SOUTHERN PAC. R. CO. et al. v. UNITED STATES, 133 F. 651

HAWLEY, District Judge (after making the foregoing statement). The points of contention specified by appellant in its brief are three: “

(1) The case proved shows no ground of equity jurisdiction. “

(2) The case proved shows no cause of action at law, and herein the court erred in rendering any judgment for money in favor of complainant. “

(3) The splitting of demands by voluntary dismissal of part thereof from suit No. 600 is a bar to tins suit, and all other issues here are res judicata by decrees in the other former suits set forth in the bill of complaint.” The broad contention of appellant is that the suit is simply an action at law to recover money for the lands sold by appellant; that “the amount is only a question of arithmetic,” to be ascertained by multiplying the number of acres sold at so much per acre; that the suit is in substance an action of debt or assumpsit, for money had and received, in the form of a suit in equity; that the averments in the bill as to determining who are bona fide purchasers, the quieting of titles, and annulling of patents, are simply suggested in order to give color of right to sue in equity; that, as to the lands sold by the railroad company to bona fide purchasers, “there were no titles to confirm nor patents to annul,” and, as no grounds for equitable relief are stated in the bill of complaint, it should be dismissed.

The grounds upon which this contention is sought to be maintained are varied and extensive, and require a careful and painstaking examination of the statutes mentioned in the bill and decree, and of numerous authorities cited by the respective counsel. Appellant filed its answer to the merits of the bill, without any demurrer, plea, or other objection to the jurisdiction in equity. The government was therefore put to the expense of taking the testimony, and the cause was submitted to the court and tried upon its merits.

The first objection to the jurisdiction of the court upon this ground was made in the argument of counsel for appellant at the hearing. It is claimed by appellee, upon these facts, that appellant waived any right to object to the final determination of this cause as one in equity, the court having power to grant the relief sought by the bill, and the court below so held.

Upon this point counsel for appellant claims that the court erred; that the true rule is that where the plaintiff, upon the face of his bill, shows he has a plain, adequate, and complete remedy at law, and no other equitable relief is prayed for, it is not necessary that an objection to the jurisdiction in equity should be taken in limine in the answer ; that it need not be made by demurrer or plea; that if taken at the hearing it is sufficient; and, if it clearly exists, it is the duty of the court, sua sponte, to recognize it and give it effect.

The following authorities, among others, are cited in support of this rule: Mills v. Knapp (C. C.) 39 Fed. 592; Hoey v. Coleman (C. C.) 46 Fed. 221; Oelrichs v. Spain, 15 Wall. 211, 227, 21 L. Ed. 43; Lewis v. Cocks, 23 Wall. 466, 23 L. Ed. 70; Killian v. Ebbinghaus, 110 U. S. 573, 4 Sup. Ct. 232, 28 L. Ed. 246; Litchfield v. Ballou, 114 U. S. 192, 5 Sup. Ct. 820, 29 L. Ed. 132; Jones v. Bradshaw, 16 Grat. 361; Green v. Massie, 21 Grat. 362; Buffalo v. Town, etc., 85 Va. 222, 7 S. E. 238.

The principle, as applied to the particular facts in these cases, may, for the purposes of this opinion, be admitted to be true. We have had frequent occasion, notably in German Savings & Loan Society v. Dormitzer, 116 Fed. 471, 472, 53 C. C. A. 639, and Utah-Nevada Company v. De Lamar (recently decided; C. C. A.) 133 Fed. 113, to call attention to the fact that the language as used by the courts in their opinions must be read and construed in connection with the facts of the case about which the court is speaking.

Most of the cases relied upon by appellant did not present a case where it was competent for a court of equity to grant the relief asked for, while in the case at bar the averments in the bill clearly show that it is competent for a court of equity to grant the relief asked for. This distinction must not be overlooked by the courts. In the latter line of cases it is held that failure to object to the jurisdiction in equity must be taken by plea, demurrer, or answer at the earliest opportunity, and, if not so made, it will be considered as having been waived. In Kilbourn v. Sunderland, 130 U. S. 505, 514, 9 Sup.

