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Opinion of the Court.

But this disposition of the legal prior encumbrance is a very different matter, and comes to a very different result from that of permitting the enforcement of it, pendente lite, without the leave of the court. The rights of the several claimants to the state or fund is then settled, and the purchase under the decree can be made with a full knowledge of the condition of the title, or charges to which it may be subject.”

So, in Heidritter v. Elizabeth Oilcloth Co., 112 U. S. 294, wbich was the case of a sale of property under process from a state court while it was in the actual possession of a District Court of the United States. When the sale took place the property had passed out of the possession of the Federal court and there was no actual disturbance of such possession. Nevertheless this court held the sale to be void, under the doctrine of Wiswall y. Sampson, saying: “The same conclusion must prevail here; for, although the sale under the judgments in the state court was not made until after the property had passed from the possession of the District Court by delivery to the purchaser at the sale under the decree yet the initial step on which the sheriff's sale dependedthe commencement of the proceedings to enforce the mechanics' lien, asserting the jurisdiction and control of the state court over the property sold—took place when that property was in the exclusive custody and control of the District Court; and by reason of its prosecution to a sale, was an invasion of the jurisdiction of that court. No stress is laid on the fact that notice of the proceeding, by affixing a copy of the summons upon the building, wbich was required by the statute, could only be made by an actual entry by the sheriff upon the property, to that extent disturbing the possession of the marshal, because the same result, in our opinion, would have followed if no such notice had been required or given. The substantial violation of the juridisction of the District Court consisted in the control over the property in its possession, assumed and asserted, in commencing the proceedings to enforce against it the lien claimed by the plaintiffs in those actions, prosecuting them to judgment and consummating them by a sale. The principle applied as in Wiswall v. Sampson, ubi supra, must be regarded as firmly established in the decisions of this court. It

Opinion of the Court.

has been often approved and confirmed. Peale v. Phipps, 14 How. 367; Hagan v. Lucas, 10 Pet. 400; Williams v. Benedict, 8 How. 107; Pulliam v. Osborne, 17 How. 471 ; Taylur v. Carryl, 20 How. 583; Yonley v. Lavender, 21 Wall. 276; Peoples' Bank v. Calhoun, 102 U. S. 256; Barton v. Barbour', 104 U. S. 126; Covell v. Heyman, 111 U. S. 176."

We are not aware of any decision of this court modifying the rule laid down in these cases.

To the same effect are Walling v. Miller, 108 N. Y. 173; Porter v. Kingman, 126 Mass. 141; Dugger v. Collins, 69 Ala. 324; Thompson v. McCleary, 159 Penn. St. 189; Ellis v. Vernon Ice, Light and Water Co., 86 Tex. 109; High on Receivers, 3d ed. 141; Kerr on Receivers, 2d ed. 177.

In view of what has been said in the adjudged cases, it is clear that as between the parties to the original cause the title to the real estate in question was bound from the filing of the cross-bill of Mrs. Hitz; and that her appeal, with supersedeas, from the decree of the General Term preserved her right to have this court determine the whole cause upon the merits, as from the commencement of her suit and as between her and the parties hostile to her claim. It is also clear, under the authorities, that if Tyler while holding as receiver had, in a separate suit against Sarah L. Crane, obtained a decree for its sale under the deed of trust, no title would bave been acquired by the purchaser at such a sale. Still less could any title be acquired under a sale at public auction by Tyler, acting in his capacity as private trustee—the property being at the time in his possession as receiver in another cause to which he was a party, and which bad, at the time, been removed to this court by appeal with supersedeas. As receiver he held the property for Mrs. Hitz as well as for Jenks, and he could not throw off the responsibility attaching to him in that capacity, and act, pending the appeal, simply as a private trustee under the deed from Sarah L. Crane.

But it is said that the decree of the General Term must be construed as authorizing Tyler as trustee, in his discretion, to sell the property while in his possession as receiver after the appeal from that decree by Mrs. Hitz had been perfected and

Opinion of the Court.

a supersedeas bond executed and approved. A complete answer to this suggestion is that Tyler sought no such relief at the hands of the court. He asked no affirmative relief. He only desired that the court should not restrain him by injunction from acting under the deed of trust.

The words in the decree, “and he [Tyler) is hereby appointed receiver with power, until a sale shall be made under the said deed of trust, to take and hold possession of said real estate and premises, and to rent and manage the same, and to collect the rents and profits and apply the same to the payment of taxes, insurance and any proper expenses ” did not confer any direct authority on Tyler, as trustee, to sell the property.

