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law, while on the other side are the 14 insurance companies, who deny their liability to the Virginia-Carolina Chemical Company upon their policies of insurance.

Another exception taken to the bill is that the allegations made in it are inconsistent, having a double aspect. In the view that we take of this bill we must dissent from that position. It is true that there is a prayer in the alternative, and it is equally true that the prayer of the bill may be considered as to whether it is multifarious or not. It is a well-settled principle that, when the pleader is in doubt as to the kind of relief that the complainant should have upon the bill, he may frame the prayer in the alternative, so that the court may grant whatever relief he is entitled to upon the facts stated. Story, Eq. Pl. par. 42. There are a number of authorities cited in the brief of the appellee to sustain this position, but we deem it unnecessary to refer to or discuss them. To support this position we find in 3 Enc. Pl. & Prac. 364, a number of cases cited, which sustain the principle as laid down by Judge Story in his Equity Pleading. Mr. Justice Harlan, of the supreme court, announced in Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. 771, 28 L. Ed. 1141, "that the ends of justice must not be sacrificed to mere form or by too rigid an adherence to technical rules of practice."

It will be observed that we have so far disposed of all the errors assigned by the appellant, except the third, which states that the circuit court of the United States for the district of South Carolina can take no jurisdiction, either by original process or by removal, of the London Assurance Corporation, for the reason that the amount involved is less than $2,000, the jurisdictional amount of the United States court. It appears from the allegations of the bill that the London Assurance Corporation is one of 16 companies that issued policies of insurance upon the property of the VirginiaCarolina Chemical Company to the amount of $78,210. The twelfth paragraph of the bill alleges that by the terms of each of the insurance policies issued by the various companies upon the property described it was provided no company shall be liable under its policy for a greater proportion of any loss on the described property than the amount insured by each policy should bear to the whole insurance. This allegation of the bill, upon a demurrer to it, must be admitted as true; and, if true, it establishes such a relation between the 16 companies that insured this property as creates a liability, if the policies are valid, which can be better and more readily ascertained by a reference to a master to fix. For this reason it was proper that the London Assurance Corporation should be made a defendant to this bill, not only that the plaintiffs in this action, but all of the insurance companies who insured this property, should be protected in their rights from unjust and vexatious suits at law. It is a well-recognized principle in equity that a court of equity will entertain jurisdiction to prevent an unjust and unfair use of a resort to a court at law by a party which would deprive other parties of their just rights or subject them to vexatious suits. We are of the opinion that there is no error in the court below in awarding this injunction against the London Assurance Corporation.

We have now considered and disposed of all the assignments of error to the judgment of the court below. We fully concur in the able and exhaustive opinion of the learned judge of the court below, and find no error presented in the record.


(113 Fed. 6.)

DAVIS V. MARTIN, U. S. Marshal, et al.

(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,018.


Where a circuit court of the United States, in a suit for the foreclosure of a mortgage, has actually seized the property through its marshal, for the purpose of selling the same under the provisions of the mortgage, such court has jurisdiction of a suit by a third person, claiming ownership of the property, to enjoin its sale, as ancillary to the original suit, and regardless of the citizenship of the parties.1


Under the law of Louisiana, as settled by the decisions of its supreme court, a sale of real property of a decedent to pay debts of the succession, under a warrant duly issued therefor by the probate court having jurisdiction, extinguishes mortgages given by the deceased on the property, leaving mortgage creditors to look to the proceeds in the hands of the administrator.


Under the law of Louisiana, which requires land of a succession to be appraised by experts within one year prior to its sale under the warrant of a probate court, the failure to make such appraisal does not render the sale an absolute nullity, but is an irregularity only, which cannot be made the basis of a collateral attack upon the validity of the sale.


The fact that a deed to lands of a succession, executed by a sheriff on a sale made by him under a warrant from a probate court, is not filed for record until after the institution of proceedings by a mortgagee of the deceased to subject the land to his mortgage, does not affect the validity or effect of such deed as against the mortgagee, where it is left for record before he has actually seized the land; the law of Louisiana making it effective, as against third persons, from the time of filing, and not from its actual record.

Appeal from the Circuit Court of the United States for the Western District of Louisiana.

On the 1st of October, 1888, W. L. Wooten, describing himself as a resident of Caldwell parish, state of Louisiana, executed an act of mortgage upon the property herein in controversy, in favor of Henry Dickinson, of New York, to secure the payment of an indebtedness of $5,000, with interest thereOL from that date at 8 per cent. per annum until paid; the indebtedness thus secured being liquidated by the execution of a bond of even date, for the sum of $5,000, due October 1, 1893, to which were attached interest coupons, payable semiannually on the 1st days of April and October. This act was acknowledged by the maker before A. B. Hundley, clerk of the district court of Caldwell parish, on October 13, 1888, and the same was duly recorded in

Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.

