.. :.
·lUDfORTEB,. yol. 48.,.:.
(CircuCt coon. 8.r:{).Ohio, W.p. November L FeRAL AND STATB 1'R.lO'1'lOB....LI. Pl!l'ID1I1'I....PARTITION.
Rev:; St. Ohio, 115055, . the summonl h.. been llerved or publication made, the aotion i. :pending. so .. to charge third persons with notice , of its pendency. aDd, wbile p!8Dding, no interest ,can be acquired by third persons in the subject-matter thereof .. against plaintUr'.title," is a rule of procedure, and Dot a rule of property, 80 . . to be binding upen the federal courts iii suits for partition brought in Ohio. aUthe interestsin the as they shall be,determined in the final decree; and the fao1', tbat newparfle8' 'come in and eitsb'lish a right to part of tbe interest olaimed,by ofoomplaint to third persons .lP:fter of the and before the new.parties inter-:
I. LIS PlINDENS-PARTITION-ElI'lI'JlOT Oll' lUxIN$ 'NJlW PaTII!lB. A suit for partition is U.s pendens, from the time of serving tbe subpcena, .. tie
.. P",-TITION-NJlwPARTnlIl;Ih:lI'JlND.lNT-A1'ISWBB8 4l'1D <molll-BILL&.. .. When, in a suit for pB,J'titiqnbroughtby persons out o,f possession claiming by heirship a certain interest in'tbe landll,otberperlloris claiming part of lucb intllr· est are made .parties de!9dant, thllse la.ttilr lIIay set up ,tII,eir ol,"m by way swer, and c.ross-bills uUA"cessarYI any crQIIs-bills 1j.led for this purpose'willbe'constderedas'an!iW'ers, and th6 defendantll in poasession are not enti..' :tled to service of sU1)lIall$ issued thereon. ' . . .... . ;. " . SAM...cOMPBNs41JON . . " IMPROVJl¥1!1'I'!:s-,.CROss-BILL-1l'0LLOWI1'IG STATJI TIOL . , . , . FOR. .'1 ... ' . . · .
Plu.o-
.When; in a partition autt iDa federal. ooIJrt, title ·toanintorelt iD tbe landl is established by persons not in posllession, and .the defendanw wish to olaim compen'Iation for improvements, subh 'claim lUust be sllt'up by crOBs-bill; although the state ·ststutesprescribe a different practice, since ,the federal oourts do ,not follow the , state " L' ,B.lME-'-DECRBE-RECITING;FIl'IDI1'IGS.· . .. . '
",' . Wben, in a pa.rtitlon sfttut 'Pers.·onl'liot In 'pos.session havees.tablished title to... .... .c ertain interest In tlWl sby provinl' to a remote oWDer. the court toay permit the findings 11.8 to .beli' pedigl"etll.o bereeited in the.' decree when it deems , Buob a course prl)bablyll6Cenary to prevent turther qUElst,ion as to tbe rights of the parties, notwithstanding tbat equity !'uie d,eclares that nllitherany part of the pleadings, "nortbe report of any maSter, nor anypriorproceeding8 shlill be recited ·or .lated'ln tbe deoree.:!'· :"': i'" ",' , .. EQ11lTTPlU.CTjoa-:-QBlJlowotJ 1fOT
In a partitiOn suih f0l'J¥lal and teClbnical to, te,stimoDY will not be allowed astatren at the.heai'lnlr, when in faettbey were 'l1ot' then taken, but were ,i 6l'15t l'aiBed as. to tlleli:lQf __ brlllf iluQmitted after the l1.ll.&ril1r. and .. to the remainder when tl1.e settlement of tbedeCl'ee was under cUsol1Hion. All luoh ob'. . · jectionll will be oonsideNd _waived. , : ' ! ,
.R.\ls'"
4T.. HII.l.Bl1fq-W
.
