[641]

1. The objection taken by the demurrer of Aurelia is that, being the wife of Colburn Barrell, she cannot be joined with him as a codefendant in an action for the possession of real property, of which both are alleged to be in the occupation. It is founded on the theory that, by the common law, her identity is so merged in his that she cannot have possession of such property independently of him. If there be any such rule of the common law, upon which we affirm nothing, it has been abolished in Oregon. By a Statute of that State, approved on the 21st of October, 1880, all laws which impose or recognize any civil disabilities of the wife, not imposed or recogthat the right to vote and hold office was not conferred upon her. And "for any unjust usurpation of her property or natural rights." she was declared to have the same right to appeal to the courts of law and equity for redress that the husband has. In that State she can hold property jointly with him, or separately from him. There would seem, therefore, to be no sound reason why, if in possession with him of property which rightfully belongs to another, she may not be jointly sued with him for its recovery. In the present case she claimed the larger part of the land in controversy as her separate property

the sale. The plaintiff also introduced the con- | sale under the decree of the state court, entered
veyance by the sheriff to William S. Ladd, on the 23d of March, 1880.
bearing date on the 25th of August, 1880, and
also a deed of the premises by Ladd and wife
to the plaintiff on the 28th of September, 1882.
No evidence was offered as to the alleged collu-
sive purpose in the execution of this deed, to
give the federal court jurisdiction of the action.
The transcript of the record of the suit showed
what purported to be a final decree, entered on
the 19th of March, 1880, and subsequently a
second decree, also purporting to be a final de-
cree, entered on the 23d of March, 1880. The
two decrees differed only in the manner in
which the property to be sold was described.
The difference arose in this way: At the re-
quest of counsel, it was referred to a referee to
examine and report upon the propriety of offer-nized as to the husband, were repealed, except
ing the property for sale in parcels, so as to
enhance the proceeds therefrom. The referee
reported a scheme dividing the property into
parcels, and the court directed it to be sold ac-
cordingly, upon the condition that after it had
been sold in parcels, if anyone should bid more
for it as a whole, it should be sold to him. In
the first decree the metes and bounds of the
seven parcels are given separately. In the sec-
ond, the metes and bounds of the several par-
cels are given separately, and of the whole as
one tract. The process under which the sale
was made was a copy of the last decree. When
the transcript was offered in evidence, counsel
objected to its admissibility, on the ground that
the record showed that the final decree was
made and entered on the 19th of March, 1880,
and that the court had no jurisdiction to enter
the second decree, under which the sale was
made. The court overruled the objection, and
the defendants excepted. The defendants then
offered in evidence a copy of the judgment
lien docket of the state circuit court, showing
that the decree was docketed on the 19th of
March, 1880. No other evidence having been
produced, the court instructed the jury that
the sheriff's deed conveyed the estate of the
defendants to the grantee therein, William 8.
Ladd, and that the conveyance from Ladd and
wife to the plaintiff vested the estate in him,
and, therefore, that the verdict must be for the
plaintiff. To this instruction counsel excepted.
The jury accordingly gave a verdict for the The objection, however, is entirely disposed
plaintiff, upon which judgment was entered; of by the decree in the state court. The rights
and to review that judgment the defendants of the parties under the conveyance of the de-
have brought the case here on a writ of error. fendants to Ladd, of January 17, 1877, were
Messrs. W.W.Upton and W. W. Chapman, fully considered and determined in that case.
for plaintiffs in error.
The conveyance was adjudged to be a mort-
Messrs. S. Shellabarger and J. M. Wil-gage. The rights of the defendants in the
son, for defendant in error.

Mr. Justice Field delivered the opinion of the court, as follows:

Of the numerous points made by the defendants below, the plaintiffs in error here, only three require notice. The others are either immaterial or unsupported by the record. The three are these:

1. The ruling of the court on the demurrer of Aurelia to the complaint;

2. The ruling of the court that the decree of the state court was conclusive as to the right of Aurelia to mortgage the property for the debt of her husband; and,

8. The ruling sustaining the validity of the

2. The second objection, that the decree of the state court in the suit by Ladd against the defendants does not bar the right of Aurelia to the property, is founded upon her supposed inability to mortgage her property to secure a debt of her husband under section five of article XV of the State Constitution, which declares "That the property and possessory rights of every married woman at the time of marriage, or afterwards acquired by gift, devise or inheritance, shall not be subject to the debts or contracts of the husband.' But that clause merely preserves the property of the wife from its compulsory subjection to his debts or contracts. It was not designed to control her vol. untary disposal of it, and in the absence of other restrictions she could mortgage it to secure the payment of a debt owing by him.

property were foreclosed, and the property
was ordered to be sold, and was sold, and the
sale was confirmed by the court. The convey-
ance to Ladd as the purchaser at such sale
transferred all the estate of the defendants in
the property. The question as to her ability to
mortgage the property cannot be raised again
in this case; it has been finally adjudged
against her present contention.