the mortgage records of Caldwell parish on same day. W. L. Wooten having died, his widow was appointed administratrix of his estate on December 23, 1893. On July 17, 1894, the court granted an order, on application of this administratrix, filed same day, directing that a writ of sale issue as prayed for, directing the sale of all the property (consisting entirely of real estate) of the succession of W. L. Wooten, deceased, after 30 days' advertisement according to law. On September 8, 1894, the sheriff of Caldwell parish, by virtue of a commission issued to him pursuant to above order, exposed the property in controversy for sale at the court house door in Caldwell parish, and, the same failing to sell for cash, it was readvertised, to be sold on credit of 12 months, on 29th of December, 1894; at which last date it was adjudicated to I. I. Davis, complainant, for the sum of $2,000, for which he executed bond and security. On 3d of July, 1897, J. B. Watkins, M. Summerfield, and T. H. Chalkley filed their bill of complaint in the United States circuit court for the Western district of Louisiana, alleging themselves to be owners of the bond and interest coupons. heretofore recited; that all of them were due and unpaid; that Wooten had died; that his widow was administratrix of his estate, and tutrix of his minor children; prayed for the issuance of a writ of seizure and sale, and that the property be sold in accordance with the terms of the mortgage. On same day the order was granted, and on the 7th of July, 1897, notice issued to Mrs. Mattie A. Wooten, widow, in her own behalf, administratrix of the succession of W. L. Wooten, and as tutrix to Zenobia Wooten, minor, to pay the debt specified within three days, in default whereof the mortgaged property would be sold in satisfaction of the writ. On July 7, 1897, a writ of seizure and sale issued, and on August 18, 1897, was executed by seizure of the property. On September 14, 1897, the appellant filed his petition in the court below, therein asserting title to the property in controversy, through the succession sale heretofore recited, and that he had been in peaceable and undisturbed possession since the date of adjudication; that the marshal had seized it under a writ of seizure and sale issued at the instance of J. B. Watkins, and advertised the same for sale; that this would be in gross violation of his rights; that he was entitled to damages for the alleged tortious seizure; and that an injunction was necessary to arrest the sale. The petition was verified, and the judge granted the order of injunction on the 22d of September, 1897. The petitioner prayed for a citation, a writ of injunction pendente lite, a final injunction, a decree of restitution, and for judgment against the marshal and the plaintiffs in the case of Watkins et al. against Mrs. Mattie A. Wooten, in solido, for the sum of $650 damages, and all costs of suit. Thereafter the defendants in the petition appeared, and filed a demurrer, and for cause of demurrer set forth that the complainant had not by his bill made or stated a cause entitling him to relief, and that the bill was multifarious, in that some of the matters alleged were cognizant in equity and some were cognizant at law. On hearing this demurrer, the following entry was made: "As per assignment, the demurrer filed herein came on to be heard after argument by counsel for the respective parties, the same was overruled, and counsel for plaintiff elected to proceed on the equity side of the court. Case continued." Thereafter all the defendants joined in an unsworn answer admitting the issuance of the writ of seizure and sale, the seizure and advertisement for sale of the property described, but denying that Ivy I. Davis owns the property so seized and advertised, and aver the same belongs to the succession of W. L. Wooten. The answer further alleged that the pretended sale from the succession of Wooten to Ivy I. Davis, set up in the bill of complaint, is an absolute nullity, because the court under whose orders and decrees such sale was made was without jurisdiction over or of the succession of W. L. Wooten, and that its orders and decrees were absolute nullities, because said Wooten, at the time of his death, resided and had his domicile in the city of New Orleans, parish of Orleans, state of Louisiana. The case thereupon was continued from term to term, until the April term in 1900, when the defendants below filed the following as an amended answer, to wit: "Defendants, with leave of court, for further answer to bill of complaint, say and aver that plaintiff is not, and never was, owner of the lands," etc., "described in bill of complaint,

