Morrison v. Marker

• Decision Date: 10 April 1899
• Docket Number: 12,651.
• Citation: 93 F. 692
• Parties: MORRISON v. MARKER et al.
• Court: U.S. District Court — Northern District of California

93 F. 692

MORRISON v. MARKER et al.

No. 12,651.

United States Circuit Court, N.D. California.

April 10, 1899

John E Richards and Louis P. Boardman, for complainant.

Deal Tauszky & Wells, for defendants.

MORROW Circuit Judge.

The character of this suit is in controversy. The complainant contends that it is a suit in equity to remove a cloud and quiet the title to certain real estate. The defendants contend that it is in the nature of a creditors' bill to set aside a fraudulent conveyance, and is a personal action. The question is deemed by the parties to be material in determining whether the court has obtained jurisdiction over the defendants by the service of process in the action. The complainant is a citizen of the state of California, and a resident of the Southern district. Both of the defendants are citizens and residents of the state of Nevada. The property involved in the action consists of certain real estate and water rights located in Lassen county, in this district. The defendants were served with an order to appear, plead answer, or demur to the bill of complaint, under the provisions of section 8 of the act of March 3, 1875 (18 Stat. 472), which provides:

'That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such assent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there by; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. * * * But said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district.'

It appears from the bill of complaint that, prior to the year 1889, the defendant P. N. Marker and one Charles A. Merrill were in possession of certain real property, water rights and premises in Lassen county, in this state. A controversy arose between them in relation to their rights and interests in the property, and on February 20, 1889, Merrill brought suit against Marker in the superior court of the state in and for the county of Lassen, to determine such rights. The suit was transferred to this court, and resulted in a judgment and decree ordered on July 27, 1891, in favor of the defendant Marker. 47 F. 138. A decree in accordance with the order was entered on September 5, 1891. To defend this suit, Marker entered into a contract with John F. Alexander, an attorney, on the 5th day of May, 1889, wherein it was agreed between the parties that Alexander would render professional services in defense of the suit, and at its termination Marker would sell the real property, water rights, and premises, or otherwise realize money thereon, out of which he would pay Alexander the reasonable value and compensation for his legal services, counsel, and advice. It is alleged that Alexander fully performed the services, in accordance with the terms of the contract, between the 5th day of May, 1889, and the 1st day of February, 1891. On the 19th day of May, 1891, Alexander died, at Riverside, in this state. At that time, he appears to have completed his professional services in the case, although the decree of the court in the suit in which he was employed was not entered until some months later. On the 3d day of December, 1895, Mrs. R. H. Hickman was appointed, and qualified, as administratrix of the estate of Alexander, and on the 3d day of February, 1896, she, as such administratrix, commenced an action in the superior court of California in and for the city and county of San Francisco to recover from Marker the value of the services rendered Marker by Alexander in the case of Merrill v. Marker, for necessary expenses incurred therein, and for other legal services rendered by Alexander. One week after the commencement of this action, to wit, on the 10th of February, 1896, and while the suit was still pending, Marker conveyed all the said real property, water rights, and premises in Lassen county to his attorney, B. F. Curler, by a bargain and sale deed. It is alleged that this deed was made by Marker for the purpose of hindering, delaying, and defrauding the plaintiff in said action out of the just debts and demands alleged and sought to be recovered therein, and to avoid the payment of his indebtedness with respect to the contract for services made with Alexander. The deed from Marker to Curler was duly recorded in the records of Lassen county. Mrs. Hickman died on the 26th day of June, 1896, and before the termination of the suit instituted by her as administratrix. The complainant herein, William A. Morrison, was thereafter, on the 21st day of July, 1896, appointed administrator of the estate of Alexander, and on the 11th day of September, 1896, was duly substituted as plaintiff in said action. Thereupon he prosecuted the suit to a judgment, which was entered on October 14, 1896, against P. N. Marker, for the sum of $5,683. Complainant caused execution to issue upon his judgment on January 19, 1897, and levy to be made upon the property in Lassen county, which property was sold at sheriff's sale on February 27, 1897; and at that sale the complainant purchased the right, title, and interest of Marker in and to the property, for the sum of $4,700. The property was not redeemed, and on the 17th day of June, 1898, the sheriff issued to complainant a bargain and sale deed for the same, under which complainant claims to be the lawful holder and owner of the said real property, water rights, and premises, and to be entitled to the possession thereof. It is alleged that Marker is wholly insolvent, and unable to pay his debts; that there is no other property in the state from which the judgment can be recovered than that conveyed by deed from Marker to Curler on February 10, 1896; that the defendant Curler knew the fraudulent character of the deed from Marker to him; that he has not transferred or conveyed any interest in said property purported to be conveyed to him by said deed; and that the said deed is now a cloud upon complainant's title to the said property. Complainant asks for a decree declaring the deed executed by Marker to Curler to be fraudulent and void, and that it be canceled and annulled of record; that complainant be adjudged to have a...