3. The two decrees in the suit in the state
court do not conflict in the matters adjudged.
The latter decree differs from the first merely
in giving the boundaries of the property to be
sold as one tract, and also the boundaries of
each of the seven parcels into which it was
divided. This addition to the original decree

[642]

[6431

[584]

could be made by the court during the term in | 868], and Ex parte Royall, 117 U. S. 254
which that decree was rendered. The court [29:872], rest. This practice was suggested by
could lose jurisdiction over it only by the ad- us and followed in Wales v. Whitney, 114 U. S.
journment of the term with no motion pending | 564 [29:277].
respecting it. When the second decree was
made, it would, as stated by the learned dis-
trict judge, have been a better course, "more
orderly and convenient," as he expresses it, "to
have referred to the first one, and stated in
what particular the latter was intended to
modify, supplement or supersede the former."
But this was not essential; a comparison of the
two decrees discloses the additions made to the
first one.

Judgment affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

Ex Parte:

NORTHERN PACIFIC RAILROAD [561]
COMPANY, Plff. in Err.,

อ.

MARK PAINE.

(See 8. C. Reporter's ed. 561-566.)

Joinder of legal and equitable defenses in state
court-upon removal, admissions in equitable
defense bind defendant-amendment.

1. In the courts of the United States, to legal
actions legal defenses only can be interposed. This
court in which legal and equitable defenses may be
united.

In the Matter of STEPHEN P. MIRZAN, rule applies to an action removed from a state

Petitioner.

(See 8. C. Reporter's ed. 584-586.)

2. Upon such removal the defendant may amend by striking out his equitable defense. If he fails to amend, an admission contained in said defense binds him to the same extent it would have done in

Tabeas corpus-court refuses to issue-Act of the state court.
March 3, 1885-discretion.

This court will not issue a writ of habeas corpus,
even if it has the power to do so, in cases where it
may as well be done in the circuit courts, in the ab-
sence of special circumstances making direct action
necessary or expedient.

Motion for leave to file submitted Dec. 20, 1886.
Decided Jan. 10, 1887.

ON

8. In an action to recover the value of timber alleged to have been taken from plaintiff's land, an admission in the answer, of the execution of a deed to him and its delivery to its own land commissioner, by the defendant as former owner, is sufficient proof of title in the plaintiff, although there is no evidence of the delivery of the deed; such delivery being presumed after the lapse of months. 4. A mere equitable claim, which a court of equity may enforce, will not sustain an action at law for the recovery of land or anything severed therefrom.

5. An instruction requested by the defendant, relating to a license given by it, when owner of the tion, was properly refused, there being no evidence lands, to a lumber company to cut the logs in quesof the plaintiff's knowledge of it.

[No. 90.]

Argued Dec. 13, 1886. Decided Jan. 10, 1887.
N ERROR to the Circuit Court of the United

N motion for leave to file a petition for a
writ of habeas corpus. Denied.
The petitioner, a citizen of the United States,
being, in the year 1880, charged with murder at
Alexandria, in Egypt, was there tried without
indictment by a grand jury before the Minister
of the United States sitting alone, and was by
him convicted and sentenced to be hung. The
sentence was subsequently commuted to im-
prisonment for life by the President, the peti-firmed.
tioner being removed to the Penitentiary of
New York at Albany where he is now confined.
It is now sought to question the validity of the
proceedings which led to his conviction and
confinement.

States for the District of Minnesota. Af

The history and facts of the case appear in the opinion of the court.

Mr. W. P. Clough, for plaintiff in error: At the close of his case the plaintiff had failed to show that the title to the logs was in

Messrs. Lorenzo Ullo and Frederick W. him.
Whitridge, for petitioner.

No opposing counsel.

