HOPKINS et al. v. HEBARD et al., 194 F. 301

KNAPPEN, Circuit Judge. The appeal in this cause is from a decree of the Circuit Court dismissing the bill filed to review and reverse the decree of this court in Belding v. Hebard, the opinion in which case is reported in 103 Fed. 532, 43 C. C. A. 296.

The bill in the original cause was filed by Hebard against Belding and others to quiet the title of, and restrain trespasses upon, the tract in question, containing (according to the allegations of the original bill) about 8,000 acres, and, as stated in one of the briefs of counsel, about 6,600 acres; Hebard claiming under grants from the state of Tennessee, Hopkins and his associates claiming under grants from the state of North Carolina.

The decision in the original suit turned upon the location of a portion of the boundary line between the states of Tennessee and North Carolina, as run in 1821 by commissioners appointed by the respective states. This court affirmed the decree of the Circuit Court, which was rendered in accordance with Hebard’s contention as to the location of the boundary line, and thus held that the lands in dispute were in Tennessee and Hebard’s title thereto good under the Tennessee grant.

Before the final decree of this court (which was rendered July 13, 1900), but after the decree of the Circuit Court in the original case, Belding and his associates conveyed to Archer and McGarry, in trust, for the payment of certain indebtedness, a large tract of land of which the lands here in question formed part; and, after the final decree of this court, Archer and McGarry, trustees, conveyed to Hopkins and his associates, appellants here, the lands so conveyed to said Archer and McGarry by Belding and his associates.

The contract of sale, in pursuance of which the deed was given, declared that it was dependent upon the condition that “there shall not be less than 38,000 acres of land in the purchase.” The deed of conveyance to Hopkins and his associates recited that the conveyance from Belding and his associates to McGarry and Archer was subject “to all deductions, if any, arising by, through or under the ‘state line’ suit hereinafter mentioned.

Grants Nos. 8,100 for 16,800 acres, and No. 2,336 for 14,800 acres, above mentioned, being for the same lands,” and contained this further language : “But there is especially excepted from the covenants of this conveyance, all those lands situated at or near the state line, between the state of North Carolina and Tennessee, which were recovered in a certain action known as the ‘state line’ suit which was pending in the United States Circuit Court for the Eastern District of Tennessee and was brought by one Hebard against David W.

Belding and others if future proceedings do not recover the-title thereof.” Immediately after the final decree of this court, Hebard sold the lands in question, as part of a total acreage of 41,000 acres, to Blaisdell and others, who later conveyed the same entire tract to the Smoky Mountain Band & Improvement Company, which purchased with knowledge of the final decree and in .reliance upon it.

September 25, 1906, and thus more than six years after the final decree of this court, Hopkins and his associates asked leave to file a bill in the name of the original defendants, Belding and his associates, but on behalf of Hopkins and his associates, to review said decree, upon the ground that the then newly discovered map of the commissioners’ location .furnished evidence controlling and decisive of the actual location of the boundary line according to the contention of Belding and his associates, and thus that the lands here in question are in the state of North Carolina, and so belonged to Hopkins and his associates by virtue of the grants from that state.

The Smoky Mountain Company was given’notice of this application, and allowed to intervene for the protection of its rights.

This court granted the petition to apply to the Circuit Court for leave to file a bill; the per curiam opinion filed in connection with said order containing the following statement: “Without deciding any question which may be involved in the application for leave to file such a hill, this court, for reasons satisfactory, now consent that the petitioners may apifiy directly to said Circuit Court, which court will grant or refuse permission as it may be advised.” The judge of the Circuit Court said in his opinion that it seemed to him that: “There is no ground on which the success of the proposed bill of review might finally be expected.

The objections which are made to permitting this bill to be filed go to the very merits of the bill, and can, and in my opinion should, more properly be taken up by demurrer to the bill if filed. If, in the exercise of discretion, I refuse to allow the bill of review to be filed, it is not certain that my refusal to do so would be subject to review.

On the contrary, if the bill is filed and a demurrer should be sustained to it on the same grounds that are now urged against its filing, the action of the court would be subject to easy review, and so the petitioners for review would suffer no error at the hands of this court that could not be readily corrected.

In view of these considerations I have determined to allow the bill of review to be filed, subject, of course, to all legal objections by demurrer, answer, plea or otherwise, as the defendants may be advised, and it is ordered accordingly.” The Smoky Mountain Company, both by answer to the petition for leave to file the bill and by its answer to the bill as filed, raised the objections, among others, that appellants, being assignees of the original defendants, could not properly file such bill, and that the Smoky Mountain Company, being a good-faith purchaser for value, should be protected in its purchase as against the leave asked; and in answer to the petition for leave to file invoked the.rule, among others, that a bill of review may be refused although the evidence, if admitted, would change the decree, when the court, looking to all- the circumstances, shall deem it productive of mischief to innocent parties or for any other cause unadvisable.