. In Equity. Suit for partition oflahds. Henry T. Jihy, C.W.':Cbwen. Binlid.rdJImV,end 8. T. Orato}OJ'd. 06mplainants. '. ' " ,,'" ,., . 'iJi R. Harrislm, J. c. Harper, L. Lineol.n, for''defendants. :," Before JACK8oNandSAGE, JJ'. ' '.' '!
for
Utihsel 'ana'also a .written 'statement and brief on behalf of thedefen(liihitidri certain modifications desired by them. .... The first objection is to the statement in the introductory paragraph ofthe complainants' draft that "this cause came on to be heard at the
f. This :,.referel?-ee to the
()f)lie decree,' a
by complainants'
questions arising
131 of day of May, A; D. 1891." This statement is in accordance with the fact. The cause was heard on the 19th of May· Counsel for th'e defendanta asked 'leave 'fh' prepare and file a brief, and leave After abotit30days they filed a pripted brief of 236 The cause was taken under' consideration, by the court, and opinion, and filed on the 4thOf Counsel for the complainantS then prepared a draft of decree, and moved that it be .entered; Upon th,e urgent objection, of counsel: for the defendantS in thelb.atter was deferred: until such time early in the OctOber term as the ,court ,could give parties a hearing. Further' delay' then obtained by counsel for the defendants in possession, and the presentation of the draft to, the court thereby postponed until now. Meantime the path of the complainants was impeded by every obstruction which the ingenuity and learning of counsel for the defendants in could suggest, until there are wires in the grass, and knots, at every step. It is the purpose of the court, by its decree to make the' way clear,and to settle, 80 far as this court is' concerned, the questions a:1feady passed upon in this caUse, so as toput an end to . fUrt;herlitigatibn. ,'On the23d of June, ,1891, more tha.n a month after the actual hearing, Emeline E. Bird, Bailey J. Ely, and :M:ary Miller et al.were made defendants, and on th'e'15th and 16th of July they filed their answers and cross-bills, which have not yet been heard nor considered. The stl1tement of the dute of the actual hearing is inserted in that it may appear affirmatively that it occurred before these persons were made defendants. ,' The next oJ;)jectiCln to which we deem' itnecessary to 'refer specifically is to the setting'forth in the decree of the pedigree of the complainants and the not ill possession who claim as, co-tenants. It urged that the recital of these matters ofdetnil is contrary to equity rule' 86. 1 Putnam v. Day, 22 Wall. at page 67, however, recognizes that the decree" may proceed to state conclusions :offact as well as of law, and often does soforthe purpose of rendering thejudgment of the court more clear and The court regards this as Ii cause in which the decree should be so framed as to prevent further question or doubt as to the r(>spective rig-hts and interests of the parties, a.nd remove, as far, llS It can be done by the proceedings herein, every clOUd from the title. It therefore deems it proper that the findings be so set forth in the decree that neither in any future proceeding herein, nor in any future litigation, shall the parties or their privies be 'at liberty to reopen questions which have been heard arid passed upon. As ,to the correctness of the findings relating to pedigree, we do not propose to enter into details. The Qpinionof the court, filed' August
an
rule 86: "In drawing up decrees and'oreiers, neither the bill nor answer,nor other Pleadings',n,or anypatt.'ther,eof, n,or the re,p, ort,o.f anY-master, nor any other prior " proceedinJ, shall be recited or in the decree or order,; the decree and order shall begin, iJ,1 substance, liS follows: 'This cause came on to be heard (or to be furtiler heard, as the case may be) at'thiiterm, and was argued by and thereupon, upon CO/lllidllratiol/. it was adj\.l!lgect. and decreed as followa, vis.:' [Here blsertthe decree or order.] " '
lQ2
J'EDERAL REP01,1oTER,
vol. 48.
