BROOKS et ux. v. LAURENT, 98 F. 647

SHELBY, Circuit Judge, after slating the case as above, delivered the opinion of the court. It is assigned as error that the United States circuit court had no jurisdiction of the case.

The position taken by counsel is ¡hat the suit in which relief is granted is one by Achille Laurent, as the as signet; of Fulton, to enforce specifically the lease, and that the lease is within the prohibition of the statute providing that the circuit court shall not “have cognizance of any suit * ⅞ ⅞ to recover the contents of any promissory note or oilier chose in action in favor of any assignee, ⅞ ⅞ unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made.” 24 Stat. 552, as corrected by 25 Slat. 434. Corbin v. Blackhawk Co., 105 U.

S. 659, 26 L. Ed. 1136, is cited as sustaining this position, and it is there held that a suit to compel the specific performance of a contract, or to enforce its other stipulations, is a suit to recover the contents of a chose in action, and is not maintainable, under

section 629 of the Revised Statutes of the United States, in the circuit court,- by an assignee, if it could not have been prosecuted there by the assignor had no assignment been made. Tins objection would at least require careful consideration, and would, perhaps, prevail if this were an original suit' brought by Achille Laurent, as the assignee of Fulton, against Brooks and his wife. In such case it may be conceded that the record, to show jurisdiction of the circuit court, would be required to show that Fulton, the assignor, could have maintained the suit in the circuit court.

Whatever relief is sought by Achille Laurent ⅛ not, however, by an original bill, but bv a cross bill. The original bill is not filed by an assignee of a chose in action. Brooks and his wife, citizens of the state of Florida, filed the original bill in the slate court against Achille Laurent, Leon Laurent, and Paul Jumeau, who are citizens of the republic of France. The original bill and the petition for removal show these jurisdictional facts. The circuit court has jurisdiction of controversies between citizens of a state and citizens or subjects of a foreign slate. 25 Stat. 434.

The original bill, therefore, when filed by Brooks and wife in the state court, could have been filed by them in the United States circuit court, for, “where the action is between a citizen of a state and the subject of a foreign state, the court has jurisdiction on account of the character of the parties, without reference to which of them is plaintiff or defendant.” Hinckley v. Byrne, 1 Deady, 224, Fed. Cas. No. 6,510. So it appears that the suit, when instituted, was one of which the United States courts had jurisdiction.

It was a controversy between citizens of a state and citizens of a foreign state, and involved the -jurisdictional amount. It was not a suit by or in behalf of an as-signee. The complainants were the lessors in a lease involved in the litigation, but they were neither the assignors nor the assignees of the lease. The controversy being one, as is shown, of which the circuit court had jurisdiction, it was removable under the second

section of the act, providing that “any suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state.” Act Aug. T3, 1888 (25 Stat. 434).

After the case was regularly removed, under this statute, to the United States court, the defendants first filed a demurrer, and later an answer, to the bilk A motion was also made by the defendants to dissolve the injunction theretofore granted in the case. It was pending this litigation, and as a part of the defense in the controversy, that Achille Laurent filed the cross bill praying for a decree enforcing the specific performance of the contract of lease, which was the subject-matter of the original bill. The jurisdiction invoked by the cross bill was not original, but ancillary.

The jurisdiction of the court was established by the existing record. In Cross v. De Valle, 1 Wall. 5, 14, 17 L Ed. 515, the court said that “a cross bill is a mere ancillary suit, and a dependency of the original.” The same principle is involved where a bill of revivor is filed. “A bill of revivor is but a continuation of the original suit, and, if the plaintiff was competent to sue the defendant in the circuit court, his administrator, though a citizen of the same state as the defendant, may revive it.” Clarke v. Mathewson, 12 Pet. 164, 9 L. Ed. 1041.

The cross bill being merely ancillary to the original suit, it may be maintained although the court would not have had jurisdiction of the cross bill as an original action. Railroad Co. v. Chamberlain, 6 Wall. 748, 18 L. Ed. 859; Osborne & Co. v. Barge (C. C.) 30 Fed. 805; First Nat. Bank of Salem v. Salem Capital Flour-Mills Co. (C. C.) 31 Fed. 580; Freeman v. Howe, 24 How. 450, 460, 16 L. Ed. 749. If the court has jurisdiction of the case made by the original bill, it has jurisdiction of all germane ancillary proceedings, whether by cross bill, bill of revivor, or intervening petitions.

It is contended by the learned counsel for the appellee that there was a novation of the original contract of lease; that the lessee, Fulton, and the lessors agreed to substitute Achille Laurent for Fulton, and that the contract by which the substitution was made so changed the lease as to make a new contract between the lessors and Achille Laurent. It is claimed that it is not the case of a mere assignment of a chose in action. The contention is that a new contrail was made, and that the question as to Laurent’s right to sue as assignee* is eliminated, and that he is not an assignee.