Ct. 594, 596, 32 L. Ed. 1005, the court said: “The point is also pressed that the remedy at law was plain, adequate, and complete, and jurisdiction in equity therefore wanting. * * * The defendants fully answered the hill, and raised no such objection, and, the cause being at issue and evidence taken, it was ordered on the 23d of February, 1883, by consent, to be heard by the General Term in the first instance. On the 24th of March, 1884, the defendant moved to dismiss on the ground of the adequacy of the remedy at law.

We have had occasion recently to remark that where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter, this objection should be taken at the earliest opportunity, and before the defendants enter ,upon a full defense. Reynes v. Dumont, 130 U. S. 354 [9 Sup. Ct. 486, 32 L. Ed. 934].” In Brown v. Lake Superior Iron Co., 134 U. S. 530, 535, 10 Sup. Ct. 604, 606, 33 L. Ed. 1021, the court said: “Good faith and early assertion of rights are as essential on the part of the defendant as of the complainant. This matter has recently been before this court in Reynes v.

Dumont, 130 U. S. 354, 395 19 Sup. Ct. 480, 497, 32 L. Ed. 934], and was carefully considered, and the rule, with its limitations, thus stated: ‘The rule as stated in 1 Daniell’s Ch. Prac. 555 (4th Am.

Ed.), is that if the objection of want of jurisdiction in equity is not taken in proper time, namely, before the defendant enters into his defense at large, the court having the general jurisdiction will exercise itand, in a note on page 550, many cases are cited to establish that, ‘if a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. This objection should be taken at the earliest opportunity.

The above rule must be taken with the qualification that it is competent for the court to grant the relief sought, and that it has jurisdiction of the subject-matter.’ ” See, also, Insley v. United States, 150 U. S. 512, 515, 14 Sup. Ct. 158, 37 L. Ed. 1163; Perego v. Dodge, 163 U. S. 160, 164, 16 Sup. Ct. 971, 41 L. Ed. 113; Williamson v. Monroe (C. C.) 101 Fed. 322, 329. This conclusion, of itself, is a sufficient answer to appellant’s contention that the complainant’s cause of action is simply an individual common-law demand for the value of so many acres of land.

But if appellant could now raise the question, it could not, in our opinion, be sustained. The jurisdiction in .equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstances. The circumstances of each case must determine the application of the rule. In Boyce v. Grundy, 28 U. S. (3 Pet.) 210, 215, 7 L.

Ed. 655, the court said: “It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” In Oelrichs v. Spain, supra, relied upon by appellant, the court said: “The sixteenth

section of the judiciary act of 1789, c. 20, 1 Stat. 82 [U. S. Comp. St. 1901, p. 723], provides ‘that suits in equity shall not be sustained in any case where plain, adequate, and complete remedy can be had at law’; but this is merely declaratory of the pre-existing rule, and does not apply where the remedy is not ‘plain, adequate, and complete’; or, in other words, ‘where it is not as practical and efficient to the ends of justice and to its prompt administration as the remedy in equity.’ Where the remedy at law is of this character, the party seeking redress must pursue it.

In such cases the adverse party has a constitutional right to a trial of the issues of fact by a jury. But this principle has no application to the case before us. Upon looking into the record it is clear to our minds, not only that the remedy at law would not be as effectual as the remedy in equity, but we do not see that there' is any effectual remedy at all at law. * * * The direct proceeding in equity will save time, expense, and a multiplicity of suits, and settle finally the rights of all concerned in one litigation.” Kilbourn v. Sunderland, supra; Joy v. St. Louis, 138 U. S. 1, 49, 11 Sup. Ct. 243, 34 L.

Ed. 843; United States v. Union Pacific Ry., 160 U. S. 1, 51, 16 Sup. Ct. 190, 40 L. Ed. 319; Walla Walla v. Walla Walla W. C., 172 U. S. 1, 12, 19 Sup. Ct. 77, 43 L. Ed. 341. In carrying out these principles, the courts have held that, where a court of equity is authorized to take jurisdiction over a cause for any purpose, it may retain the cause for all purposes within the scope of the equities to be enforced, and proceed to a final determination of all the matters at issue therein. May v. Le Claire, 11 Wall. 217, 236, 20 L. Ed. 50; Ober v. Gallagher, 93 U. S. 199, 23 L. Ed. 829; Ward v. Todd, 103 U.

