Remer v. Mackay

• Decision Date: 21 May 1888
• Citation: 35 F. 86
• Parties: REMER v. MACKAY.
• Court: U.S. District Court — Northern District of Illinois

35 F. 86

REMER v. MACKAY.

United States Circuit Court, N.D. Illinois.

May 21, 1888

O. F Woodruff, for complainant.

Fry &amp Babb, for defendant.

BLODGETT J.

This is a demurrer to a bill filed by complainant to remove a cloud upon the title to a track of land alleged to be owned by complainant situate in the state of Iowa. The substance of the case stated in the bill is that one Adam Remer was indebted to Duncan Mackay, the defendant, upon a promissory note, and they were both citizens and residents of the state of Illinois. Remer's wife in some way obtained title to the track of land in Iowa now in question. Defendant Mackay caused a suit to be brought against Remer and his wife, in the county in Iowa where the land was situated; the complainant, under the Iowa Code of Practice, stating in substance that Adam Remer was indebted to the plaintiff in the amount due on the note; that both defendants were non-residents of the state of Iowa, and that Adam Remer had purchased the track of land in question, for which he had paid the consideration, and had caused the title to be conveyed to his wife for the purpose of hindering, delaying and defrauding the creditors of him, the said Adam; and prayed an attachment and judgment against Adam as a non-resident debtor; and also prayed that Mrs. Remer should be adjudged to hold the title in fraud of Remer's creditors and in trust for Remer, and that the property should be subjected to the payment of his (Mackay's) debt. No personal service was obtained in any form upon either of the defendants, but constructive service was made by publication of notice, as prescribed by the Iowa statute in suits against non-residents; and in due time the case came on for trial. The record of the trial shows that the court 'having heard the testimony, found that the allegations in the complaint were true,' and rendered judgment against Adam Remer for the amount due upon the note, and costs of suit, and directed that a special execution issue for the sale of the land described in the plaintiff's complaint. A special execution was accordingly issued, and the land was sold. In due time the sheriff, after the expiration of the term given by the Iowa statute for redemption, made a deed to Mackay, the plaintiff in the Iowa case and defendant here. The bill in this case also avers that complainant purchased this land from Mrs. Remer, and that complainant, with no knowledge of the proceedings in said suit, sold said land and gave a warranty deed thereof, and complainant now brings this bill upon the ground that the deed so obtained by defendant, Mackay, under his said judgment, is a cloud upon the title of Mrs. Remer so acquired by complainant in good faith, and which complainant is bound by his deed of warranty to protect; and prays that defendant be compelled by the decree of this court to release whatever title he has apparently acquired by his said judgment, execution, and deed.

The demurrer to the bill proceeds upon several grounds. The first is that this court has no jurisdiction to adjudicate upon the title to property in another state, and especially has no jurisdiction to set aside or interfere with the judicial proceedings of the courts of a state. This is a proceeding in equity, and equity, as a rule, operates wholly in personam. If operates from doing some special act; and the general effect and scope of a decree in a court of equity is aimed at the volition or conscience of the defendant. This court having personal jurisdiction of the defendant in this case, can direct its decree upon him, and...