HOOK v. MERCANTILE TRUST CO. OF NEW YORK et al., 95 F. 41

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The motion to dismiss and the merits were argued at the same time.

The opinion of the court is that the motion must be sustained, and for that reason it is not necessary to decide again tlie merits of the case; hut it is proper to say that tlie rehearing was ordered mainly because the judges who composed the court when the case was first heard, except Judge Showalter, who died before the petitions for rehearing were considered, were convinced that the equitable title to the property in suit had been acquired by the Peoria Company, substantially as stated in the finding below; and, that being now the opinion of the court, the reasons therefor will be stated briefly: The finding that the properties were acquired for the Peoria Company between March 1, 1888, and September 21, 1893, it is clear, does not refer to acts of original acquisition in the years 1882, 1883, and 1884, but must be accepted as meaning that by later transactions, culminating between the dates named in the finding, the properties were acquired and paid for as stated.

So construed, the finding rests upon sufficient proof. The contrary conclusion, declared in our first opinion, was due in part to a too technical view of the evidence, considered piecemeal rather than as a whole, but more especially to a failure to consider the fact (not mentioned in the briefs then before the court) that the terminals in question (certainly those at East St. Louis) were designated as the property of the Peoria Company upon a map made at the time of, or soon after, the construction of the road into East St. Louis. Besides that property, it appears that the right of way from Litchfield to East St.

Louis, and every piece of land of the Peoria-Company, about the title to which, whether taken in one name or another, there was no dispute, were'designated on that map by red boundary lines, and by the initial letters of the name of the company. The map having been made by the engineering department of the Jacksonville Southeastern Line, working under the authority of William S.

Hook, counsel for appellees contend that it amounted to a dedication by Hook and the Jacksonville Southeastern Line of the properties designated' to the Peoria Company, “as good between the parties as a warranty deed.” Whether the platting constituted an irrevocable dedication or not, the fact is of great significance, in that it gives coherence and a new direction to the other proofs, which, without that fact, we deemed insufficient to establish title in the-Peoria Company.

The map, in connection with the other evidence, we are convinced, warrants the inference that,, when that company was put in possession of the properties designated, it was as owner in its own right, and was so intended by all concerned. Everything done before and afterwards points that way.

The original purchase, it is true, was made with money of the Jacksonville Southeastern Railway Company, — the entire price, and not the larger part thereof, merely, as stated in our first opinion, being paid out of the funds of that company; but the amount was afterwards carried to the “clearance books” of the Jacksonville Southeastern Line, and probably should be deemed to have passed to the credit of the Peoria Company. That fact, however, is denied, and need not be determined.

The Peoria Company, besides owning a large share of the stock of the Jacksonville Southeastern Company, it is clear, was the chief, if not the sole, contributor to the earnings over expenses of the Jacksonville Southeastern Line. Besides, if the original trust or equitable lien in favor of the Jacksonville Southeastern Railway Company was not extinguished by a repayment of the purchase money, that company never asserted title or interest, and Hook, holding the-legal title, proceeded to deal with the property as if under no obligation to that company.

It appears probable, on the evidence, that he came under an equal or greater obligation to the Peoria Company; but on that point, too, there is dispute, and we make no attempt to-clarify accounts which the witnesses found and left in confusion. The burden of proof in that respect was bn Hook, who was in fiduciary relations to all the companies concerned; and, if inferences •against him were necessary, it would not be unreasonable to draw them.

While there is no direct evidence of the making of a contract for a transfer of title or an indefeasible interest in the disputed properties to the Peoria Company, there is, in the maps and other evidence adduced, the items of which are referred to in our first opinion and need not be stated again, ample ground for the inference that Hook, holding the title, and representing practically all interests concerned, determined or agreed for all that that company should take possession, improve, and own the property. Terminal facilities at. East SI.

Louis for that company, and for that alone of all the companies which he represented, were indispensable, then and for the in-dciinile future; and the same foresight which led him to obtain tille to the property in 1882 dictated dial he then acquire it for or appropriate it io (he immediate and permanent use of that company. To do so was only to execute1 his original design. To hare done less would hardly have been an adequate discharge of his duly to that com pany, and that he did his duty in that respect the evidence, though inferential, is nevertheless convincing.

Under the circumstance's, a lease on any conceivable terms could hardly have been reasonable,— certainly not an indefinite lease, terminable at will, or a mere license, Xo wiiness testified, and theme is no evidence to justify an inference, that a lease was made. William 8. Hook, though a witness in the case:, was silent on that subject; and Marcus Hook, testifying about conversations with William 8. concerning rental values, but not saying that a lease was made, compels the inference that he had no knowledge of the making of one, and perhaps knew that none had been agreed upon.

The finding of the mas ter that the two terminal properties belonged to Mary B. Hook, and not lo the Peoria Company, as he found in respect to other properties held in the name of William S. Hook or of some of his associates, seems to rest, solely upon the proceedings in the circuit court of Morgan county; but by no possible construction can those proceedings affect the Peoria Oopipany.