the claim :of the complainants and of the defendants not in possessiohthat)heyare heirs of the brothers and sisters of William Barr, pleadings and as shown by th.e testimony. The Sr., as setforth in decree expresses specifically. what is really incluq{jd in the general statement of the opinion. We will, however, refer toone matter upon which un objection is based, to-wit, that tracts 21, 22, and 23 are leaseholds, and ,that the fee is in the heirs of Mlirgaret S. Gunnison, who are not objectiQnis that the unknown parties in this cause. The answer to, heirs'ofM. S. Gunnison were made 'defendants while it was. pendipg in the superior cO,urt of Cincinnati, and ,before its removal to this court, and were served by pl1blication d,uly made in the Cincinnati COllJ!llercial Gazette, commencing on the 19th .day of January, 1887, and pontinuing aix conse.cutive ,veekly insertions, until and including the 23d' of Februllry, 1887. . .' " , The next objection is that between. the date oK, of the petition filed in. the superior court and the filing of the 'amended original bill to the original after the removal to this court, a number petition. in possession of distinetparcels of land conveyed the same by deedfl in fee-simple to persons who have not beel)., made defendants to the aiuendcd origInal bill, or in subsequent .pleadiJ:lgs. In the petition filed.in .the superior court\ the plaintiffs alleged owned an undivided fifth part of the p;remises; whereas in the ,ame,nded original bill the complainimts allege that the foul' original. plaintiffs owned onlyaI;}, undivid,ed tenth" and that the LobdeUs, ,who were not. made parties pIaintiff until the amended <1rigiIlll.lbill was filed 1 owned 8:Il undivided tenth, I,tis that until the amended qill was filed suit wits <?ulyas title of SaraIt l1c91askey'. Itu;1g, Marpus .Love, a;nd:Laura ]j}l#t the fO)1r . In t?is Rev. St. Ohio, which ret1da as. · .:., (ollows, . Cited,. IS . ' , ". . ' 1 " " '. , ..'... ' ' ;' "When, the sUll1rn9ns ,.\lelln periding so te,> charge thIrd perso¥s with pending. no interest can thereof, as the plaintIff's title. .. '-'. ,_'I
The propo,f!i.ttRn that uuqer thisip;royisioD, if it were in this the cause as to the interest of the plaintiffs [or ,partHian, is not well founded. "As against set forth in tpe, the not tlle, title claimed in the pleading, bu:t as finally determiped bytheadjudiqation of the court. The tion claimed is too narrow. It wQuld so limitthe law of lw pendens in its, application, t9 a partition caSe as to exclude froUl its operation every by the plaintiff inpiji interest iJ;It,I;leproperty petition, which could not have been the intention of the legislature. The to Code ,?f in s.1ate ofOhlO, does not apply 111 thIS court m a smt Ill'eqUIty, nor IS It a, rule ofpropetty)nsuchsenseasto,inake it, binuing here. Theyery essence ora partition is that, it shall dispose of all the interests in the ntiteestaite, and froID the date",of the servi¢e'ofthesubprena th,e.'
.!_ '
the action il$ plm,deI1C3'. and, persoIls, in the subject-matter, ', e,>f .
'.1
'j
,
);.'
,M'CLA$KEY V. BARR.
133
cause is ptndC1l8 to such extent that the purchase of any parcel of the entire tract is subject to the rights of all parties to the suit as determined by the decree of the court. "Conveyances Qlade pending a proceeding in partition will, like all other pendente lite conveyances, Le controlled by the decree and judgment in the partition case, as will also incumbranc,es made pendente lite." Bennet, Lis Pendens, § 155.. This we conceive to be. the true construction of the law of pendC1l8 in the state courts, for, in our opinion, section 5055 is not inconsistent with 8uch a construc:tion. Tp£l principles which govern ordinary cases invohdng onlytbe plaintiff's rights to the claim originally setup are quite different from those g<;>Verning partition cases, where the 8ubject-matterof the action.is the division of real estate between the rightful owners holding undivided interests, and where the court cannot make partition, or grant the relief prayed for in the bill, without bringing in all the ing. their several rights, and assigning to each his or her interest in the property. It follows necessarily that a fluit for partition is notice to every subsequent purchaser that the jurisdiction of the court has been complete partition, and that, as a matter of law, the invoked to court must .determine alld allot the interest, not only of the claimants, but also of any and all other persons who may be entitled; and the case becomes.lis pendens to protect.thedecree of the court, whatever it may be, as agail1stintermediate purchasers. They are bound, as matter of law, to know thatthe court has a.right to bring in new parties, or even to hold in abeyance certain interests until the heirs can be ascertained; and that thejurisdintion is invoked; not only to determine the rights of the .claim/+nt8, but Il1so the rigbtsofall persons intereflted in the subject-matter. The In:\\, ,of lis pe1J,dC1l8 affects a purchaser, as was said by Lord CRANWplWH in Bellamy v. Sabine, 1 De Gex& J. 566, 578, "not because it amoupts,to notice, but because the law does not allow litigant part.ie.s;to give tc! others, pending the litigation, rights to the propertyindisp.ute so as tQp.rejudice the opposite party." Ithas also belln held the doctrine operates in ca!