To sustain an action of trover ownership must be of the legal title. This rule has been repeatedly applied by this court in cases of

Mr. Chief Justice Waite delivered the opin- ejectment, and there is no distinction between ion of the court:

This motion is denied. As since the Act of March 3, 1885, 23 Stat. at L. 437, an appeal lies to this court from the judgments of the circuit courts in habeas corpus cases, this court will not issue such a writ, even if it has the powerabout which it is unnecessary now to express an opinion-in cases where it may as well be done in the proper circuit court, if there are no special circumstances in the case making direct action or intervention by this court necessary or expedient. In this case there are no such special circumstances, and the application may as well be made to the Circuit Court for the Northern District of New York as here. Our right to exercise this discretion is shown by the principles on which the decisions in Ex parte Royall, Nos. 1 and 2, 117 U. S. 241 [Bk. 29, L. ed.

ejectment and trover in this respect.

Watkins v. Holman, 16 Pet. 25 (41 U. S. bk. 10, L. ed. 873); Hickey v. Stewart, 3 How. 750 (11:814); Agricultural Bank v. Rice, 4 How. 225 (11:949); Smith v. McCann, 24 How. 898 (16:714).

The allegations of the answer were insufficient to make out the plaintiff's title for the purpose of an action in trover.

The equitable defense set up in the answer
formed no part of the pleadings after the re-
moval of the cause to the court below.

Messrs. Eugene M. Wilson and M. F.
Morris, for defendant in error.

Mr. Justice Field delivered the opinion of [562] the court:

This case was brought by Paine, the plaintiff

The defenses set up are legal and equitable, a proceeding permissible by the laws of Minnesota, in which State the action was brought. The legal defenses were two: first, a denial of the ownership of the logs by the plaintiff, and of the conversion of them by the defendant, and of their value beyond $7,882; second, that the logs were cut by the Knife Falls Lumber Company, a corporation of the State, with the knowledge and consent of the plaintiff, and were by that company sold and delivered to the defendant prior to the commencement of this action.

below, against the Northern Pacific Railroad | for relief against the plaintiff, he must seek to Company for taking and converting to its owu enforce them by a separate suit in equity. If use 6,180 pine saw logs, alleged to be his prop- his equitable grounds are deemed sufficient, he erty, and of the value of $10,442. may thus stay the further prosecution of the action at law, or be furnished with matter which may be set up as a legal defense to it. Upon the removal, therefore, of the action to the circuit court, the equitable defense could not be considered. It would have been entirely proper for the defendant to have amended his answer by striking out that portion embracing this defense. But he did not take that course, and the plaintiff relied upon its allegations as evidence. If the pleadings are construed as in the state court, there was an admission by them of an important fact in the case; namely, of title by a deed from the former owner of the The equitable defense was substantially this. lands. In the state courts, where an answer that in 1880 the defendant was the owner of the sets up several distinct defenses, a denial in lands from which the logs in controversy were one is held to be qualified by an admission in cut, and that its land commissioner, under another. Thus, in Derby v. Gallup, 5 Minn. whose charge the sales of its lands were con- 119, where the action was replevin for unlawducted, and his clerk, conspired with the plaint- fully taking the plaintiff's goods, and the aniff to defraud the Company by procuring a sale swer contained two defenses: (1), a general de[563] of the lands to be made, nominally to him, but nial of the allegations of the complaint; and (2), really for the benefit of the three, at a price a justification of the taking under a levy upon representing only a small fraction of the actual execution,-it was held that the answer admitted value of the property; that, in execution of this the taking, for the purposes of the trial, and to fraudulent purpose, the land commissioner that extent the second defense affected the first. made out a contract of sale, in the form com- In Scott v. King, 7 Minn. 494 the same docmonly used by the Company, promising for the trine was declared, the court holding that a genprice named to convey the lands to the plaint-eral denial in one defense, inconsistent with iff; and that the Company, upon receiving in its preferred stock at par the amount of the consideration mentioned, and being ignorant of the facts and of the character and value of the lands, and relying upon its commissioner to protect its interests, executed a conveyance of the lands in the usual form to the plaintiff, and placed it in the hands of the commissioner for delivery to him; that the lands thus sold were pine timber lands, and the Company was ignorant of their character and value until April, 1881, when it repudiated and disaffirmed the sale, and filed a bill in the Circuit Court of the United States for the District of Minnesota for its annulment, and the reconveyance to it of the lands, offering at the same time to return to the plaintiff the cost of the preferred stock received; which bill is now pending and undetermined.

