. By this decree the sale was fixed for January 11, 1896. On December 1, 1895, the plaintiff, Thomas Mootry, died, leaving his sisters Mary Mootry and Margaret Mootry sole heirs, and on the 17th day of June, 1896, Margaret Mootry died intestate, leaving Mary Mootry her heir at law. On December 27, 1895, the court made an order modifying the decree of November 16, 1895, by changing the date of sale to February 20, 1896, and providing for the publication of the notice of sale. On January 8, 1896, in accordance with the stipulation of the parties, the sale was ordered postponed to June 20, 1896. The stipulation provided, further, for the sale of certain property belonging to the Gold Hill mine, and the application of the proceeds to the payment of the debts of the Gold Hill Mining Company. On June 16, 1896, R. R. Grayson, the appellee herein, telegraphed from San Francisco to the judge of the court in which the suit was pending, as follows: 'Has sale of Golden Mine been postponed? If not, I will have an agent on 20th to make bid. Answer immediately, giving full particulars. ' The answer to this telegram does not appear in the record, but on the following day Grayson sent a second dispatch, as follows: 'Your message received too late to leave to-day. I will leave to-morrow for Idaho. Postpone sale, if possible, until June 24th. Answer immediately. ' On June 18, 1896, the court, on motion of counsel for defendants, made an order reciting that 'it appearing to the satisfaction of the court, from two telegrams offered in support of said motion, that it is to the best interests of the parties to this action that said sale be postponed, ordered that the sale heretofore ordered to be made by the receiver in this action on the 20th instant be, and the same is hereby, continued and postponed until the 24th instant, at one o'clock p.m.' A notice of the change of the date of sale was ordered published in the Idaho World. In accordance with the terms of the decree as modified and the notice of sale, the receiver offered the property for sale at the time mentioned. The highest bid of the appellee was $10,000. D. E. Coughanour, one of the defendants in the suit, bid $15,000, whereupon the property was declared sold to the latter. The decree for sale, and the receiver's notice of the sale, required that the property should be sold 'to the highest and best bidder for cash, lawful money of the United States. ' The purchaser was not able to pay cash. He testifies that he told the judge that he wanted 48 hours in which to go down to Boise and get the money and pay for it, and that Hawley, his attorney, gave him 15 minutes in which to raise the money. Judge Richards, who was the presiding judge of the district court in which the action was pending, testifies: 'The court took a recess pending the time the sale was being made, and when the property was knocked down I walked back into the court room. Mr. Coughanour immediately came in, and stated that he must have thirty days' time in which to make the payment on his bid. I told him I could not consider any application made in that way; that the receiver was ordered to sell the property to the highest bidder for cash. I stated, further, that, if he would make such a payment as would show his good faith, a proper order could be made for an extension of time on the balance. He said he did not have a dollar. I informed him then that I could do nothing further than to require the receiver to comply with the order, and sell the property, but before anything was done I would send for his counsel, Mr. Hawley, so he could advise Mr. Coughanour as to what his rights were. This ended by conversation with Mr. Coughanour. * * * I sent the sheriff for Mr. Hawley, who was his counsel of record. In a few minutes he came in, and I explained the matter to him as I have previously stated in my conversation with Mr. Coughanour, and informed him that unless he had some good reason to show why the order of sale should not be complied with I would direct the receiver to obey that order at once. Mr. Hawley said that he thought the court was perfectly right, and he had nothing to ask, and thereupon I directed the receiver to comply with the order of sale. ' The receiver, in his report of the sale to the court, referring to this transaction, says: 'Upon demanding the money for the sale, Mr. Coughanour said that he did not have the money, but would try to raise it in a few days. ' No further action appears to have been taken by Coughanour to complete the purchase of the property, and accordingly, on the same day, and shortly after this attempted sale, the property was again offered for sale, and sold for the sum of $4,500 to A. H. Boomer, who was the only bidder. On the same day the receiver conveyed the property to Boomer, and on the next day Boomer conveyed the property to Grayson, the appellee. The purchase price of the property was paid to the receiver by R. R. Grayson, the appellee, who thereafter, on the 30th day of December, 1896, made application to the United States government for a United States patent for the several mining claims included in said property, and on July 10, 1897, patents were issued to him accordingly. For the purpose of quieting the title thus acquired by the appellee, the present action was commenced.

Andros & Frank, for appellant.

W. E. Borah, John Garber, and Joseph B. Garber, for appellee.

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

MORROW Circuit Judge, after stating the facts as above, .

It is contended on behalf of the appellant that the circuit court erred in finding that the district court of the Third judicial district of Idaho had jurisdiction to make and enter the decree and order of sale of November 16, 1895. This contention is based upon the claim that the decree of the district court of May 5, 1890, was a final decree, and...