While it still seems to us the better opinion that the decree of May 26, 1893, in that case, was final, and merged the agreement on which it was based, and that consequently the proceedings of the next term, in December, were had without jurisdiction of the parties, — the words “by consent,” even if treated as referring to the words “set aside,” not being sufficient to show an appearance by any particular party, — yet, even if the decree then rendered in favor of Airs.

Hook be regarded as conclusive of the rigid® of all parties upon whom process had been served, it does not bind the Peoria Company, notwithstanding it liad obtained possession pending; the original suit. It had been in possession more than two years when Airs. Hook intervened.

The petition which she was permitted (<> file asserted a new and different right from any involved in the original bill, and as against the Peoria Company, even if not against the defendants named in the original bill and served with process, was equivalent to the bringing of a new suit, of which notice, unless waived, must have been given according to the established practice. 5 Enc. Pl. & Prac. 658. We pass to (he motion to dismiss: Had Mary B. Hook a right to lake and prosecute her appeal without joining William S. Hook, or obtaining an order of severance?

The principal question involved in her appeal is of the validity and effect of the decree which she obtained in the Morgan circuit court. That William S. Hook is directly interested in that question is evident. The decree of the state court, if valid, determined, between all the parties, and cer tainly between the appellant and William S. Hook, that a deed of trust had been executed as alleged, that the deed was valid, that it constituted a lien prior to any and all rights of others, that on the considerations stated he had acquired the lien of M. P.

Ayers & Co., and had transferred it, in its entirety, to the appellant; but all these things the decree appealed from either reversed or set at large. In this respect the case is not different from the. one recently decided by this court in Elevator Co. v. Nichols, 34 C. C. A. 90, 91 Fed. 832. See, also, Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693. It is perhaps true, as contended, that in so far as the decree directed the execution of deeds by the appellant and William S.

Hook, it is, in a sense, several, meaning that the appellant should convey the terminal properties, the titles to which were found to be in her name, and that William S. Hook should convey the properties described, of which the titles were found to be in his name; but, when it is considered that they are husband and wife, it is hardly to be doubted that the decree was intended, and should be construed, to require that each join in the deed of the other. By

an act passed in 1874 a married woman was given power, in Illinois, to sell and convey real property to the same extent and in the same manner that the husband could convey realty belonging to him.

But at the same time the husband’s estate of curtesy was abolished, and' instead thereof it was enacted that “the surviving husband or wife shall be endowed of the third part of lands'whereof the deceased husband or wife was seised of an estate of inheritance at any time during the marriage, unless the same shall have been extinguished in legal form,” etc., and, further, that “equitable estates shall be subject to such dower.” 2 Starr & C. Ann. St. (2d Ed.) p. 1456. It follows that, if the master’s report had been confirmed, William S.

Hook would have had a right of dower in the properties of which the master reported title in Mrs. Hook. While the title stood, as originally taken, in the name of William S. Hook, Mrs. Hook had an apparent right of dower; or, to say the least, she was in a position to assert such right in any of the properties of which her husband held the title, or in which he owned an equitable and inheritable estate. Whether the right in fact existed, or whether the different properties were held under trusts which excluded claims of dower, were questions involved in the litigation, and were determined by the decree.

Whether or not, therefore, a joinder in the execution of deeds was intended, or was necessary in order to cut off- dower rights, the decree itself is conclusive against the assertion of such rights by either of these parties, and to that extent is a joint decree against them, or at least is a decree in which each has an interest which would be affected by a reversal or modification in behalf of the other.

In conformity with this view is the last clause of the decree, that the defendants “shall convey and release * * * all their rights, titles, and interests in the property described.” That requirement is distinctly joint in form. Without impairing its force, it is incapable of severance, and presumably was framed for the purpose of removing all question on the subject by covering all possible interests, whether several or joint. If, upon proper notice, William S.

Hook had failed or refused to join in this appeal, lie would have been estopped “from bringing another appeal for the same matter,” as he has endeavored to do. Hardee v. Wilson, infra. It is further contended that the judgment of this court rendered upon its first opinion was not vacated by the granting of a rehearing, and that, the judgment so rendered being still in force, the motion to dismiss came too late. The petition of the appellees for a rehearing challenged the opinion of the court in its entire scope;, and, as already explained, was granted for reasons equally-comprehensive.

The intention of this court is that the granting of a rehearing without restriction shall operate to vacate its judgment, so that thereafter the cause shall stand as if no judgment had been entered. The question presented by the motion to dismiss, the supreme court several times has declared, is jurisdictional, and, it follows, may be raised at any time before final disposition of the appeal. See the following cases, and cases cited: Wilson’s Heirs v. Insurance Co., 12 Pet. 140; Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58; Mason v. U. S., 180 U. S. 581, 10 Sup. Ct. 1062; Dolan v. Jennings, 189 U.

S. 385, 11 Sup. Ct. 584; Hardee v. Wilson, 146 U. S.. 179, 13 Sup. Ct. 39. The appeai is therefore dismissed. Judge GBOSSCUP, by reason of sickness, did not share in the final consideration of this case.