The relief prayed in the answer was: first, that the plaintiff take nothing by his action; second, that the alleged purchase of the lands in the name of Paine be adjudged void as against the defendant; third, that an account be taken of the cost of the shares of preferred stock received in payment for the lands, and that on the repayment by the Company of such cost, the plaintiff be decreed to release and reconvey the fands to the Company.

The plaintiff filed a replication, denying the allegations of fraud and fraudulent combination stated in the equitable defense, and any license or assent by him to the lumber company to cut the logs.

The case was then removed, on application of the defendant, from the state court to the Circuit Court of the United States. In that court the equitable defense could not be made available. In the courts of the United States, to legal actions legal defenses only can be interposed. If the defendant have equitable grounds

special matter alleged in a second defense, is to
be considered as modified thereby. See also
Zimmerman v. Lamb, Id. 421. The admission
of the execution of a deed by the former owner,
and thus of title in the plaintiff, if it could be
used, obviated the want of other proof on that
point. In order that the plaintiff might re-
cover, it devolved on him to prove, not merely
the value of the logs taken, but that he owned
them, or was entitled to their possession. It is
not contended that he acquired any title to them
except as annexed to the lands from which they
were cut. Standing timber is a part of the
realty and goes with its title or right of posses-
sion. When severed from the soil its character
as realty is changed; it has become personalty,
but the title to it continues as before.

The right, therefore, to recover for what is
severed from the freehold depends upon the
right to the freehold itself. If the plaintiff is
in possession, he is presumed to be lawfully so,
having the right of possession, and, therefore,
entitled to what is severed. If he is out of pos-
session, he must show a title to the land, or
right to its possession. A mere equitable claim,
which a court of equity may enforce, will not
sustain an action at law for the recovery of the
land or anything severed from it. Halleck v.
Mixer, 16 Cal. 574; Mather v. Trinity Church,
3 Serg. & R. 509; Harlan v. Harlan, 15 Pa.
507.

In the case at bar, no proof was offered by the plaintiff of his title to the land from which the logs in controversy were cut, or of his ownership in any other way, he relying upon the admission to that effect contained in the paragraph of the answer setting up the equitable defense. This defense was not, as already stated, available in the action at law after the removal of the case to the Circuit Court of the United States, and the answer might have been

[564]

[565]

[566] to the lumber company to cut the logs in ques. ERROR to the Circuit Court of the United

[561]

James H. McKenney, Clerk, Sup. Court, U. 8. stances calculated to excite suspicion and, hav

It is not necessary that a party should know 1. A bank in discounting commercial paper does of the specific fraud, or know all circumstances

of it. If he suspected a fraud, and chose not to ask, lest he should know, he had sufficient notice.

Dan. Neg. Inst. 799, 3d ed.; Oakeley v. Ooddeen, 2 Fost. & F. 656; Raphael v. Bank of England, 17 C. B. 161; 1 Pars. Bills, 259; Story, Bills, 225, 4th ed.

Messrs. Oliver H. Dean, William Warner, James Hagerman and Finches, Lynde & Miller, for defendant in error:

The rule announced in Goodman v. Simonds, 20 How. 343 (61 U. S. bk. 15, L. ed. 934), defining the rights of the holder of negotiable paper, has become firmly established as a part of the commercial law of this country.

This doctrine was fully considered again in Murray v. Lardner, 2 Wall. 110 (69 U. S. bk. 17, L. ed. 857), and is restated in the following language:

"The possession of such (negotiable) puper carries the title with it to the holder. The possession and title are one and inseparable.' The party who takes it before due for a valuable consideration, without knowledge of any defect of title and in good faith, holds it by a title valid against all the world.

sall v. Russell, 29 N. Y. 249; Goodman v. Sim
onds, 20 How. 365 (61 U. S. 15:941); Murray
v. Lardner, 2 Wall. 121 (69_U. S. 17:859);
Goodman v. Harvey, 4 Ad. & E. 870.