This view finds support in the terms of the lease, which made it nona asignable except by the agreement of the lessors. The material changes, also, made in the lease by the agreement to substitute one lessee for another, give support to this position of counsel. As we decide that the circuit court had jurisdiction, and that the case was removable for the reasons already given, it is unnecessary for us to express an opinion on this contention. It is claimed by the appellants that the lease was void, and that the court below erred in granting relief on the cross bill.

The original bill was tiled jointly by William M. Brooks and his wife, Sue if. Brooks. One of its purposes was to obtain the cancellation of a lease. The validity of the lease was not denied in the bill. It was expressly alleged by the complainant Sue G-. Brooks that she, authorized and assented to the making of the lease by the complainant William M. Brooks. Conceding its validity, and proceeding upon that theory, she sought its cancellation on account of breadles of the lease by the lessee.

She complained that the raining was not done in a workmanlike manner, that the lessee did not mine at least 7,000 tons of phosphate per annum, that the royalties wore not paid according to agreement, and that the lessee in fact was unable to perform his part of the contract. It is alleged that she became the owner of the land on February 14, 1895. There is no proof of this averment in the record, nor is there any denial of it. A married woman owning real property may sell, convey, or mortgage it as she might do if she were not married, provided her husband joined In the same. Rev. St. Fla. 1892, § 1956’.

Such sale, conveyance, or mortgage must he acknowledged separately and apart from her husband, before some officer authorized to take such acknowledgment. Id. § 1958. The custody and management of the property remain with the husband. Id. § 2071. It is further enacted that a married woman shall have the right to bring suits or actions for or concerning her real property without joining her husband or next friend. Id. § 2074. These statutes are enacted in conformity to Const. Fla. art. 11.

The defendant in the original bill, Achille Laurent, after having answered, filed a cross bill, in which he also proceeds upon the theory advanced by the complainants, that the lease was valid and binding upon the parties thereto. By the cross bill he seeks an accounting and other relief. Gn this accounting before the master it appeared that the complainants in the original bill were indebted to Achille Laurent on account of the lease. That indebtedness was finally ascertained to be $8,532.35.

While the special master was executing the reference to ascertain the state of the account between the parties, the complainant Sue G. Brooks, by her attorney, for the first time raised the point that the lease was void because it was executed by the husband alone, that the property belonged to the wife, and that the assent of the wife had not been given in the mode provided for by the Florida statutes. No question of this kind was raised by the pleadings.

It is only when the litigation based on theories and facts averred by her and her husband has proved in the result unsatisfactory to her that she seeks through counsel, without a change in the pleadings, to take the position that the lease was not in fact made by her, or with legal authority. Is it not a sufficient answer to this late contention to say that the bill contains the averment of her consent to and acquiescence in the lease, and that the action is an equitable suit based on the lease?

The relief to be granted, the decrees to be rendered, must be based on the pleadings and on the evidence consistent with them, and arguments and suggestions of counsel cannot be followed to sustain defenses or to grant relief in conflict with the pleadings. The bill shows that the complainants have received benefits from the-lease, and that they seek compensation for breaches of its provisions.

We would not, we think, be justified in looking beyond the averments of the pleadings to base a decree on the theory, advanced in the argument after the case is closed and submitted, that the lease was never in fact the valid contract of the complainants. The wife having averred that it was made with her authority, and that averment standing unchanged and undenied in the pleadings when the final decree was rendered, we cannot now, at her instance, assume that this statement was untrue. This would be to accept the argument and briefs of counsel in lieu of the record.

A decree fairly based on the averments of the complainants’ sworn bill should not, we think, be disturbed at the suggestion of the complainants in argument in conflict with the allegations of the bill. If the court accepts..as true the sworn bill of the complainants, they cannot be heard to complain.

The wife having joined in the sworn allegation that the lease was her valid contract, we must assume, as against her, that this is true, and that she did everything required by law to make the lease binding. ■ It is contrary to the first principles of justice that' a party should be permitted to assert rights under a contract, and obtain advantages, or seek to obtain them, by litigation based on its validity, and in a subsequent proceeding relating to the same contract claim that it was without validity, and not binding on him.

It seems well settled by principle and authority that a party to a suit is not permitted to take inconsistent positions to the' detriment of his adversary on material questions involved in' the litigation. In Railroad Co. v. Marcott, 41 Mich. 433, 2 N.

W. 795, the court held that counsel, who was shown by the record to have told the jury that in a certain contingency they should fmd for the plaintiff, could not afterwards take any ground inconsistent with the concession, or claim to .be injured by the rulings in accord with it.. .The court held, in other words, that counsel could not attack the judgment of the court or the ruling of the court which was in accord with his contention. In Ellis v. White, 61 Iowa, 644, 17 N.

