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There are numerous cases where creditors have been permitted to resort to equity in the first instance to enforce a statutory liability of stockholders, but these were cases where the statute authorized a direct action, and the question has generally been whether a court of law or of equity was the proper forum. These cases, of course, have no application here.

Treating the suit as a creditor's bill, the complainants in this case are merely creditors at large. True, some of them have recovered judgments and issued executions which have been returned unsatisfied against the corporation in the state courts of Missouri; but such judgments here are only contract debts, and do not authorize the exercise of auxiliary jurisdiction. Claflin v. McDermott, 12 FED. REP. 375; Tarbell v. Griggs, 3 Paige, 207. They do not have the force and operation here of domestic judgments, except for the purposes of evidence. McElmoyle v. Cohen, 13 Pet. 312.

The more doubtful question is whether the insolvency of the corporation, and the fact that it has surrendered all its property and franchises, and ceased to exercise its functions, does not dispense with the necessity of pursuing it at law. By the decisions of the courts of Missouri it is practically dissolved, (Moore v. Whitcomb, 48 Mo. 543; State Savings Ins. v. Kellogg, 52 Mo. 583; Perry v. Turner, 55 Mo. 418;) and certainly it can have no more vitality here than it has in the sovereignty that created it, and from which it cannot migrate.

On the other hand it cannot be doubted that a corporation is capable of being sued until it is formally dissolved, and it will not be seriously contended that the futility of the proceeding will justify a relaxation of the strict rule requiring the creditor to exhaust his legal remedy. It does not follow because a corporation is so far in nubibus that it need not be made a party to an action that a creditor will be excused from pursuing it at law before resorting to a creditor's bill.. If a creditor's bill can be maintained in this jurisdiction whenever it appears that the debtor has no leviable property, and like this corporation, is moribund, it can be also when the debtor is shown to be beyond the reach of the process of the court. It would doubtless be convenient for creditors in many instances if they were permitted to maintain a creditor's bill upon such a theory, but in the absence of legislation, or any satisfactory precedent, the right to do so cannot be recognized. The bill is accordingly dismissea.


STRONG and others v. WIGGINS, Ex'r, etc.

(Circuit Court, W. D. Pennsylvania. July Term, 1873.)


Complainants, as heirs of Clarissa Howd, deceased, filed an amended bill, alleging that said Clarissa and her deceased husband, before their marriage, agreed that each “ should have nothing to do with the other's property; that his should go to his children, and hers to her heirs and relatives ;' that upon the death of said Clarissa her husband had asserted his exclusive ownership to all of her property, and devised the same to his two children, against whom and the executor this hill is filed. Held, upon a consideration of the facts, that there was nothing in this case to give an equity court jurisdiction ; that the only effect of such an agreement would be to estop the devisees and executor of the deceased husband from asserting title to the property; that the parties must proceed at law; and, the real estate having been converted into personal, the administrator of said Clarissa was the proper party to sue at law, and that the legal representatives of said Clarissa could only acquire title through administration on her estate.

In Equity.

McKENNAN, C. J. This bill is filed by the complainants, as relatives by consanguinity of Clarissa Howd, deceased, against the executor of the will of her deceased husband and others, and prays for a decree that they deliver up or pay the value to the complainants of all the property which the said husband of Mrs. Howd derived from her estate. It alleges that Clarissa Howd was childless; that she was the recipient of a large quantity of real and personal property under the will of her first husband, Frederic Miles, which was intended, ultimately, for her blood relations; that her second husband fraudulently induced her to sell and convert into personalty a large portion of her real estate; that he had fraudulently prevented her from making a will disposing of her property among her blood relatives; that she died intestate and without issue, and that the complainants are her collateral relatives; and that, upon her death, her husband asserted his exclusive ownership of all her estate, and made his will devising and bequeathing the same to his two children. These are the main averments of the bill, as it was originally framed.

The proofs fall far short of sustaining the hypothesis of actual fraud propounded in the bill. Indeed, they show that on the only occasion when the making of a will by Mrs. Howd was discussed, she was induced to forego such purpose by the advice of one of the com. plainants, John C. Strong, Esq.; certainly not by any improper interference on the part of her husband. So, also, as to the sale of

Mrs. Howd's real estate; the proofs altogether i fail to sustain the allegations of the bill touching the motives and agency of her husband in it.

There is evidence, however, of statements and declarations by Mr. and Mrs. Howd that, before their marriage, it was understood and agreed between them that each “should have nothing to do with the other's property; that his should go to his children, and hers to her heirs and relatives." And the bill has been so amended as to make this alleged agreement the basis of the relief prayed for.