Mr. Justice Field delivered the opinion of [553] the court:

In October, 1861, the plaintiffs in error, Goetz and Luening, were partners in the business of buying and selling hides on commission, at Milwaukee, Wisconsin. At that time one Du Bois was a dealer in hides at Kansas City, Missouri. On the tenth of that month DuBois telegraphed to them from Kansas City, inquiring what they could sell four hundred green, salt hides for; and what they would advance on a bill of lading of the shipment. The firm answered by telegram, stating the market price of light hides on that day, and that they would pay a draft" for two thirds value, bill of lading attached." On the same day, the firm sent a letter to Du Bois, repeating the message, and adding that if the hides were in good condition and number one they could sell them readily: that their commission was 24 per cent; and that they would sell all hides that he might ship to the market at Milwaukee. Upon this understanding, and during the same month, Du Bois drew upon the firm five drafts, amounting in the aggregate to $9,395, which were accepted, and, with the exception of the fifth one, were paid. The fifth one, which was for $2,000, was protested for nonpayment. To each of the drafts were attached a bill of lading and an invoice of the shipment. The bill of lading purported to have been issued by the Chicago and Alton Railroad Company, stating that it had received hides, giving the number See also Hotchkiss v. Nat. Banks, 21 Wall. and estimated weight, to be transported on the 354 (88 U. S. bk. 22, L. ed. 645); Collins v. road from Kansas City to Milwaukee, and Gilbert, 94 U. S. 753 (24:170); Shaw v. R. R. marked and consigned as follows: "To shipCo. 101 U. S. 557 (25: 892); Swift v. Smith, 102 per's order. Notify Goetz and Luening, MilU. S. 442 (26:193); Belmont Branch Bank v.waukee, Wis." The invoice purported to give Hoge, 35 N. Y. 67; Welch v. Sage, 47 N. Y. the net weight in pounds of the hides shipped, 143; Hamilton v. Marks, 63 Mo. 167. and the market price at Milwaukee, and their The indorsement by the Bank of the bills and estimated aggregate value, referring to the some of the accompanying papers is no guar-sight draft for two thirds of the amount. anty of their genuineness.

Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title. That result can be produced only by bad faith on his part.

The burden of proof lies on the person who assails the right claimed by the party in possession.

Such is the settled law of this court, and we feel no disposition to depart from it."

Sweeney v. Easter, 1 Wall. 166 (68 U. S. bk. 17, L. ed. 681); White v. Nat. Bank, 102 U.S. 659 (26: 251); First Nat. Bank of Chicago v. Reno Co. Bank, 1 McCrary, 491; 8. C. 8 Fed. Rep. 257. See also The Sally Magee, 3 Wall. 451 (70 U. S. 18: 197); Conard v. Atlantic Ins. Co. etc. 1 Pet. 386 (26 U. S. 7: 189).

The declarations of the defendant Bank's president, having been made after the event, and not being shown to be any part of the res gesta, can in no way bind the defendant as admissions.

Bank v. Steward, 37 Me. 519; Luby v. R. R. Co. 17 N. Y. 131; Packet Co. v. Clough, 20 Wall. 528 (87 U. S. bk. 22, L. ed. 406); Hazleton v. Union Bank of Columbus, 32 Wis. 34; Randall v. N. W. Telegraph Co. 54 Wis. 140; McDermott v. Han. & St. Jo. R. R. Co. 73 Mo. -516; Adams v. H. & St. Jo. R. R. Co. 74 Mo. 553.

The court properly directed a verdict for the defendant in error.

The drafts were made payable to Thornton, the cashier of the Bank of Kansas City, and were cashed as drawn, the Bank paying their full face, less the usual rate of exchange on Milwaukee. The amount, as each was cashed, was passed to the credit of DuBois, and was checked out by him in the usual course of business, within a few days.

The drafts were sent by the Bank to its correspondent at Chicago, indorsed "for collec tion on its account, and by him were for warded to Milwaukee. The invoices of some of the shipments were indorsed in the same way. The bills of lading were indorsed by Du Bois, per J. MacLellon, his clerk.

The signatures to the bills of lading proved to be forgeries, on which account Goetz and Luening refused to pay the fifth draft. The Bank thereupon brought an action against them for the amount, in the Circuit Court of the United States. They defended, and set up as a counterclaim the sums they had paid on the four drafts. At the same time, they commenced an action in the state court against the Bank to recover the money paid on those four The latter action was removed, on ap

Oscanyan v. Arms Co. 103 U. S. 262 (Bk. 26, L. ed. 540); Welch v. Sage, 47 N. Y. 147; Belmont Branch Bank v. Hoge, 35 N.Y. 67; Bird-drafts.

[554]