W. 28, the wife procured a divorce and alimony upon a petition which she claimed later did not give the court jurisdiction to render the decree. It was held that, “whether the court had or had not jurisdiction, she cannot now, having accepted the benefits of the decree, be heard to question the jurisdiction of the court to render it.” In Abbot v. Wilbur, 22 La. Ann. 368, the court held that, where parties made an assertion in a plea for their own benefit, and to the injury of the opposite party, they could not afterwards be heard to say, or permitted to prove, that the assertion was false. In Mills v.

Hoffman, 92 N. Y. 182, 190, the court held that the principal cannot accept the benefits of an unauthorized contract made by an agent, and repudiate its obligations, and that a party cannot enjoy the rights awarded to him by a judgment, and deny its force as an adjudication. In Sullivan v. Colby, 18 C. C.

A. 193, 71 Fed. 460, it was held by the circuit court of appeals for the Seventh circuit that any confession or admission made in pleading in a court of record, whether express or implied, will preclude the party from after-wards contesting the same fact in a subsequent suit with his adversary, though there is no adjudication upon the point.

It was further held in the latter case that where one, in pleading, bases his right to possession of land upon the ground that a lease to him has not yet expired, and his adversary accepts this as an assurance that his possession will not become hostile to the latter’s title, the party who so admitted the lease would not be permitted to change Ms attitude. and claim title bv adverse possession. In Railway Co. v. McCarthy, 96 U. S. 258, 267, 24 L.

Ed. 693, the court held that: "Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his attack upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.” This case is cited approvingly bv the supreme court in Davis v. Wakelee, 156 U. S. 680, 691, 15 Sup. Ct. 555, 39 L. Ed. 578. In the latter case Davis had in a judicial proceeding asserted the validity of a certain judgment.

The judgment was in fact void for want of jurisdiction. The court held that Davis nevertheless was estopped in equity from claiming that it was void. Sir.

Justice Brown, delivering the opinion of the court, said that: "Even if Davis had been mistaken as to his legal rights with respect to this judgment and its subsequent discharge, his assertion that it was still of record, and in full force, is none the less binding upon him in view of Wakelee’s acquiescence in the ruling of the court sustaining this contention.” The learned justice added that: “It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because Ms interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position taken by him.” This case, in principle, seems directly in point here.

Mrs. Brooks and her husband both assumed the position that this lease was a valid and binding contract, and filed a bill upon the theory that the lessee liad committed breaches of it. It is true that the bill sought the cancellation of the lease, hut that prayer was, in effect:, an admission of the lease as an existing contract. The bill also sought to collect moneys alleged to be due from the lessee on account of the lease. It sought and obtained an injunction, which could only be had upon the theory of the validity of the lease. AH this appeared in the initial pleading filed in the case, — in the original bill.

The defendant, Achille Laurent, accepted as true the averment that the lease was an existing and valid contract. His cross bill is filed on that theory. The protracted and expensive litigation proceeded on that theory till the parties appeared before the special master to state the account. If the complainants had been successful in their contentions, and if the statement of the account before the special master had shown a balance in their favor,- it is not likely that they would have changed their position and asserted the invalidity of the lease.

When the result of the litigation fails to.meet their expectations, they change their position, and allege that the lease they sued on as valid is in fact void. The law does not permit this change of position. This view seems to be confirmed in Harkness v. Fraser, 12 Fla. 336, 347. A married woman, in a suit brought by her, sought to take advantage of the alleged fact that she had not acknowledged a deed. The court said: “The bill alleges that the deed was executed by the complainants. * * * It is not in issue in this case.

It is somewhat anomalous that a party should come into a court of equity, and demand that his deed be set aside because of his own blunder, or his imperfect execution of the instrument.” The question not being raised by the pleadings, the court declined to give any importance to the defect, and said that the matter was mentioned in the opinion only because it “was dwelt upon in the argument with some earnestness.” Pomeroy says that the tendency of modern authority “is strongly towards the enforcement of the estoppel against married women as against persons sui generis, with little or no limitation on account of their disability.

This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or to maintain a defense.” Pom. Eq. Jur. 814.

The courts that generally decline to apply estoppels to a married woman do not hesitate to apply the doctrine to her “where she is attempting affirmatively to enforce a right inconsistent with her previous conduct upon which the other party has reliéd.” Id., and authorities there cited. This doctrine is applied against the wife where the husband has acted for her as her agent (McCaa v. Woolf, 42 Ala. 389), and where she aets jointly with her husband (Wilder v. Wilder, 89 Ala. 414, 7 South. 767, 9 L. R. A. 97).

The evolution of the law, as shown by constitutions, legislation, and judicial opinions and decisions, is constantly towards yielding to the wife dominion over her property, real and personal, and removing the disabilities of coverture. The statutes which emancipate and confer rights necessarily impose burdens. The statutes that permit her to sue and be sued as a feme sole when she appears in court as a party to a suit make her amenable to the well-settled rule denying to parties the right to take advantage of op-pon exits by assuming, to their injury, inconsistent positions.

Such statutes are not intended to confer rights inconsistent with the rights of others. The decree of the circuit court is affirmed.