BEAMER, et al. v. WERNER et al., 159 F. 99

SEAMAN, Circuit Judge (after stating the facts as above). The complaints of rulings made and conclusions reached by the trial court are numerous as set out in the assignment of errors, but all material questions for consideration, including all which are discussed in the brief for appellants, may be resolved into two inquiries:

(1) Whether the relief granted was within the jurisdiction acquired by the trial court; and (2) whether the decree was authorized under the evidence. No reversible error appears, if these inquiries are answered affirmatively. 1. The contention of want of jurisdiction rests on the twofold propositions, in substance, that the only jurisdiction obtained was in rem (through the publication), and thus limited equitable relief under the bill to removal of an existing cloud upon the appellees’ title; and that the recorded matter cast no cloud, so that equitable cognizance was unauthorized.

Neither of these propositions is tenable in our view of the record. It is true that no personal jurisdiction was acquired until after removal, and without general appearance and answers no personal decree could be upheld. The appellants could have suffered default without incurring personal liability. They elected, instead, to appear to the merits and defend the transactions complained'of, and the rule is well settled that sucli procedure, after removal, “converted into a personal suit that which was before a proceeding in rem.” Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 105, 11 Sup. Ct. 36, 34 L.

Ed. 608, 11 Notes U. S. Rep. 1051. That the subject-matter of this controversy was within the general jurisdiction in equity is unquestionable; and jurisdiction of the person may be conferred by consent or waiver, without service of process, as a personal privilege or exemption from liability to process may always be waived. St. Louis, etc., Ry. v. McBride, 141 U. S. 127, 130, 132, 11 Sup. Ct. 982, 35 L. Ed. 659; 12 Notes U. S. Rep. 19. So, equitable cognizance of the issues between the parties arose, irrespective of any question as to the relief available before appearance and answers.

Tile record of the alleged agreement, however, not only authorized its removal as a cloud upon the title, if spurious, under the liberal rule of the forum (Hodgen v. Guttery, 58 Ill. 431, 438; Moore v. Munn, 69 Ill. 591, 595), but it purported to give the appellants an equitable claim against the appellees’ farm if the purchase money for the Missouri lands were unpaid, and thus raised a cloud, in any view of the rule applicable for relief.

Witli equitable jurisdiction established over subject-matter and persons, the power of the court to grant leave to amend the bill for extension of relief is undoubted; and the objection to its exercise in the case at bar is without force. 2. The contentions that the evidence was insufficient to impeach the alleged contract rest on a misconception of the force of the conclusion of tlie trial court as to the facts.

Failure or deficiency of testimony in support of any material averment of fact in the bill is not pointed out in the brief for appellants; and the various matters complained of are, in effect, the findings of fact by the court in favor of the proof furnished on behalf of the appellees, instead of accepting the adverse testimony of witnesses on the part of the appellants as the credible version. Examination of the evidence, certified in the record, discloses direct, clear, and positive testimony which fully sustains the decree.

This testimony is controverted in material points by witnesses for the appellants, and the issue between the parties rests upon the truth of one or the other version. The witnesses testified in open court so that each was heard and observed by the trial judge, and his determination of the credible testimony, if not controlling in equity as in law, will in no instance be disturbed, unless it rests on an erroneous view of the rights involved, as to the burden of proof or otherwise.

We are satisfied, however, with the deductions of fact, as found by the trial court in the suit at bar, irrespective of their presumptive value, and they clearly authorize the relief granted. The decree of the Circuit Court accordingly is affirmed.