United States v. Calcasieu Timber Co.

• Decision Date: 04 October 1916
• Docket Number: 2851.
• Citation: United States v. Calcasieu Timber Co., 236 F. 196 (5th Cir. 1916)
• Parties: UNITED STATES v. CALCASIEU TIMBER CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F. 196

UNITED STATES v. CALCASIEU TIMBER CO. et al.

No. 2851.

United States Court of Appeals, Fifth Circuit.

October 4, 1916

On August 20, 1907, a patent of the United States for a quarter section of land in Rapides parish, Louisiana, was issued to Martha E. Marler. On January 24, 1908, a bill was filed in the District Court for the Western District of Louisiana by the United States against the patentee for the cancellation of that patent on the ground that it was obtained by fraud and misrepresentation.

The cancellation of the patent was decreed in that case. While that suit was pending, and after the service of subpoena therein, as shown by the marshal's return, on the sole defendant therein, she executed a deed of conveyance to one Kirkpatrick of the land described in the patent. Through mesne conveyances the Calcasieu Timber Company acquired the claim of Kirkpatrick under the deed to him. The bill in this case, filed by the United States against the Calcasieu Timber Company and others, after averring that the fraud and misrepresentation of the patentee in obtaining the patent and the fact of the filing and pendency of the suit against her, were known to Kirkpatrick and to his grantee, who conveyed to the Calcasieu Timber Company after the decree in the suit against the patentee was rendered and recorded, that the plaintiff was in possession of the land described in the patent, and that the conveyances through which the defendant claims the land constitute a cloud on the plaintiff's title, prayed the cancellation of those conveyances, that the decree rendered in the suit against the patentee be decreed valid and of binding effect against the defendants in this suit, and that the plaintiff's title to the land mentioned be quieted. The answers of the defendants put in issue the allegations above mentioned, denied that process was served on the patentee in the suit against her, and set up the failure to file notice of the pendency of that suit as required by the Louisiana statute. The appeal is from a final decree dismissing the bill.

George Whitfield Jack, U.S. Atty., of Shreveport, La.

L. J Hakenyos, Nauman S. Scott, and H. H. White, all of Alexandria, La., and Laird Bell, of Chicago, Ill., for appellees.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

WALKER Circuit Judge (after stating the facts as above).

The dismissal of the bill was based upon a finding that there was no service of process on the defendant in the above-mentioned suit against the patentee for a cancellation of the patent. We are not of opinion that the evidence warranted such a finding. Assuming that that return was impeachable in this case, we do not deem it necessary to say more of the evidence of its falsity than that it was not so clear and unequivocal as is required to overthrow the return, supported as it was by the explicit and circumstantial testimony of the officer who made it and by other evidence of its verity. 32 Cyc. 517.

But the decree is not to be reversed if the evidence in the case was such as to require a dismissal of the bill. The bill was not maintainable if Kirkpatrick, through whom the timber company claims, was a purchaser of the land for value and in good faith, without notice of the suit pending against his vendor, the patentee, or of any infirmity in the latter's title. It was contended in behalf of the plaintiffs that Kirkpatrick had both actual and constructive notice of that suit and of the patentee's fraud and misrepresentation in obtaining the patent. We do not think that the evidence sustained the averments of the bill to the effect that Kirkpatrick actually knew of the pendency of that suit and of his vendor's misconduct, which was alleged therein. The evidence was such as to require a finding that Kirkpatrick was a good-faith purchaser for value, unless he was chargeable with constructive notice of the suit against his vendor.

The contention that he had constructive notice of that suit is sought to be supported by invoking the rule that a decree in an equity suit is binding upon one who purchases the property which is the subject of controversy from a defendant in the suit while it is pending and after service of process on the defendant vendor. Mellen v. Moline Malleable Iron Works, 131 U.S. 352, 9 Sup.Ct. 781, 33 L.Ed. 178; 2 Pomeroy's Eq. Jur. Secs. 633, 635. This contention cannot prevail if the Louisiana lis pendens statute, enacted in 1904, is applicable. That statute is as follows:

'1. That, on and after January 1, 1905, the pendency of an action in any court, state or federal, in the state of Louisiana, affecting the title, or asserting a mortgage or lien upon immovable property, shall not be considered or construed as notice to third persons not parties to such suit, unless a notice of pendency of such action shall have been made, filed or registered, in compliance with this act.

'2. * * * That the notice above referred to shall be in writing, signed by the plaintiff or his attorney, stating the name of the court in which the suit has been filed, the title and number of the suit, date of filing

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