>es where there is no possibilityoftlne· purr chaser haying notice of tbe pendency of the suit, it restsuponcoflsidr erations Qfpublic policy, not on presumption of notice. Newman v. Chapman, 2 Rand. 93. It is not material that the pleadings were amended, and other claims set up, after the service of summons in the state court,and after the l:1u,les to purchasers. ,above referred to. In ton v. Cofield, 93 U. S. at page 168, tbe supreme court say, speaking of purchasel'slitependente, that "they took the title subject to the contingencies of..the amendments that were made, and of everything else, not coram non judic.e, the, court might see fit to do in the caee." The original plaintiffs in the state court, as sale descendants and heirs of ton, claimed an undivided one-fifth part of the entire 161 4-100 acres partition. That was notice to the world described Wtheir tbat the heirs of Mary Grafton claimed, by virtue. of their heirship, one,. fifth 9f the ,entire property; and whether the plaintiffs were the only heirs, and alQne entitled, or whether others not then parties, or even were in tbp.t line. of heirsllip, is wholly immate.rial, as
134
FEDERAL <REPORTER ,
only onEl'osixthhas b$en'aH.6\'ved.: "'J' · , . '. ' tHs further contended that the case'is not ripe fordecrM as to those defendants in possession who have not been served with Bubpoona issued bi1lsfiled by Eobert Barret al., Robert Eldridge et al., upon the and Laura O. Henley d'.al. This objection leads to the inquiry whether it was necessary that be filed by those parties for the purpose of setti'ng uptheit'lnterests as co:tenants with the' eomplainants and the defendants inp0S$'(l!lsion;' As'stated above, every .co-tenant interested in the 'landsO'Oght to be partitioned must be made a party to the suit. andtne partition must be complete; that is to say, must include all the interests of all the co-tenants. It is not, in any true sense, an adversary proceeding. Rachco-tenant asks for of his portion, upon the undetstood condition that he allow;the allotment to every other co-tenant of his portion. In thi!:l respect a suit for partition is like a bill for an account,. in which,ifit turn out that the balance is in favor 01 the defendarrt,thecourt will give him a decree therefor; and it has been held that for'that reason thedefel1dant need pot file a crossbill, but may set up his statement of the accounts in:hifHlllswer. A suit for partition is also, in the'respect stated, like a bill for the specific performance of a contract; in which case, if the parties differ as to the terms of the contract, and that; question is decided in the defendant's favor, the court will compel complainant to perform the contract as thus established. The defendant in such case need not file a cross-bill, but may set up his version of the contract by way of answer. The cases which sustain this proposition are ndted under Election 1.56 of Langdell on Equity Pleading, and they proceed distinctly upon the theory that the court entertains such bills only upon the condition that the plaintiff will ,consent to the saIDe justice being rendered to the defendant that he asks for himself. They ate not distinguishable in this respect from bills in partition. When the complainabt in partition obtains a decree setting off to him his sha1'e,he secures all that he is entitled to, and it need not concern him what disPdsition shall be made of the residue of the land among his co-tenants. .That is ,their affair, and not his. In like is interested only as to his portion. There manner, each of the seems to be, then, no reason why cross-bills should be filed, or why there should be any service of proC?ess, excepting that which brings the defendants into court in the first instance. Why should the defendants in possession in this cause require that cross-bills be filed, and· they served, whenever a new defendant who claims to be a tenant in C<lmmon is brought into the case? All the title that these defendants in possession have, they hnve acquired by purchase. It has been found by the court to. amount to eleven-eighteenths of the entire tract. Neither the 'complainants nor the other defendants have thllt title.. It is true that the defendants in possesrefused to sion sought to retain the· remaining interests, which they never purchased, and to which they never were entitled, by claiming the benefit of their construction of· the statute of limitations, of the doetrines of
'is· also the circumstanee;'that,'althotlgh: ·Ofie-ftfth interest was' claimed;
t'. BA.ltR·.
