US SUPREME COURT DECISIONS

In 1870, M., a citizen of Indiana, filed a bill in equity in the Circuit Court of the United States for the District of Nebraska against R., a citizen of Nebraska, to establish his right to real estate near Omaha to which H. set up title. Each claimed under a judicial sale against P. M. obtained a decree in 1872 establishing his title and directing R. to convey to him or, in default of that, authorizing the appointment of a master to make the conveyance. R. refused to make the conveyance, and it was made by a master to M. under the decree. The entire interest of M. came by mesne conveyances to W., a citizen of Nebraska. R. reentered upon the premises and set up the title which had been declared invalid in the decree of 1872. W. thereupon filed in the same court an ancillary bill praying that R. be restrained from asserting his pretended title and from occupying the premises, that he might be decreed to have no interest in the lands, that a writ of possession issue commanding the marshal summarily to remove R., his tenants and agents from the premises, chanrobles.com-red

Page 150 U. S. 402

that R. be perpetually enjoined from setting up his claims. R. demurred on the ground of want of jurisdiction by reason of both parties' being citizens of the same state. The demurrer was overruled, the defendant answered, and upon the pleadings and proofs, a decree was entered for plaintiff in conformity with the prayer in the bill.

Held:

(1) That the bill was clearly a supplemental and ancillary bill such as the court had jurisdiction to entertain irrespective of the citizenship of the parties.

(2) That the original decree not only undertook to remove the cloud on M's title, but it included and carried with it the right to possession of the premises, and that right passed to W. as privy in estate.

(3) That certain facts set up as to an alleged transfer by M of his interest to a citizen of Nebraska before filing his bill could not be availed of collaterally after such a lapse of time, and with no excuse for the delay.

(4) That the property claimed could be fully identified.

(5) That until R. should give notice that his holding was adverse to W., the latter was entitled to treat it as a holding in subordination to the title of the real owner under the decree of 1872.

The appellee, as a privy in interest and estate, filed the bill in this case for the purpose of carrying into execution a former decree of the court, rendered in 1873, against the appellant in favor of Oliver P. Morton, by which the latter's right and title to a certain parcel of land was settled and established and to which title and interest the appellee thereafter succeeded.

The proceedings in which the original decree was rendered were begun in 1870 in the Circuit Court of the United States for the District of Nebraska by Oliver P. Morton in a suit against Allen Root, the appellant, to establish his right to certain premises near the City of Omaha and to have the claim which Root asserted thereto declared a cloud upon his title. Both parties claimed the land under judicial sales previously had against one Roswell G. Pierce. The decree established the superiority of Morton's title and ordered that Root should execute a conveyance of the premises to him within a designated time, and upon his failure so to do, a special master appointed for that purpose was invested with the authority and directed to make such conveyance. Root did not appeal from this decree, which remains in full chanrobles.com-red

Page 150 U. S. 403

force and unannulled or reversed, but he refused to make the conveyance, and the special master thereupon, by deed, transferred the property to Morton.

Thereafter, in June, 1873, Morton conveyed an undivided half interest in the premises to James Woolworth, the appellee, and the other half interest to his brother, William S. T. Morton. Upon the death of the latter, his executors, under power and authority conferred by his will, transferred to Woolworth the other half interest in the premises. Being thus invested with the entire title, and Root having reentered or resumed possession of the premises, Woolworth filed the present bill against him, in the same court, to carry into effectual execution the decree which had been rendered against Root in Morton's favor.

In his bill, after reciting the proceedings under which Morton originally acquired title to the premises, the suit under which that title was established as against Root, and the conveyance to Morton under the decree of the court, Woolworth set forth his acquisition of the title and alleged that he had laid the property out into streets, blocks, and lots and made it an addition to the City of Omaha; that he had sold several of those lots, and that he had paid the taxes on all of the property since 1873; that he had remained in undisturbed possession from 1873 up to within a short time before the filing of the bill, at which time Root had assumed to take possession of the premises, or a portion thereof, by building a fence around the same and a house thereon, and in exercising other acts of alleged ownership over the property.

