Short v. Hepburn

• Decision Date: 15 June 1896
• Docket Number: 491.
• Parties: SHORT et al. v. HEPBURN.
• Court: U.S. Court of Appeals — Fifth Circuit

75 F. 113

SHORT et al. v. HEPBURN.

No. 491.

United States Court of Appeals, Fifth Circuit.

June 15, 1896

M. L Morris and W. M. Crow, for plaintiffs in error.

W. S Simpkins, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and SPEER, District judge.

PARDEE Circuit Judge.

The first assignment of error complains of rulings on a plea to the jurisdiction of the court and on a plea of lis pendens. The suit was instituted by the statutory receiver of the Merchants' National Bank of Dallas, and the circuit court had jurisdiction to entertain the suit, without reference to the citizenship of the parties. Price v. Abbott, 17 F. 506; Stephens v. Bernays, 41 F. 401; Gibson v. Peters, 150 U.S. 342, 14 Sup.Ct. 134. The pendency of a suit in a state court is not necessarily a bar to a suit in the United States court between the same parties, involving the same issues. Stanton v. Embrey, 93 U.S. 548; Gordon v. Gilfoil, 99 U.S. 168.

The second, third, and fourth assignments of error charge the erroneous admission of evidence showing a levy on the individual property of a partner under a judgment and execution against the firm. A question similar was before this court in the case of Fleischman v. Bowser, 23 U.S.App. 494, 10 C.C.A 370, and 62 F. 259; and the ruling in that case, adverse to the contention, disposes of these three assignments of error.

The next eleven assignments (the fifth to the fifteenth, inclusive) charge error in the admission of evidence as to the doings and transactions of James B. Simpson, which evidence tended to show that the deed executed July 21, 1891, conveying the land in controversy to Kenneth Cayce, was simulated and fraudulent, and that the said Kenneth Cayce, the grantee in said deed, and though whom plaintiff in error derived title, was a nonexisting, fictitious person, incapable of contracting, or of suing and being sued. The doors appear to have been opened very wide on these issues, and the trial court went to the very verge, if not beyond, in admitting evidence offered. As, however, the issues involved were somewhat novel, and the resulting questions of law far-reaching, there was no reversible error in the rulings complained of.

The main objection to the admission of the evidence was to the effect that as Simpson had conveyed to Cayce, and Kelly in good faith had acquired Cayce's title, proof of the transactions of Simpson subsequent to his conveyance was immaterial and irrelevant, not affecting Kelly. This objection wholly overlooks the issues as to the good faith of Simpson, and the existence of Cayce, as well as the direct issue tendered, that Kelly himself was a tool and confederate of Simpson in the matter of putting his property beyond the reach of creditors.

The sixteenth assignment of error is to the effect that the court erred in admitting, over the objections of plaintiff in error, certain copies of the following recorded instruments: Powers of attorney from Kenneth Cayce to M. L. Robertson, dated January 28, 1892, and acknowledged the same day at Dallas, Tex., before J. B. Simpson, notary public; and a deed purporting to be executed by Kenneth Cayce, per his attorney, M. L. Robertson, to U. F. Short, conveying all the land in controversy, dated March 2, 1892, and acknowledged May 23, 1892; and a similar power of attorney from A. B. Seegar to M. L. Robertson, dated December 21, 1891, and one from Frank Olin to M. L. Robertson, dated October 30, 1891, and one from Edgar Q. Alger to M. L. Robertson, dated August 2, 1891, all acknowledged before J. D. Simpson, as notary. The objection made to the admission of the certified copies of these documents is that they were not filed as evidence, and no notice was given that they would be offered as affecting the rights of the plaintiff in error; and, besides, they are immaterial and irrelevant. These documents were not offered as a part of the title of the plaintiff, but as bearing on the issue that the deed from James B. Simpson to Kenneth Cayce was simulated and fraudulent.

The seventeenth assignment of error is that the court erred in refusing to give to the jury the general charge in favor of William Kelly, plaintiff in error. The evidence upon the real issues of the case was conflicting, and the charge requested was properly refused.

The eighteenth and twenty-eighth assignments relate to the charge to the jury as given, and the refusal to charge as requested, in regard to the effect of an execution levied upon, and a deed of, land lying in Upshur county, Tex., by the sheriff of Camp county, Tex. The plaintiff in error requested the court to charge the jury to find for William Kelly, defendant and cross complainant, for so much of the tract of land in controversy as was situated in Upshur county. This the court refused, and charged the jury to the contrary, as follows: 'That the execution sale and deed by the sheriff of Camp county, Tex., conveys all the land in controversy lying in both Camp and Upshur counties. ' One of the titles relied upon by the plaintiff in the court below was derived from the proceedings in the suit of the Merchants' National Bank v. Simpson, Perkins & Co., in the circuit court of Dallas county, Tex., in which an attachment was issued February 20, 1892, addressed to the sheriff of Camp county, Tex., which was by him levied on the entire tract as lying in both Camp and Upshur counties. The judgment of foreclosure in that suit describes the land attached as lying and situated in Camp county, and the order of sale purports to follow the return of the sheriff on the attachment of the judgment of foreclosure, and is addressed to the sheriff of said Camp county. The levy and sale, as shown on the return by said sheriff, are of the property as described in the order of sale, and the sheriff's deed recites a sale of land lying and situated in Camp county, but describes the land by metes and bounds as described in the attachment levy and judgment of foreclosure. In regard to the levy by attachment, Rev. St. Tex. art. 160, reads: 'A writ of attachment shall issue directed to the sheriff or any constable of any county where property of the defendant may be supposed to be, commanding him to attach,' etc. And article 161 reads: 'Several writs of attachment may, at the option of the plaintiff, be issued at the same time or in succession, and sent to different counties. ' In regard to executions, article 2279 of the same Statutes reads: 'Where the execution of any writ in the nature thereof requires the sale or delivery of specific real or personal property, it may be issued to the county where the property or some part thereof may be situated. ' And article 2303 is: 'Real property taken by virtue of any execution shall be sold by public auction at the...