S. 327, 329, 26 L. Ed. 339; Hopkins v. Grimshaw, 165 U. S. 342, 358, 17 Sup. Ct. 401, 41 L. Ed. 739; Smyth v. Ames, 169 U. S. 466, 516, 18 Sup. Ct. 418, 42 L. Ed. 819; Peck v. Ayers & Lord Tie Co., 116 Fed. 273, 275, 53 C. C. A. 551; Douglas Co. v. Tennessee Lumber Mfg. Co., 118 Fed. 438, 55 C. C. A. 254; 1 Pomeroy’s Eq. Jur. § 181; Lynch v. Railway Co., 129 N. Y. 274, 280, 29 N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep. 523; Whitehead v. Sweet, 326 Cal. 67, 75, 76, 58 Pac. 376. That the bill upon its face presents sufficient averments of fact to authorize equitable interposition and relief cannot be questioned.

Appellant virtually concedes this. But it argues that, when probed to the bottom, it will be found that all the so-called grounds of equitable relief have been settled and disposed of either by the mutual agreements of the railroad company and the government, or by the express provisions of the act of Congress of March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp.

St. 1901, p. 1603], and that the sole question really involved herein is simply a money demand on the part of the government against the railroad company; that the other parties named as defendants have no interest in the litigation, their rights having been previously settled, either by prior litigation or the acts of Congress; and hence that it legally follows that all the equitable allegations of the bill could not have been woven into the complaint for any other purpose than that of giving color of right to sue in equity, a proceeding which, it is claimed, has not received the sanction of the courts, and is wholly inadmissible.

The authorities cited and relied upon by appellant upon this branch of the case are substantially to the effect that, as was stated by the court in Buzard v. Houston, 119 U. S. 347, 352, 7 Sup. Ct. 249, 252, 30 L. Ed. 451: “In cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a hill in equity to obtain only a decree for the payment of money by way of damages, when the like amount can be recovered at law in an action sounding in’tort or for money had and received. Parkersburg v. Brown, 106 U. S. 487, 500 [1 Sup. Ct. 442, 27 L.

Ed. 238]; Ambler v. Choteau, 107 U. S. 586 [1 Sup. Ct. 556, 27 L. Ed. 322]; Litchfield v. Ballou, 114 U. S. 190 [5 Sup. Ct. 820, 29 L. Ed. 132].” In that case the court expressly recognized fhe rule, which we have before stated, that a suit in equity to enforce a legal right can be brought when such court can give more complete and effectual relief in kind or degree on the equity side than on the common-law side. In Parkersburg v. Brown, supra, the bill as filed asked for equitable relief, and sought to charge the city as a trustee, and to reach the property covered by the deed of trust.

The relief granted by the decree was a simple money judgment against the city for the interest due on the bonds at the date of the decree, based on the legal liability of the city to pay the bonds and coupons, and the court said: “For this there was a plain, adequate, and complete remedy at law in each bondholder, if the city was thus liable. So that the decree made could not be sustained in any event.” This character of cases has no special application to a case like the present. In Ambler v.

Choteau, supra, the only point decided was to the effect that where the object of a suit in chancery is the recovery of the damages which the complainant alleges he has sustained by reason of an unlawful and fraudulent conspiracy to cheat him out of his interest in an original invention, which is the subject-matter of the controversy, the bill should be dismissed, as his remedy is at law. In Litchfield v. Ballou, supra, it was held that a bill in chancery which sets forth facts that would support an action at law for money had and received fails for want of equity jurisdiction. In Scott v. Neely, 140 U.

S. 106, 110, 11 Sup. Ct. 712, 714, 35 L. Ed. 358, the court said: “All actions wbicb seek to recover specific property, real or personal, with or without damages for its detention, or a money judgment for breach of a simple contract, or as damages for injury to person or property, are legal actions, and can be brought in the federal courts only on their law side.” These cases illustrate the grounds upon which appellant relies to sustain its contention. They, in our opinion, fall short of lending any aid or comfort in that direction. The facts in the cases are readily distinguishable from the case at bar.