The bill further alleged that in reentering upon the premises, Root claimed no rights therein or title thereto except such as were asserted by him in opposition to Morton's right and title in the original suit; that his object in retaking possession was to induce parties to accept leases under him, and thereby drive the complainant to a multiplicity of actions to recover possession and reestablish his rights to the premises, and it was averred that,

"in order to carry the decree of this court made on the 8th of May, 1873, into

Page 150 U. S. 404

execution and give to your orator the full benefit thereof, it is necessary that it shall be supplemented by an order of injunction hereinafter prayed, and unless such injunction be allowed to your orator, such decree will be ineffective and your orator will be subjected to a multiplicity of suits in order to recover possession of the said premises from the parties to whom said defendant will lease the same. If left to himself, not only will the said defendant subject your orator to numerous actions for the recovery of the possession of said premises from many parties whom the said premises, and will induce to enter upon the same, but, as your orator is informed and believes, the said defendant threatens to, and unless restrained by the order and injunction of your honors will, institute divers actions in respect of the title of the said premises, and thereby vex, annoy, and harass your orator."

The bill further alleged that in the sheriff's deed to Morton under the original judicial proceedings against Pierce, the premises were described as follows:

"All that piece of land beginning at the northwest corner of section twenty-eight; thence south eight chains and five links; thence south eighty-five degrees twenty chains and two links; thence north nine chains and twenty links; thence west twenty chains to the place of beginning; all being in township fifteen, range thirteen east of the sixth principal meridian, in said County of Douglas,"

which presented an apparent obscurity of defect in the fact that the word east was omitted in the second call after the words "eighty-five," and that the defendant claimed that this defect was so radical as to afford no identification of the premises, and rendered the decree void; but the complainant averred that the sufficiency of that description was considered in the suit of Morton against Root, and that it was there held that the omission was no substantial defect such as prevented the title from passing and vesting in Morton.

The prayer of the bill was that the defendant be by order and injunction of the court enjoined and restrained from asserting any right, title, or interest in the said premises and from occupying the same or any part thereof or leasing or pretending to lease or admitting under any pretense whatever chanrobles.com-red

Page 150 U. S. 405

any party save the complainant into the said premises or upon the same, and from making any verbal or written contract, deed, lease, or conveyance affecting the said premises, or the possession thereof or the title thereto, and from excluding the complainant from said premises or any part thereof or preventing him from taking sole and exclusive possession of the same, and that by decree it might be declared that the said defendant has not, and never had, any interest whatever in the said lands, as had been already declared and adjudged in the former decree, and that a writ of possession issue out of the court, directed to the marshal, commanding him summarily to remove the defendant, his tenants and agents therefrom, and that the injunction, as prayed for, might be made perpetual.

To this bill the defendant Root demurred for the reason that the court had no jurisdiction because both complainant and defendant were citizens of the same state, because the bill was a proceeding in a court of equity in the nature of an ejectment bill, and because the complainant had a speedy and adequate remedy at law. The demurrer was overruled, the court basing its action upon the ground that the bill was ancillary or supplemental to the original cause of Morton v. Root, and was therefore not open to the objections taken against it.

Root then answered the bill, setting up the same defenses interposed by him in the case of Morton v. Root, and further alleged that the decree in that case was void because Morton and his attorney had practiced a fraud upon the court in concealing the fact that, in 1869, prior to the institution of that suit, Oliver P. Morton had transferred and conveyed the premises in question to his brother, William S. T. Morton, which conveyance had been duly recorded in Douglas County, Nebraska, so that Oliver P. Morton had no title when he instituted his original suit nor when the decree was rendered against defendant.

The answer further set up that the premises were so defectively described in the sheriff's deed to Morton under the latter's attachment proceedings against Pierce as to render chanrobles.com-red

Page 150 U. S. 406

the same ineffectual and inoperative to vest title to the premises in controversy. The defendant also claimed that he had been in open and adverse possession of the premises since May 1, 1869, and that the complainant's rights were therefore barred by the statute of limitations. He further alleged that the decree in the suit of Morton against Root was one simply to remove a cloud upon the title, and not to establish or confer any right of possession.

Upon pleadings and proofs, the circuit court rendered a decree in appellee's favor in conformity with the prayer of his bill. 40 F.7d 3. From that decree the present appeal is prosecuted. chanrobles.com-red

Page 150 U. S. 409