The court, having recited in the decree the allowance to Mrs. Hitz of an appeal, knew that such allowance removed the whole cause to this court, Ridings v. Johnson, 128 U. S. 212, 218; United States v. Rio Grande Dam and Irrigation Co., 184 U. S. 416, and that this court could determine, at least as between the parties, whether the deed of trust to Tyler was a valid instrument so far as it affected the rights of Mrs. Hitz. It knew that one of the questions to be determined upon her appeal was as to Tyler's right to proceed under that deed. We should not, therefore, interpret the words referred to as intended to authorize, much less direct, Tyler, the receiver for all the parties and the representative of the court, to proceed in his private capacity as trustee for one of the parties to sell the property outright without any special order or direction to that effect. Neither Tyler nor Jenks, by their pleadings, asked for any such direction or authority from the court. The words“ until a sale shall be made under said deed of trust,” reasonably interpreted, meant no more than that the power of Tyler as receiver to take and bold possession of the property, for the purposes designated, should continue until there had been such a sale under the deed of trust as could properly and legally be made, and such as would give the purchaser a good title. By dissolving the injunction—which was a matter of judicial discretion—the court, in effect, declared nothing more than that it would not, by injunction, restrain the trustee from doing what he might rightfully do under the deed to him. It did not, we must assume,

Opinion of the Court.

intend to direct or authorize a sale by the trustee, whereby the right of Mrs. Hitz to have a final determination, upon her ap' peal in the original cause, as to the binding force, as betwei' the parties, of the deeds purporting to pass her interest in the property, would be overreached or defeated.

Other questions were discussed at the bar, but they do not require to be specially noticed.

In our judgment it must be held: 1. That the deeds which Mrs. Hitz sought by her cross-bill to have set aside are to be deemed valid and enforceable instruments, it having been so adjudged in Hitz v. Jenks, 123 U. S. 297. 2. That the sale by Tyler as trustee, on the 26th day of March, 1884, while holding possession of the property as receiver, and when the suit to which he was a party was pending here upon appeal with supersedeas, conferred no title upon Jenks as against Mrs. Hitz. 3. That as no sale has been made under the deed from Sarah L. Crane to Tyler, trustee, which would bind Mrs. Hitz, she is entitled in this suit to redeem the property by paying such sum as may be due on account of the debt to secure which that deed was ex. ecuted--that sum to be ascertained by an accounting in the court of original jurisdiction, and the amount of all rents collected and all sums expended in the preservation or protection of the property to be taken into consideration.

It results that the decree of the Supreme Court of the District of Columbia dismissing the bill in the present suit, and the decree of the Court of Appeals affirming that decree, were both

erroneous.

The decree of the Court of Appeals of the District is reversed,

and the cause remanded to that court, with directions to reverse the decree of the Supreme Court of the District, and for such further orders in each court as will be in conformity with the principles of this opinion.

MR. JUSTICE BREWER dissentod.

Statement of the Case.

TALBOT v. SIOUX CITY FIRST NATIONAL BANK.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 164. Argued March 17, 18, 1902.-Decided April 14, 1902.

The defendant in error moved to dismiss the action on the ground that no

Federal question was decided by the Supreme Court of Iowa. Held, that the motion should be overruled, as the plaintiff explicitly based his right of action on Rev. Stat. $$ 5197, 5198, and as the judgment of the trial court, and that of the Supreme Court of the State, denied such

right, and this court therefore has jurisdiction. In these statutes relating to illegal interest, it is the interest charged, and

not the interest to which a forfeiture might be enforced that the statute regards as illegal, and if interest greater than the legal rate is charged, it may be relinquished, and recovery had of the legal rate.

This action was brought by the plaintiff in error in the District Court of Iowa, in and for Woodbury County, under section 5198 of the Revised Statutes of the United States, to recover twice the amount of interest alleged to have been due the defendant by the plaintiff on account of certain transactions had between it and the plaintiff. The District Court gave judgment against the plaintiff, and the Supreme Court of the State affirmed the judgment. The Chief Justice of the State allowed this writ of error.

The defendant in error was at the time of the transactions between it and the plaintiff a national bank. Plaintiff did business with it from January 1, 1886, until March, 1890, the instances of which are detailed in a pleading which occupies fifty-six pages of the record. During that time deposits were made by plaintiff with the bank, drafts were drawn by him, and bis own and the promissory notes of others were given to the bank. Finally the transactions culminated according to the petition as follows:

“That on or about the 15th day of March, 1890, all of the indebtedness evidenced by said charges, account and notes then claimed by defendant against plaintiff was incorporated into

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