135
laches, and of the presumption. of an ancient grant. But the court has found that all those claims were entirely without foundation, and that the defendants must stand alone upon their rights as purchasers. The contest as to the distribution of the remaining seven-eighteenths is exclusively between the complainants and the defendants not in possession, and yet the defendants in possession are proceeding in this cause as though every other party to the cause is to be regarded as adverse to them, and as though they may contest every movement made by these parties, whether it affects their interests or not. A cross-bill is only necessary where thereHer thereby sought cannot be afforded under bill and answer. The only prayer of the cross-bills' filed in this cause is for relief, which not only might be had under the bill and answers, but which, if the fact!' pleaded be established, must be granted, as a necessary condition of auy decree in the case, and without which the bill itself would be utterly. defeated. If, therefore, croRs-bills were ,necessary, the complainants and all the other defendants would be at the meroyof those defendants who happened to be in the position which the oross-complainants bear to their co-tenants., There is no by the method known whereby a defendant whose claim is not complainants can be compelled to file a cross-bill. He may, it is true, be reduced to the alternative of doing so, or of failing to obtain the reliet to which it would entitle him, but that is the utmost that can be done. If, therefore; the defendants in possession could have induced anyone of the cross-complainants to decline t061e across-bill, .and the cross-bill was necessary, they could have effectually.preventedtne further prosecution of the suit in partition, and,' so far as the jur.isdiction of this court is concerned, have prolonged indefinitely their own occupation of the premises, to the exclusion of those rightly entitled to share with them as co-tenants. This cannot be according to the irue course of equity pleading or practice. The authorities are in full accord with thE:) views above expressed. In Freem. Co-Ten., at 8ection 499, it is laid down as the law that when the defendants have an interest in the property as co-tenants it is incumbent on them, by their answer, to disclose tbellature and extent of such interest as fully as the plaintiff in his complaint is required to disclose the nature and extent of his interest. They become, as it were, seeking affirmative relief, Bnd bound by all the rules of pleading to eXhibit the facts upon which alone that reliet can be properly extended. An "action for partition," said the supreme court of California in Moren/wut v. Higuera, 32 Cal. 295, "under our statute, is 8Ui generis. The partif's namedin the complaint, whether as plaintiffs or defendants, are aU actors, each representing his own interest. Whether complainants or defendants, they are required to set forth tuBy and particularly the origin, nature, and extent of their respective interests in the property. This having been done, the interests of each or all may be put in issue by the others; and, if so, such issues are to be first tried and determined, and no partition can be made until the reapeotive interests of all the parties ,have been ascertained and .settled by a trial.»
136
FEDERAL REPORTER,
1'01: 48.
