HICKS v. FORDHAM, 246 F. 236

BATTS, Circuit Judge. J. H. Fordham, a resident of Arkansas, filed a bill against T. B. Hicks, a resident of Pulaski county, Ga., alleging that, under a contract with the latter, he and his mother-in-law went into possession of the land in controversy in 1892; that thereafter, about 1897, his mother-in-law moved out, leaving him in possession, and that he and defendant made another trade, whereby he was to pay $1,000 for the land in annual installments, without interest. He alleges that he remained on the land, made valuable improvements, paid all taxes and all the annual installments of purchase price.

It is further alleged that, upon the payment of the entire amount, he demanded a deed, but defendant insisted that there was still due $104. This amount was tendered, but defendant still refused to malee the deed. He prayed:

(1) For a decree requiring defendant to execute a deed conveying the land; (2) that it be decreed that the complainant had a good and valid title to- the land. By amendment, complainant alleged that in the year 1909 he filed in the superior court of Daurens county a petition in equity for specific performance of the contract; that the allegations therein were substantially as in the present bill; that at the July term, 1910, of that court a jury returned a verdict in favor of the defendant; that a motion for a new trial was granted, and July 28, 1913, complainant dismissed his action.

A motion to dismiss set up that the bill showed on its face that the cause of action was barred by limitation; that it presented a stale demand; that the tender of the amount due on the purchase price was insufficient. The motion overruled, defendant, answering, alleged that after the complainant’s mother-in-law left the land, the contract under which she and' complainant had held was rescinded, and that complainant continued in possession as a tenant; that all payments thereafter made were for rent; that no tender of any balance was ever made him.

Defendant, by amendment, alleges also that he sued out in the city court of Dublin a distress warrant against the complainant for rent for the premises for the year 1908, and had it levied upon the crops of that year, had the crops sold, and the proceeds credited upon the distress warrant. He alleges that complainant filed no counter affidavit or other defense, and that the distress warrant became a final judgment, conclusively adjudging complainant the tenant of defendant for the year 1908, and defendant pleads this judgment as an estoppel against the plaintiff.

The Georgia statute codifies the general law as to specific performance;

section 4634, Parks Annotated Code, providing: '“The specific performance of a parol contract as to land wül be decreed” where there has been “full payment alone, accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements, if clearly proved in each case to be done with reference to the parol contract.” ' Assuming the truth of the statements of the bill, complainant was entitled to the remedy of specific performance prayed for by«him.

Complainant also makes allegations which are equivalent to a statement that the claims of defendant to the land constitute a cloud upon his title. If his allegations are true, he is entitled to a decree to the effect that he has a good and valid title to the land. Assuming that this court, disposing of a case in equity, is bound by or will apply the statutes of limitations of the state of Georgia, it ■would seem that no provision of the Georgia law will bar this action to remove cloud from title. The complainant has, by himself or by his tenant, been in continuous possession of the land.

The defendant asserted, and, to the time of the institution of this suit continued to- assert, a claim constituting a cloud on the title. Under such circumstances, no statute of limitation could have application. The suit for specific performance is not barred by the Georgia statute of limitations. Assuming that the four-years’ statute is applicable, rather than the law of prescription of seven years, the suit was in time. In 1909 complainant filed in the state court a petition in equity for specific performance.

This was within four years from the repudiation by defendant of the contract, and refusaTby him to convey the land. This action was dismissed July 28, 1913, the present suit having theretofore been instituted. The Georgia Code provides (section 4381): “It a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewal case shall stand upon the same footing, as to limitation, with the original case.” In Cox v. East Tennessee, etc., R. R.

Co., 68 Ga. 446, and other cases cited in brief of appellant, it is held by the Supreme Court of Georgia that when a case has been removed from a state court to the Circuit Court of the United States, the jurisdiction of the former ceases, and, after nonsuit in the federal court, the case cannot be renewed in the state court within six months so as to avoid the statute of limitations, and that court has held that an action brought in the United States Circuit Court and dismissed by the plaintiff cannot, under the provisions of

section 4381, be renewed in the state court within six months after such dismissal so as to avoid the bar of the statute of limitations, which had attached before the second action was brought. These cases do not require a holding that a person who has a right under the laws of a state, which he may assert in a state court, cannot, there being the requisite diversity of citizenship, and the amount involved being sufficient, assert the same right in the proper federal court.

Under the facts here developed, complainant had a right, when he instituted this suit, to go into^ the courts of Georgia and pray for the relief he- has prayed for herein. Under the laws of the United States, as a citizen of Arkansas, he had a right to appeal to the District Court of the United States for the Southern District of Georgia for like relief. Defendant’s plea of estoppel is without merit. The elements of estoppel are lacking. Nor will the fact alleged be held an adjudication of the relations between the parties.

Under the laws of Georgia, the distress warrant may be sued out without personal service, and a judgment had, even without knowledge of the person whose property has been seized that the proceeding has been instituted. It may be that the sale thereunder is conclusive as to the property sold, but certainly it would be improper to give the procedure an effect beyond this. There is also evidence that the proceedings in distress were the result of an arrangement between complainant and defendant for the purpose of preventing a third person from taking the crop of complainant.

The evidence indicates that the complainant is an ignorant negro; at the' time he was acting under what was substantially duress; it would not consist with equity to permit defendant to take advantage of a condition created by his own wrong. There is a sharp issue of fact between the complainant and defendant as to the character of contract under which the former held the land. The district Judge holds that the evidence sustains the allegations of the bill. He was amply warranted in this conclusion. The judgment is affirmed.