Assuming that the ownership of the property of Clarissa Howd at her death was vested by the alleged antenuptial contract in the complainants, it is a contest between parties, each of whom claims title to the property, and the determination of this belongs properly to a court of law, in an appropriate action, and not to a court of equity; or, if the property is wrongfully in the possession of the respondents, without any claim of ownership, a court of equity is not the proper tribunal in which to recover it. Standing upon the same footing as if they had acquired the property in any other mode, a court of law is the forum in which alone they may enforce their ownership. If they claim in the character of heirs at law of Clarissa Howd, as they do, there is no such fiduciary relation between them and the respondents as would give a court of equity jurisdiction to make the decree prayed for. The only effect of the antenuptial contract would be to estop Sylvester Howd and his representatives from asserting his right as husband to the property of his deceased wife. But it could not render available to them a jurisdiction or a remedy to which they could not otherwise resort. The law devolves upon the personal representative of Clarissa Howd the title to all her personal property, and it is only through him that it can be asserted. There is, then, neither legal ownership, nor the privity incidental to the relation of trustee and cestui que trust, which would supply a basis of accountability by the respondents to the complainants. To whatever accountability the respondents are subject, it is to the legal representative of Clarissa Howd. Whatever right the complainants may have is as distributees of her estate, when it is collected and ascertained by the process of legal administration.

The bill is therefore dismissed at the costs of the complainants, but without prejudice.

ACHESON, D. J. I concur fully in the foregoing opinion of the circuit judge.

CRELLIN and others v. Ely and another.

(Circuit Court, D. California. August 21, 1882.)


In 1856, J., H. & C., as tenants in common, owned certain real estate in Oakland, California. J., in that year, contracted to sell to one Henry A. Cobb his interest in one undivided third thereof, and executed a deed supposed to contain the whole thereof, but by mistake the land in controversy was omitted in the deed. Cobb went into possession and so continued until he sold to J. F. Cobb, in 1857, when a partition of the land was had, and in such partition the land in controversy was allotted to J. F. Cobb; and Crellin and others, deriving title through him, have been in possession ever since, and have erected valuable improvements on the land. J. executed in New York a conveyance in general terms of all of his property to Ely and others, who thereupon brought an action against Crellin and others to recover the land, with mages for its wrongful detention, and the rents and profits thereof; whereupon complainants filed a bill in equity to stay the proceedings at law. Held, that complainants were entitled to the aid of a court of equity to restrain the proceedings at law until they

could perfect their title to the property, upon filing proper bond. 2. SAME-PRACTICE-SUBSTITUTED SERVICE-NON-RESIDENT DEFENDANTS.

Where attorneys have instituted a suit at law for non-residents of the state where the suit is instituted, and a temporary injunction against such proceeding at law is allowed, a subpæna may be served upon such attorneys, and their clients will be bound thereby, although the attorneys have not beon retained, except as to the proceeding at law.

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Before FIELD, Justice, and SAWYER, C. J.

This is a suit in equity for relief against an action at law, comwenced by the defendants against the complainants, for the possession of certain lands in the city of Oakland, in this state. Upon an affidavit of one of the complainants that their defense to the action at law arises out of matters which are purely of equitable cognizance; that the plaintiffs therein are non-residents of the state, and absent from it; and that a subpæna issued in this suit could not be served upon them by reason of such absence,-an order was issued and served upon the attorneys in the action at law to show cause why the subpæna should not be served upon them in place of the plaintiffs. Upon its return, the attorneys reply, in substance, that they have only been retained to prosecute the action at law for the recovery of the lands, and do not consider themselves authorized to appear for their clients in any other proceedings.

The complaint in the action at law is in the usual form in such cases, alleging seizin of the premises and right of possession by the plaintiffs on a day designated, and the wrongful entry of the defendants thereon, and their withholding of the same. It places the dam. ages for such withholding at $100,000. It also asks judgment for the rents and profits of the land during the occupation of the defendants, alleging them to amount to $400,000. One of the plaintiffs is a citizen of New York; the other is a citizen of Michigan. Both of them, as stated above, are non-residents of this state, and absent from it. The defendants are either citizens of California or corporations created under its laws. They have appeared to the action and answered the complaint, denying the allegations of seizin and right of possession by the plaintiffs, and pleading, in bar of the action, the statute of limitations, and also title and seizin in themselves. But they assert that they cannot make their defense as to the seizin of the premises in themselves available, unless they obtain the relief prayed in their suit in equity; and that the statute of limitations will not bar a recovery, as the plaintiffs claim, under a patent issued within five years, upon a confirmation of a Mexican grant, which patent is deemed to create a new title as against parties not claiming under the same grant.

The complaint in this suit alleges in substance that in 1856 the premises for which the action at law is brought, with several other tracts of land, were owned by three parties, Edward Jones, John C. Hays, and John Caperton, being held by them as tenants in common; that during that year Jones contracted to sell his undivided interest for a valuable consideration to one Henry A. Cobb; that in pursuance of such contract of sale a conveyance, supposed at the time to embrace the premises in controversy, which constitute a block of land in the city of Oakland, was made to him, but by a mistake in the drafting of the deed the block, which in the contract of sale was designated by number 159, was omitted; that under the deed executed in the belief that it conformed to the contract and embraced the block, the purchaser, Henry A. Cobb, went into possession, and continued in possession with his co-tenants, Hays and Caperton, until some time in 1857, when he sold and conveyed his interest to one John Francis Cobb; that the latter went into possession under the conveyance, and afterwards made partition with his co-tenants, and in such partition the premises in controversy were allotted to him, and that he, or parties deriving title through him, including the complainants, have been in the possession thereof ever since, and have made lasting and valuable improvements thereon, claiming all the time to own the premises; that in the year 1859 the said Jones executed in the state of New York a conveyance, in general terms, of all his property to the plaintiffs in the action at law, and they claim

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