"Story, Eq. Pi. § 394, is authority for the 'proposition that, if a bill be and the defandant sist 1.1pen an ,ll.greeetll'el1t different froQlthatstated in the bill, and offer to perform the agreement as set forth by him, the old requirement that he should file a is not now necessary, because the court will ul.tU(;r such Circumstances, at his request,' if his statement Of the agreeniEnit found to be.·the true one, decree It sp\'lcific performance thereof l1sset up in the answer. So, also, it was held in Jennings v. IVebster,8 Paige, 503. that a cross-bill was not necessary to enable the defendant to avail himself of a set-off in a Joreelosure suit; such agreement should be setup in the answer to the original bill. In Coxe v. Smith, 4 Johns. Ch. 271, Chancellor KENT, in a case for partition, said that an equitable title l'night'lie setup by the defendants by answer, and that a cross-bill was ridt He further said that, if that could not be done, the result w()"uld only be ito let the cRu.se stand over until the defendants, sWeh of them as asked for: the recognition of their equitable title, cotild:file a cross-bill. But he held that the cross-bill was not necessary. ,'. Itt'German v. Machin, 6 Paige, 288, 290, Chancellor WALWORTH laid down' the law as follows:
inaa' for the specific'pei'formance of' an agreement,
Vesl, , 'TheSe authorities show, only that the defendants not in possession not required to file cross-bills, but that thedefen,dants in possession are tHe only parties in this cause who are really in default, and'in no position fo l!>e, pressing formal objections. Asis stated in Freeman ,at section 504, When compensation:for improvements is sought, the pleading should be by cross-bill. Every'One of the defendants in possession desires comithprovements. Notoneofthem;has'filed a cross-bill, or in position to present any claim for improvements for the consideratidn of the court. It is true that they propose to follow the course of practkeib the state lloUtts of Ohio as laid down in the statutes relating ttr partitiol1; but, while this court will' 'recognize all .rights secured by statutes of Ohid to tenants in common, it will not conform to the form and mode of securing those rights prescribed by those statutes. The right ma.ybe sUbstantially secured by such suitable methods as the flexibility of chancery proceedings will enable the court to adopt in conformity wHli'the practice of the federal courts. See Brine v. Insurance 627, and·!nsuranceCo. v. Oush'l1ll1n, 108 U. S. 61,2 Sup. Ct.dRep, 236, where iHs also said that there is no doubt of the power tif the federal court to auollt its own niades and methods for the enforcement of the rights giverl.,by the locailliw, but that,the particUlar, mode
. was wrong in supposing that a defendant, in a partition suit tn thlrs'cOtlrt; could norset up in his answer, as a defensp to the suit, the fact that be Was in equity entitled to premises of which partition was SO\lgbt: p.Y. the bill. Tpe dl:lfend,mt must. unquestiollabli proceed by l}iU, if. in addition to the denial of a decree for partition and a dismissal of the, bIll, .he seeks and affirmative relief 011 bis part by a decree for the to him of the legal title to:the whole premises, or if U discovery is necessary to establish his equitable defense;" citing Mitf.Eq. 1']. (3d Amer. Ed.)8l.:See; also, Fife v. Olayton, l3Ves. 546; Diuginson v. Clowes, 15
MICLASKEY V. BARR.
137
prescribed by the local law is not of the substance of the right. The mode or manner of ascertaining and securing the right belongs, so far as the federal court is concerned, to the domain of practice, and the power to regulate the practice in harmony with the laws of the United States and the rules of the supreme court is expressly given by stlitute to the circuit court. Rev· St. U. S. § 918. See,also, Allis v. Insurance Co., 97 U.· S. 144. The defendants in possession will not be permitted to file cross-bills setting up claims to improvements, excepting upon terms which will prevent further delays, or the further setting up of mere formal objec;:tions in this cause. will be required to consent that the cross-bills be treated as answers, as one of the conditions upon which their crossbills will be admitted to the files. The court may so treat them witho;ut consent. Equity looks through forms to substance, and determineaithe of It pleading by the a'''erments it o()Jltains. and not, bythll name gHrenit. Daniell, Ch.Pr. (5th Ed.) *355,; note 2; Oi'lWinnati \1'. (hmer01'l, 33 Ohio St. 336; Northman v. Insurance .co., 1 Tenri: ,Ch.' 312; A,rnold v. Moyer's, 1 Lea, 308. Calling the defendants' pleadings cross-bills did not make them anything ,inore than assertions oftbeir rights by Rnswer,on which, ifestliblished, relief would be granted without any cross-bill. Such other conditions will be imposedasshaU seem to the court to be proper and necessary. ., ; i The draft of decree by complainants' counsel makes no findings Ol order respecting improvements or rents, excepting to direct the master and the appraisers to make