It may be that the United States could have maintained an action at law for the amount of money found to be due from appellant on the familiar and well-recognized principle announced in Gaines v. Miller, 111 U. S. 395, 397, 4 Sup. Ct. 426, 28 L. Ed. 466, and other authorities cited by appellant, that whenever a person or corporation has received money to which in equity and good' conscience another is entitled, the law creates a promise by the former to pay the latter, and the obligation may be enforced in assumpsit for money had and received, if that is the only question involved in the action.

The suit in hand is, however, of a different character. It is true that one of the objects of the suit was to obtain a judgment and decree against appellant for the amount of money claimed to be due the United States, but it also involved the necessity of ascertaining and establishing the rights of the bona fide purchasers of certain of the lands, the rights of other parties to whom land had been sold by appellant to purchasers under ex-ecutory contracts that had not been fully executed, and the rights of certain bondholders claiming an interest in some of the lands included in the grant to appellant.

It did not appear upon the hear-; ing that the averments in the bill of complaint concerning these matters were false or did .not .exist,.nor.did .the complainant obtain any relief by 'the decree which the court was not authorized, upon the showing made, to grant. We are of opinion that the government had the right to bring a suit which would settle all these matters, and prevent any further litigation upon any of the questions involved herein.

The amount of money, if any, due from appellant, could be ascertained by a full consideration of all these matters, and some of the questions raised and determined could not be reached and determined in a court of law. The same considerations which invoke the jurisdiction may control the remedy. A court of equity, with its flexible procedure and far-reaching powers, could alone furnish a full, complete, and adequate remedy, to which the government was entitled, by so molding and applying the remedy as to reach the ends of justice with reference to all the parties and all the issues raised by the bill.

In 1 Story’s Eq. Jur. (12th Ed.) § 33, the author said: “Perhaps the most general, if not the most precise, description of a court of equity, in the English and American sense, is that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for, if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity.

And.it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in future; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is therefore sometimes concurrent with the jurisdiction of a court of law, it is sometimes exclusive of it, and it is sometimes auxiliary to it” The act of Congress of March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp.

St. 1901, p. 1603], limiting the time in which suits for the cancellation of patents may be brought, provides that in certain specified cases no suits need be brought for the cancellation of patents, nor for the confirmation of the title held by bona fide purchasers. In

section 2 it is provided: “That if any person claiming to be a bona fide purchaser of any lands erroneously patented or certified shall present his claim to the Secretary of the Interior prior to the institution of a suit to cancel a patent or certification, and if it shall appear that he is a bona fide purchaser, the Secretary of the Interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the certification was made, for the value of said land, which in no case shall be more than the minimum government price thereof, and the title of such claimant shall stand confirmed.” It then further provides that; “An adverse decision by the Secretary of the Interior on the bona fides of such claimant shall not be conclusive of his rights, and if such claimant, or one claiming to be a bona fide purchaser, but who has not submitted his claim to the Secretary of the Interior, is made a party to such suit, and if found by thq, court to be a bona fide purchaser, the court shall decree a confirmation of the title, and shall render a decree in behalf of the United States against the patentee, corporation, company, person, or association of persons for whose benefit the certification was made for the value of the land as hereinbefore provided.

Any bona fide purchaser of lands patented or eertified to a railroad company, and who is not made a party to such suit, and who has not submitted his claim to the Secretary of the Interior, may establish his right as such bona fide purchaser in any United States court having jurisdiction of the subject-matter.” Then, in

section 3, after specifying several conditions, it provides: “If it shall appear that such person or corporation is a bona fide purchaser as aforesaid, or that such persons or corporations are such bona fide purchasers, then no such suit shall be instituted and the title of such claimant or claimants shall stand confirmed; but the Secretary of the Interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the patent was issued or certification was made for the value of the land as herein-before specified.” The act of Congress did not create the debt due from the railroad company to the government; it did not “adjudge or decree that the corporation thereby became the debtor of the United States”; nor was the passage of the act “an attempt by retrospective statute to deprive citizens of property without due process of law.” It was not a “usurpation of judicial power.” The railroad company was not “condemned without a' hearing to pay a debt.” The ingenious argument of appellant in relation to these matters is not supported by a full consideration and proper

interpretation of the various provisions of the acts of March 3, 1887, c. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], February 12, 1896, c. 18, 29 Stat. 6 [U. S. Comp. St. 1901, p. 1596], and March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], All laws necessarily bear with them all the powers or incidents necessary to fully carry out their intention. One of Domat’s rules, referred to in Sedg. on Constr. of Stat. & Const. L. (2d Ed.) 243, is that: “All laws, whether natural or arbitrary, are intended to produce results conformable to that general idea of justice in which they originate.

