National Nickel Co. v. Nevada Nickel Syndicate

• Decision Date: 14 October 1901
• Docket Number: 693.
• Parties: NATIONAL NICKEL CO. v. NEVADA NICKEL SYNDICATE, Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

112 F. 44

NATIONAL NICKEL CO. v. NEVADA NICKEL SYNDICATE, Limited.

No. 693.

United States Court of Appeals, Ninth Circuit.

October 14, 1901

This case is brought into this court upon writ of error to reverse the judgment of the United States circuit court for the district of Nevada, entered in favor of the defendant in error in an action in ejectment. 106 F. 110. The plaintiff in error was the owner and in possession of certain lands and mining claims situated in the state of Nevada. This property was mortgaged to the defendant in error. In a foreclosure suit on said mortgage a decree was entered on August 12 1899, directing the sale of the property by a special master duly appointed for that purpose. Nevada Nickel Syndicate v National Nickel Co. (C.C.) 96 F. 133. On August 15, 1899, a certified copy of this decree of foreclosure and sale was personally served upon the managing agent of the plaintiff in error and upon its attorney. This decree was erroneously drawn, in that it followed the provisions of the state statute with respect to the time of advertisement, requiring publication for 20 consecutive days, instead of the provisions of the United States statute, which directed publication once a week for four weeks. The property was advertised for sale in accordance with the decree, and the sale made on December 9, 1899; the defendant in error becoming the purchaser of the property, and receiving from the special master a certificate of sale. The sale was in due time confirmed by the court, after notice to the plaintiff in error, and, no redemption of the property having been made within the statutory period, the special master on the 3d day of August, 1900, executed a deed of the property involved to the defendant in error, in conformity with said decree of foreclosure and order confirming said sale. In the meantime on December 13, 1899, the defendant in error had been put in possession of the property by a writ of assistance. The plaintiff in error brought this suit in ejectment against the defendant in error on September 12, 1900, to recover possession of the property. The defendant in error, in its amended answer, sets up as a defense to the action the decree of foreclosure and sale above described; the sale of the property as made by the special master appointed by the court after due notice to the plaintiff in error; the conveyance of the property by the special master to the defendant in error by deed of conveyance duly acknowledged, after the period for redemption had expired; the application of the defendant in error to the court for a writ of assistance after notice to the plaintiff in error that such application would be made; the hearing of the application by the court; the action of the court ordering the writ to issue, and the execution of the writ; the ejection of the plaintiff in error from the premises, property, and real estate described in the complaint in the present action; and the entry and possession of the defendant in error. To this amended answer the plaintiff in error interposed a demurrer on the general ground that the facts stated in the answer did not constitute a defense to the action, and demurred specifically to that part of the answer relating to the provisions of the decree providing for a writ of assistance, the action of the court in issuing the writ, the ejection of the plaintiff in error, and the entry and possession of the defendant in error under said writ. The special demurrer is placed upon the ground that the defendant is not entitled to plead or set up an equitable defense or a right in equity as a defense to the action. The cause proceeded to trial, resulting in a judgment in favor of the defendant in error. Plaintiff in error now seeks to reverse this judgment. The assignments of error are directed to the action of the lower court in overruling the demurrer of the plaintiff in error to the amended answer of the defendant in error, and to the admission in evidence against the objection of the plaintiff in error of the following documents, to wit: The order confirming the sale as made by the special master under the decree, the duplicate certificate of sale, the writ of assistance, the affidavit upon which the same was granted, the return of the United States marshal thereon, and the deed executed and delivered to the defendant in error by the special master, conveying to the defendant in error the property described in this action. These alleged errors are all based upon the proceedings had pursuant to the provisions of the decree directing the special master, before making the sale of the property, to post and publish notices of the sale for the period of 20 days, instead of for the period of 4 weeks, as required by the act of March 3, 1893 (27 Stat.751).

G. W. Baker and T. V. Cator, for plaintiff in error.

W. E. F. Deal and Edmund Tauszky, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge, after stating the foregoing facts, .

The demurrer to the answer was properly overruled. The general rule that in actions in ejectment in United States courts the strict legal title prevails, to the exclusion of an equitable defense, as stated in Hickey v. Stewart, 3 How. 750 11 L.Ed. 814, and Foster v. Mora, 98 U.S. 425, 25 L.Ed. 191, is subject to certain well-defined exceptions. One of these is the defense of an equitable estoppel. This defense was sanctioned by the supreme court of the United States in Kirk v. Hamilton, 102 U.S. 68, 26 L.Ed. 79, and in some of its features that case is like the present one. The action was ejectment brought in the circuit court for the District of Columbia in 1872 by Kirk to recover possession of certain lots of land in the city of Washington. In 1859 a suit in equity had been commenced against Kirk and others to obtain satisfaction of several unpaid judgments against Kirk. The action resulted in a decree and an order in 1860 that the lots described in the bill should be sold, or so much thereof as might be necessary for the payment of the complainant's claim, and others who might come in as creditors of the said Kirk by petition in the manner and form required by law and the practice of the court. A trustee was appointed to sell the property, who sold one lot, the...