certain findings of fact. Counsel for the defendants in possession insist that the decree shall exclude from theappraisement all improvements made between the death of Maria BigelQw., the life-tallant,August 3,1860, and the date of the commencement of the suit by ihe complainants, and also by each cross-complainant, respect, ively, and· so limit the recovery of rents that they shall begin to run fl:om the date ofservice upon each defendant in possession, but that the question of excluding from the appraisement improvements prior to the death of Maria Bigelow, and subsequent to the bringing of the suit, shall be .left open to them for future argument and consideration, as well: as the question of the modification in their favor of the decree as to rents.' They insist upon the findings above .referred to', because they say they are· in accordance with the opinion on file, and, on the other hanti, thaLthey shall have all opportunity to apply fora future order as to rents and as to improvements. In other words, they wish to have the decree so framed as' to preclude any enlargement in favor of the complainllnls and the defendants not in possession, but so as 'to leave it open for enlargement in their favor. The court declines to grant this modest request. The court win give counsel on both sides equal opportunity to be heard with reference to improveml'mts and to rents, and both questions will be left open to be decided after the coming in of the reportoftheappraiseJiS and of them/lster. No argument was made at the hearirigupon' either question,but the court carefully considered both questions, and thus far sees no reason for modifying the rqlings as they.appearinthe·opin-
138
FEDlj:RA-LR;lfi;PORTER,
ion. These rulings, were madenpon a careful adjustmElnt pf the equities of the cause as they presented. themselves ,to the mind of the court. Should counsel fortha· defendants inposseasion in Copvillcing the court that the ruling with,reference to be more :Iibera!. in favor of the defend lints' in possellsion,it . :aswell be nndersteod 'now that the result will probably be a'radicAI change in the ruling as to rents, so as to make them more liberal to the complainants and to the defendants not in possef3sion. >This, itstr\kes us, wiWbe necessary.inorder to the b,alance of equities. By leaving these questidnsllopeo, we dOlJotjntend to be understood as at all disposed to change the rulings astbey appean .in the opinion, but·W<edo mean to be understood that, willing to., hear' IilxgUlnentupc)O one side upon those. questions, the, argument free UpWt the other sid\\l. There:is a150 submitted, by. connElel for. the defendants in possession, a <list of:objections to the tA'istimQJay:.w:hicb they present for allowance 8$ made 'On .the This listoovers 18 legal-cnptype-written pages. The' iinkjorityofthe objections ate 8S, are :waived if not made before'the hearillg, , See poane v. Glenn, 21 Wall. 33; York i Q>. v ·. IUirwi8 CBntral ,B. 00., 3. Wall. 107; Blackburn v. Crawford,S: Wall. ,17,5.: Almostiallthese are ,new to thll oourt.,and were not eveniSuggested at the hearing·. But counsel claim that they were taken in their brief, which was. prepared and filed after Tha.t.was tooJateforJQrmal objections,IWhich f!.re notreceived inJequity, unless: presented while the OpPol'tp.nity i3 yet open to the party: against whom,they are to correotthem, and have. his testimony, in d:ue form cat the hearing. But counsEll are in error in stating that the.objections now presented :werespecifiedin their brief. Under thehead"ofincompetency of the testimony, the;te jlJ a. discussion of the law of.evillence claimed to be, applicable to :the ca.use, beginning at page 55, and extending .teD .the bottom of page 7lil. The only specific objections to testimony are (1) to the deposition which was passed upon in theopiuion;i (2) to the declarations of J9hnBarr Grafton, testified to by. Mrs. Henley; (3) to the declarations of Jennette Allen; (4). tb ,the bill tiled by John Lobdell,and ,the answer of :Jamll6 Grafton· thereto in the case of Gra..fton v. Grafton; (5) fu the recitals in the various 'deeds introduced by the complainants; (6) to the Hydegenealogy; (7)ta:theloosescrlilipsof paper attached as exhibitll to the depQsitionof Mrs; Lobdell; (8) to the.exhibit from the land-office at Jackson; (9) to thereoeipts for legacies produced by Thomas .Gibson Barr at Columbus,; (il:0) to an, affidavit made. by Martha Reed before one Wash· ington Geer,a justice of the peaQe,; (ll) to the deposition of Robert BarI;{ of Iowai' as iii declaration;, (12). to the certificate. by the. cbance.ry cle:rk of Adams county,Miss., thaLhehad examill00.<theold probate records in' his office, and failed to find any record; of letters of administratioQupoti ;the estate"of Daniel Grafton, Sr., and Mary Grafton his wife, etc,;· (13) to the>record of the .case of Parsop& and Ely as not properly certified Under secmon,905 t Rev. St. U. S.; {li}> to the record of the will of Robert. B,arr, beenuse-not properly certified, (both of last oh-
PENNSYLVANtA R. CO'V.