Consequently, their application must be governed by the demands of this general spirit of justice; or, in regard to natural laws, by equity; and, in regard to positive or arbitrary laws, by the intention of the legislator. In this distinction and discrimination the science of law mainly consists.” The obligation of the railroad company, or debt created, arises from the facts set forth in the bill of complaint and proven at the trial. The railroad company had received patents for lands under an erroneous

interpretation of the law. It was a clear mistake, and conveyed no rights or title whatever to the railroad company to any of the lands in question. The company sold a portion of the lands to bona fide purchasers, in many cases receiving more than the government price therefor. Not having any title to the lands, and having received the money for the lands it sold to bona fide purchasers, it must be held responsible to pay the amount specified in the act therefor.

As was aptly stated by Judge Ross in the court below: “The company, having sold, and disposed of the government’s property without right, was, regardless of the statute, liable to the government, if not for its true value, certainly for the amount of money received by the company therefor, and which it had no right to retain; for, having received the land illegally, and disposed of it for money, there was an implied contract on the part of the company to pay over the money so received to its true owner.” Annexed to the bill of complaint are two exhibits: Exhibit A, showing lands that were erroneously patented by the United States to the Southern Pacific Company prior to March 2, 1896, containing in the aggregate 30,062.79 acres (the record shows that a portion of these lands were sold by executory contracts, which remain unexecuted) ; Exhibit B, showing so much of the lands embraced in Exhibit A as were erroneously patented by the United States to the Southern Pacific Company prior to March 2, 1896, and which, prior to said date, had been sold by said company to bona fide purchasers, containing in the aggregate 16,512.56 acres.

Most of the lands described in these exhibits are identical. Exhibit A is virtually a copy of Exhibit B, with here and there an additional tract. The contention of appellant that “the splitting of demands by voluntary dismissal of part thereof from suit No. 600 is a bar to this suit” cannot be sustained.

With reference to this contention, the bill of complaint avers : “That heretofore, on the 7th day of January, 1898, another suit was depending in this court, brought by your orator against said Southern Pacific Railroad Company, and numbered 600, to vacate and annul patents to certain lands, including those lands described in Exhibit B annexed to this bill. That said Southern Pacific Railroad Company filed answer therein, and alleged, in substance and effect, that the said tracts of land (Exhibit

B) had been, prior to March 2, 1896, sold by said railroad company to purchasers in good faith and for value, and which purchasers were bona fide purchasers of said lands within the meaning of the acts of Congress in that behalf. * * * Tour orator, relying upon the truth of such averments and of such testimony as to those lands described in said Exhibit B, dismissed from said case 600 the lands described in said Exhibit B, without prejudice.” The bona fide purchasers who had bought their lands from the railroad company were not made parties to that suit, and no adjudication could have been made therein as to the title of lands held by such bona fide purchasers.

In the present suit the bona fide purchasers of the land are properly represented. An adjudication of their title and rights, and a recovery from the railroad company, is sought by the government for the price of the land which had been erroneously patented and sold. It will thus be seen, not only that the parties to these suits are different, but the subject-matter of the suit is also different.

The relief sought and the issues raised are by no means identical; but a discussion of this point is wholly unnecessary, because the other suit (No. 600) as to certain lands was dismissed without prejudice, and such a dismissal cannot be pleaded in bar (Hughes v. United States, 4 Wall. 232, 237, 18 L. Ed. 303; Bunker Hill & Sullivan M. Co. v. Shoshone M. Co., 109 Fed. 504, 507, 47 C. C. A. 200, and authorities there cited), nor can it in any other manner affect the rights of the government in the present suit. The decree of the Circuit Court is affirmed, with costs.