The Circuit Court, upon hearing on pleadings and proofs, dismissed the bill'of review, saying in its opinion that relief should be denied upon more than one of the grounds relied upon by defendants, but basing its decision specifically upon the fact that the newly discovered evidence was not such as to show that the original decree was wrong. 13 elding andl his associates did not appeal from this decree of dismissal, the appeal being taken by Hopkins and his associates “prosecuting a bill of review herein in the name of the original defendants.” In the opinion of a majority of the members of this court, the decree of the Circuit Court, dismissing the bill of review, should be affirmed.

This bill of review is not filed for error apparent upon the face of the decree, but solely for newly discovered evidence. The rule is well settled that while a bill of review, on account of error upon the face of the decree, may be filed as matter of right, the.granting of a bill of review on account of newly discovered evidence is not of right but of sound discretion in the court. In Dexter v. Arnold, 5 Mason, 303, 315, Fed. Cas.

No. 3,856, Justice Story, speaking of such a bill, said: “it. may be refused, therefore, although the facts, if admitted, would change the decree, where the court, looking to all the circumstances, deems it productive of mischief to innocent parties, or for any other cause unad-visable. Bennet v. Lee, 2 Atk. 528, Wilson v. Webb, 2 Cox, 3, and Young v.

Keighley, 16 Vez. 348, are strong exemplifications of the principle.” The rule thus laid down by Justice Story is not only adopted by the text-books generally, but has been declared and affirmed by numerous decisions, which, as well as the text-books, have generally stated the rule in the precise language of Justice Story. 2 Daniell’s Ch. Pr. 1577; Story’s Eq. Pl. § 417; Hughes v. Jones, 2 Md. Ch. 289, 296; Harris, Adm’x, v. Edmondson, 3 Tenn. Ch. 211; P. & M. Bank v. Dundas. 10 Ala. 661, 669; Massie’s Heirs v. Graham’s Adm’rs, 3 McLean, 41. Fed. Cas. No. 9,263; Craig v. Smith, 100 U. S. 226, 233, 25 L.

Ed. 577; Ricker v. Powell, 100 U. S. 104, 107, 25 L. Ed. 827; Thomas v. Harvie’s Heirs. 10 Wheat. 146, 150, 6 L. Ed. 287; Stockley v. Stockley, 93 Mich. 307, 313, 53 N. W. 523. In Ricker v. Powell this language was used; “A bill of review on the ground of newly discovered matter can only he filed on special leave, which depends on the sound discretion of the court to which the application is made. Thomas v. Harvie’s Heirs. 10 Wheat. 146 [6 L. Ed. 287]; Rubber Company v. Goodyear, 9 Wall. 805 [19 L. Ed. 828]; Story. Eq. Pl. 421c; 2 Daniell, Ch.

Pr. (4th Ed.) 1577. ‘It may be refused, nli hough the facts, if admitted, would change the decree, when the court, looking to all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause unadvisablo.’ Story, Eq. Pl. § 417; Griggs v. Gear, 8 Ill. [3 Gilman] 2.” In Craig v.

Smith it was said: “There is no universal or absolute rule which prohibits the courts from allowing the introduction of newly discovered evidence under a hill of review to prove facts which were in issue on the former hearing. ‘But the allowance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause.’ Such was the language of Mr. Justice Story in Wood v. Mann. 2 Sumn. 334 [Fed. Cas.

No. 17,954], and he states the rule none too strongly.” In Stockley v. Stockley it was said: “An application for leave to file a bill of review is the method employed to obtain a rehearing and to vacate a decree after its enrollment; but the results to be attained, and the facts properly to be considered, are the same as though it were.a motion for a new trial, or a motion for a rehearing and to vacate a decree before its enrollment, and in like manner it addresses itself to the fair discretion of a court.

In passing upon it, each ease stands by itself, and is controlled by the circumstances surrounding it, and without reference to any other case. The power of the court in granting or denying it is largely discretionary, and is always to be exercised in view of the peculiar circumstances of each case, so as to effectuate substantial justice, and protect the legal and equitable rights of the parties.” In the opinion of a majority of the court the case is one calling for the application of the principle recognized by the decisions cited.

The appellants here are purchasers of the lands after decree and under express exception thereof from the covenants of warranty. Their purchase, so far as concerns the lands here involved, was speculative. On the other hand, the Smoky Mountain Company was a good-faith purchaser for value and in reliance upon the decree. In Thompson v. Maxwell, 95 U. S. 391, 397, 398 (24 L. Ed. 481), it is said that “none but parties and privies can have a bill of review. It does not lie for assigneesand that the fact that the original defendants were joined as complainants with their assignees does not obviate the difficulty.

But we do not decide that an assignee cannot,, under any circumstances, file a bill of review, nor that this case is controlled by Thompson v. Maxwell, nor that the mere fact of a good-faith purchase by a party in reliance upon, but not under, a decree precludes the review and reversal of that decree.