and has not, and never had, any right, title, or interest therein or thereto. Defendants say and aver that the pretended sale set up by plaintiff is fraudulent, and has no legal or real existence. They aver that the recitals in pretended deed under which plaintiff claims are false; that the sheriff of Caldwell did not sell said land to plaintiff, or to any one else, and never offered same for sale under any writ on day stated in said pretended deed or at any other time. Adopting all allegations of answer, they pray that plaintiff's bill be dismissed, at his costs." Without further pleadings, the record shows that evidence was taken substantially establishing the facts alleged in appellant's petition, and thereafter a decree was rendered dissolving the preliminary injunction, denying the prayer for an injunction, and dismissing the plaintiff's bill. Solicitors for the appellants put in a motion for a new trial on the ground that the decree of the court is contrary to law and the evidence. This motion for a new trial being overruled, this appeal was taken, assigning errors as follows: "(1) That plaintiff is bona fide owner and possessor of the property described in his bill in this cause. (2) That he acquired said property by purchase at administrator's sale of the succession of W. L. Wooten, through the sheriff as auctioneer, on December 31, 1894, and since that date has been in quiet, peaceable, and undisturbed possession thereof, exercising all the acts of ownership, to the knowledge of Jabez B. Watkins et al., seizing creditors and defendants in this suit. (3) That defendant, marshal of this court and of the Western district of Louisiana, acting under and by virtue of an order of seizure and sale and writ of sale, which issued from this honorable court in the cause, entitled Jabez B. Watkins et al. v. Mrs. Mattie A. Wooten, Widow, Administratrix, et al.,' and No. 203 on the docket of this court, and at the instigation of the plaintiff in said cause, seized, took possession of, and advertised for sale plaintiff's property, and described in the bill of complaint in this cause. (4). That a writ of injunction is necessary to prevent the sale of plaintiff's property for the debts of another. (5) That the succession sale at which plaintiff purchased property described in his bill devested said property of all mortgages placed upon it by the deceased, and especially devested said property of the mortgage now sought to be executed against it, and transferred said mortgages to the proceeds paid by plaintiff in the hands of the administratrix. (6) That the circuit court of the United States for the Western district of Louisiana erred in denying plaintiff's title and refusing the injunction prayed for."

Geo. E. Dodd and F. G. Henderson, for appellant.
A. H. Leonard, for appellees.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above). As there was an actual, physical seizure and custody of the property in controversy in the suit of Watkins et al. against Wooten, in the circuit court, that court had jurisdiction to hear and determine the controversy inaugurated by the petition filed by appellant and the proceedings thereunder, irrespective of the citizenship of the parties. Morgan's L. & T. Ry. v. Texas Cent. R. Co., 137 U. S. 171, II Sup. Ct. 61, 34 L. Ed. 625, and cases there cited. The record shows that the proceedings on the appellant's petition have been carried on and conducted under the liberal rules of procedure as laid down in the Louisiana Code of Practice, and in total disregard of the equity rules which control equitable proceedings in the courts of the United States. Although this has been done without objection in the circuit court, and with the apparent sanction of the judge, and no errors are assigned thereon in this court, it is with hesita

tion we deal with the case on the merits, and as if the proceedings were in all respects regular.

The case shows that the succession of W. L. Wooten was regularly opened in the district court of Caldwell parish, and that thereon proceedings were had that resulted in a sale and transfer of the property in question to pay debts. According to the laws of Louisiana, as expounded by the supreme court of the state, it is well settled that such a sale, when perfected, has the effect of extinguishing mortgages given by the deceased upon the property, leaving the mortgage creditors to look to proceeds in the hands of the administrator. Lafon's Ex'rs v. Phillips, 2 Mart. N. S. 231; De Ende v. Moore, Id. 336; Joyce v. Poydras de la Lande, 6 La. 283; Hoey v. Cunningham, 14 La. 86; French v. Prieur, 6 Rob. 299; Leverich v. Same, 8 Rob. 97; Lewis v. Labauve, 13 La. Ann. 382; and see Succession of Thompson, 42 La. Ann. 122, 7 South. 477.

The alleged answers in this case deny the validity of the sale made under the authority of the district court of Caldwell parish in the succession of W. L.. Wooten, on the ground that said Wooten, at the time of his death, resided and had his domicile in the city of New Orleans, parish of Orleans, state of Louisiana, and not in the parish of Caldwell, of said state. If we understand the law of Louisiana, only the probate court of the parish of the domicile of the deceased has jurisdiction to open the succession and conduct succession proceedings, and if, in fact, at the time of his death, the said Wooten was a citizen of the city of New Orleans, parish of Orleans, the district court of Caldwell parish was without jurisdiction, and its judgment and proceedings were nullities. But we fail to find in the evidence any proof whatever that the said Wooten at the time of his death was a citizen of the city of New Orleans, parish of Orleans, but find abundant evidence to the effect that at the time of granting and acknowledging the mortgage to Henry Dickinson said Wooten was a citizen of Caldwell parish. The amended answer alleges that the sale by the sheriff, under the orders of the district court of Caldwell parish, was a simulation and a sham, and had no legal and real existence; that the recitals in appellant's deed are false; that the sheriff of Caldwell parish did not sell said land to the plaintiff or any one else, and never offered the same for sale under any writ.

Assuming that this is a sufficient averment that the sale by the sheriff of Caldwell parish, under the alleged order of the district court of Caldwell parish, was a nullity, still we fail to find any evidence whatever in the record showing, or even tending to show, that the proceedings were not valid and regular. Certainly Wooten was dead, his last domicile as far as the record goes was in Caldwell parish, and apparently the district court of Caldwell parish was seized of jurisdiction, and it unquestionably issued the order of sale. under which the sheriff acted. It is a well-settled rule in Louisiana that in a matter of judicial sales a purchaser need not look beyond the jurisdiction of the court and the sufficiency of the order to warrant the sale. Webb v. Keller, 39 La. Ann. 55, 67, I South. 423, 431, and cases there cited.

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