R.
co.
139
jections fall within the adverse rulings in 21 Wall. and 3 Wall., cited abovei) (15) to the depositions of Sarah McClaskey. Sarah King, Mrs. Lobdell, Mrs. Henley, Robert Barr, of.!owa, Samuel Barr,of Pennsylvania, and Mary Brewster, as not competent under the terms of section 5242, Rev. St. Ohio, which does not apply in this cause; the competency of these witnesses being determined by section 858 of the Revised Statutes of the United Statesi and (l6) to two documents offered by counsel for the cross-complainants, Robert Eldridge et al., to-wit, the deed of Robert Bll,rr, of Wood county,and the receipt of Robert Barr, of Westmoreland county, for legaciel'. No rulings of the court were had upon any of these objections, excepting those to the deposition of Maria Bigelow, and to the documents which were produced. from the custody of Thomas Gibson Barr, of Columbus·. The. Jist presented by counsel for the defendants in possession will be rejected, and the court,rejecling aU formal objections, will recognize only the objections to competency specifically made in the brief; it being understood, however, that the objection to the deposition of Maria Bigelow, and to the papers produced by Thomas Gibson Barr, whichwere made at the hearing, will be .recognized. We have mnde such modifications of the draft of the decree presentedbycounsel for thecomplainantl:l as we· deem-necessary, and as so modified it will be entered. All further discussion in this cause will be postponed: until the coming up of thequestionfnvhich have been reserved for further consideration. The circuit judge concurs in this opinion.
PENNSYLVANIA
R. Co.
et
atf'.
ALLEGHENY VAL.
R. Co. et aZ.
(Circuit Court. W. D. Pen7Ul'/lwania. August 81, 1891.)
1.
RAILROAD MORTGAGES-FORECLOSURB-BALE FOB DEBT DUB-PRESERVATION LUNo," UNMATURED PART: . . .
O.
In a proper case, a C)()urt of- equity has '1I0W8/-'1O to mould its decree as to order a sale of mortgaged premises to satisfy tliat part. ofthe mQrtgage debt which l8 due, and the lien upon the mortglloged premises in the hands ot the P\ollchaser as to the unmatured part of the debt. 2. BAME-Bolms--CoLLECTlON OF UOUPllNS--REMEDIE&
matur.ity. the.bond.and each iu.t.er.,st cou.pon,at par, "aud,w.hen sopurcbased, eacb. and all of sllid. bonus and coupons are to be held by the said company. with all th$ rights tbereby given, and with all the benOftt of every security therefor. "Company P., having been obliged to purch:ase coupons, filed a bill before the maturity of .the. :bonds. Held, that the cOntract of purchase is to .be so construed as.to perthe .bondholders their mortgage lieu untU Company P. shall have tulllpelltormed its obligations accordJng to the tenor of its indorsement, and that In the mean' time its remedies upon purchased coUpOns must be kept within sucb limite· uwlll effect that object. S. B:ufll.
etc., eaCh: bond having an indorsement by Company P.,b1nding it to purchase
Company A. negotiated i1lll conpon bonds, secured by a mortgage upon its railroad,
.The eqUities of &11 tbe parties in interest being best subserved bv aule of the railroad,. under and sHbJectto the lien of he. 88i.d m.ortgage!'8 to the pJ;in.cip&1 . .. . · ... oftha bands thereby aeolii-el1, arid the pa¥ableaftoer the making ot tbe·aa1e, i\ was so decreed. .. J . ... . - ... . t.