What we do mean to decide is that in our opinion, taking into account not only the speculative purchase by appellants, but also the good-faith purchase by the Smoky Mountain Company, a case is not presented which appeals to the equitable discretion of the court to allow the review of a decree upon the ground alone of newly discovered evidence. We rest our decision solely upon this proposition.

Bearing in mind the rule that this bill of review for newly discovered evidence is not of right, no matter how persuasive of error in the original decree the new evidence may be, and that it should not be allowed if such allowance would result in mischief to innocent parties, and having in view the stability necessary to be afforded! to decrees, especiad}- of courts of last resort, where disturbance thereof is not essential to the protection of the real equities of the parties before the court, we think the review asked for should be denied.

In our opinion, the stability of judgments, and thus the protection of rights acquired in reliance upon them, are such as, under the peculiar circumstances of this case, to make the review asked for inequitable. Nor do we think the situation is changed by the fact of the conveyance by Belding and his associates to the trustees pending the suit, nor by the fact that appellants were negotiating for, and possibly may be said to have had, to some extent, an option for the purchase of the land! previous to the final decree.

The appellants were not bound to make the purchase until contract therefore was actually made, which was after the decree sought to be. reviewed was entered; and the purchase then made, as has been said, was speculative as to the land here involved. It is urged that the Smoky Mountain Company is not a good-faith purchaser, because of an option taken by Peck and his associates previous to the decree of this court.

But even if the Smoky Mountain Company or its grantors derived any interest from the Peck option, which does not clearly appear, the actual purchase was not in fact made until after the decree of this court, and is shown to’have been made with knowledge of and reliance upon that decree, and tints the earlier option could not affect the status of the Smoky Mountain Company as a good-faith purchaser. It is urged that the original defendant lost his land by the decree of the court, and that the court was the means by which this result came about. But this court committed no error.

It decided rightly upon the case presented to it. It was the misfortune of the defendants that the map was not discovered before the hearing of the original cause. But the reversal of this decree would result, on the one hand, not in benefit to the original defendants, but to purchasers of their rights after the unfavorable decree was made, and, on the other hand, to the detriment of those who bought in reliance upon that decree. Proceedings under bills of review are in the nature of applications for rehearings or new trials. In Pomeroy v. Noud, 145 Mich. 37, 44, 108 N.

W. 498, it is said that the rules governing the granting of bills of review are, to some extent, founded upon considerations of public policy as well as those of private rights. We have not overlooked the fact that the deed from Hebard to Blaisdell and his associates contained no covenants of warranty, except as against those claiming under the grantor, and that the deed to the Smoky Mountain Company was a quitclaim deed. But such facts are not controlling. A person holding under a quitclaim deed may be a bona fide purchaser. Moelle v. Sherwood, 148 U. S. 21, 28, 30, 13 Sup. Ct. 426, 37 L.

Ed. 350; United States v. California & Oregon Land Co., 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354. In Moelle v.

Sherwood, Justice Field, speaking for the court, said: “The doctrine expressed ill many eases that the grantee in a quitclaim deed cannot be treated as a bona flcle purchaser does not seem to rest upon any sound principle.” And ag'ain: “The character of a bona fide purchaser must depend upon attending cir-cuinslances or proof us to the transaction, and does not arise, as often, though, we think, inadvertently, said, either from the form of the conveyance or the presence or the absence of any accompanying warranty.

Whether the grantee is to be treated as taking a mere speculative chance in property, or a clear title, must depend on the character of the title of the grantor when lie made the conveyance; and the opportunities afforded the grantee of ascertaining this fact and the diligence with which he has prosecuted them will, besides the payment of a reasonable consideration, determine ihe bona fide nature of the transaction on his part.” It is true that the specific proposition upon which we rest our -decision was not in terms presented by answer, but we think that the defense as presented, in connection with the objection to granting leave to file a bill of review, is sufficient to properly present it to this court.

In reaching this conclusion, we have not overlooked the fact that leave to file the bill was granted by the Circuit Court. In our opinion, however, the granting of such leave, especially under the conditions we have before set out, was not so far an adjudication of the equities of the cause as to preclude their review. An order allowing the filing of a bill of review is not appealable, while an order denying permission is final and appealable. Maxfield v. Freeman, 39 Mich. 64; Scriven v. Hursh, 39 Mich. 98.

Unless, therefore, this defense may be considered upon final hearing, the decision' of the Circuit Court granting the leave to file could never be reviewed. But, this consideration apart, we think the party against whom a bill of review is filed is not foreclosed from a defense of this nature by the mere granting of leave, especially where, as in this case, both this court and the Circuit Court have apparently refrained from adjudicating anything except the leave to file. See Massie’s Heirs v. Graham’s Adm’rs, 3 McLean, 41, 48, Fed. Cas. No. 9,263.

For the reasons above stated, the decree of the Circuit Court, dismissing. the bill of review, must be affirmed.