Townsend v. Beatrice Cemetery Ass'n

• Decision Date: 02 May 1905
• Docket Number: 2,090.
• Citation: 138 F. 381
• Parties: TOWNSEND v. BEATRICE CEMETERY ASS'N.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F. 381

TOWNSEND v. BEATRICE CEMETERY ASS'N.

No. 2,090.

United States Court of Appeals, Eighth Circuit.

May 2, 1905

Richard S. Horton, for appellant.

Ernest O. Kretsinger, for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

PHILIPS District Judge.

The appellee, Beatrice Cemetery Association, a corporation of the state of Nebraska, filed its bill in equity against appellant, W. J. Townsend, alleging, in substance, that it owned certain lands described, platted into blocks and lots for the sole purpose of being used as a cemetery, and not with a view to profit; that a large number of bodies had been buried therein; and that it was improving and beautifying the whole premises, to be used for the purpose of the burial of the dead. The bill alleged that in March, 1899, the defendant therein recovered a judgment in the United States Circuit Court at Omaha, Neb., against said association for the sum of $5,082.66, and $64.40 costs; that the defendant had filed a certified transcript of said judgment in the office of the clerk of the district court of Gage county, Neb., in which the cemetery lots are situated; that the defendant claims to have a judgment lien upon the unsold lots and blocks in said cemetery grounds, and was threatening to cause execution to issue upon said judgment against said lots, to sell them to satisfy said judgment. The bill alleges that said property under the laws of the state of Nebraska, is exempt from sale under execution to collect said judgment, and that the action of the defendant in filing said judgment, and threatening to enforce the same as a lien on said land, casts a cloud upon the title. The bill prays to have said cloud removed and for all proper relief. The defendant below made answer to this bill, which is not material to be recited, as the case on appeal depends upon the cross-bill hereinafter mentioned. In its cross-bill the defendant alleged the ownership by the cemetery association of the real estate described in the bill of complaint; that only a part of said property is used as a burying ground, and a portion thereof is leased by the complainant for agricultural purposes. It then sets out the recovery of the judgment against the association, and alleges that it is a lien upon the property aforesaid. The cross-bill further alleges that it was adjudicated by the said court in the action in which the said judgment was recovered that the indebtedness represented by the judgment grew out of a loan of money by said defendant, Townsend, to said association which said sum of money was obtained and used by said association to pay an indebtedness which it created in the purchase of said land. The cross-bill prayed that said judgment be declared to be a lien upon certain portions of said lands, and that the said association be enjoined from selling and disposing of any part of the same. It further prayed that a receiver be appointed to collect the proceeds from the sale of all lots in the west 40 acres of said property, and for other proper relief. To this cross-bill the complainant below made answer, putting in issue the material allegation in the cross-bill; specifically denying that the land on which the lien is sought to be enforced is used for agricultural purposes, further than to allow the sexton, who is employed by the association at a salary of $200 per year to use the grass and crops which he raises thereon in part payment of this salary; alleging that such...