W:DERAti REPORTlJ:R,voI.48.
otber than ihatauthorized by the statutes ofthe United edy afforded by the statute of the state of Alabama, which the supreme courrof the United States has said can have no application in the federal courts. I do not think that there is any distinction between thtl case at bar and the case of Scott v. Neely, So far as the general principles governbig the two cases are- concernedjand my opinion, therefore, is that this case is controlled bv the in that. It follbwsfrom the views expressed that this co-urt cannot take jurisdiction of this suit, (as was said by Mr. Justice FIELD in Scott v; Neely,) "in which a claim properly cognizable only at law is united in the same pleadings with a claim for equitable,relief." The motion for judgment is denied, and the bill is Jismissed, but without prejudice to an action at law for the demand claimed, and it is SQ o r d e r e d . ' .
SWIEKARD 'V. SWIEltARD
et al.
,'Circuit Court, N. D. Iowa, W. D. December 9, 189L)
.' QUIBTINQ..?-'ITI.&-EVIDBNC:B:·. '
Prior to 1869, two brotners, A. and B., were speculating in Iowa lands, and A.. beoomiDg indebted to his father; who lived in Ohio, conve'yedone tract -to him; , The tatherpaid taxes on the treated it as his own untUhis death in 1884when he devised it to his daughter; A fewd,ays after his death there was recorded a quitclaittl deed from him and his wife to B., purporting to 'have been' made in 187Q; ,and shortly afterwards B. conveyed the land to a small fraction of valUe. Th.e daughter sued t'o quiet title, alleging that 'th,e quItclaim deed was a forgery. 'B. ,tostified that before 1869 A. had repaid the debt to his father, and that shortly thereafter he had bought the land from A., wllO lIenthim the deed by mail; a,lso 'that, A. thereafter disappeared, and, believed to dead;, deed was not produced, aud the mother, and the 5ustics before whom It puryo 1'ted to have been acknowledged" denied that they ever, 1l.1.g1)ed: ;S\lqh a deed. B. in indigent during all the time he'!,laimed to lpve owned the IlInd, but never occll-pied It,or attempted to sell or denve any revenue from after his father's ,death. II:eld, that the weight oithe evidence was in fay-orot.the daughter's right, and she was entitled to a title. r '"
"
,','
,-
In Equity. Bill by EmmaN. Swiekard against Ezra Swiekard; J; F. Kimblll1,and George F. Champ to quiet title to lands. _Decree for complainant.' l , ' McMiUan·'&; -Kendall, for complainant. B. W. Hight, for defendants. . "!
' j
SlIIRAs,J., The property involved in this litigati<m consists of 160 acres of land,situated in Monona county, Iowa. From the evidence it appears that MathiaS Swiekard, the father of complainant, died January 6, 1884', in the statE! of Ohio, where he had resided for many years. By the tel'fi):sof his will, executed February 13, 1882, he devised to complainant the land in controversy. On the 'lOth day of Jimuary, 1884, there was filed for record in Monona oounty a quitclabndeed of the land, bearing date September 2, 1870, and purporting to be signed by Mathias SWiekard and wife, the grantee therein being Ezra SWiekard;
, SWmKARD II: SWIEKARD.
257
a son of Mathias, and half-brother of complainant. On the 1st day of February, 1884, EzraSwiekard exectlted'll. deed of said premises to J. F. Kimball and George F. Champ, defendants herein, who purchased sa,id land, and paid therefor, without notice of the claim made thereto by complainant. Complainant avers that the deed purporting to convey the land to Ezra Swiekard is a forgery, and that Mathias Swiekard was, at the time of his death, seised in fee of said premises, and that by the terms of his will the title thereto vested in complainant. On behalf of defendants it is claimed that in fact Mathias Swiekard never was the owner in fee of said premises, although the legal title was vested in him; that this land, with other lands, was conveyed by Elias Swiekard, a son of Mathias, to his father; as security for indebtedness due the father; that this indebtedness was 'subsequently paid in full; that Ezra Swiekard bought outthe interest O£hisbrother Elias in lands owned by him in Iowa and other western states; and that the quitclaim deed of the :premlses in cbntroversywas made 'to Ezra Swiekard because he had become the owner thereof. From. this statement it will appear that the main point in dispute is as to the actual ownership of the land at the date of the death of Mathias Swiekard. If he then owned the land, the same passed by the terms of his will to complainant. If be did not .own it, it did not so pass.' The evidence shows that up to the date of his death Mathias Swiekard deemed the land to be his own property'': as, he paid' the taxes thereon, and, as already in his will he specifically devised the land to his daughter; the complainant. To overcoine the case made for complainant, reliance is mainly placed upon the testim,onyof Ezra SWiekard, the grantor of defendants Kimball and Champ. ,: The evidence shows that Elias and Ezra, sons 'of MathiasSwiekard, had years ago been engaged in specUlating in lands in Iowa, Missou'ri; and Nebraska. Elias had come indebted to his 'father' for moneys advanced, and for that and other reltsons certain lands in which he wasihterested were conveyed to the father. It is now claimed that the indebtedness from Elias to his father was fully discharged, and that in 1869, 'and the years following, Ezra bought the interest of his brother Elias in all his western lands,aild thus became the owner 'of the premises in controversy. Ezra testifl es' that his brother Elias has not been heard from for years, and is probably dead; that'in 1869, and the years following, he bought out Elias' interest in his western lands; that :]jlias futilished him deeds from time to time, leaving the descriptions therein blank; that the quitclaim deed purporting to be signed by Mathias Swiekltrd and wife of the lands in question he received by mail from Elias. There is not adduced in evidenoe any written evidence of the alleged sales from Elias to Ezra, nor is the testimony thereto clear and distinct. It may well be that trades were had between Ezra and Elias during the years named, but it is not made clear or probable thatthe land in controversy formed part thereof. The q.uitclaim deed under which defendantsclainds not produced, it being averred that it has been lost or mislaid. Mary Ann Swiekard, the widow·of Mathias,' and one of the alleged signers 'of said deed, testivA8F.noA-17
2/58
FEDERAL
vol. 48.
fi."tbat:she never e?CeQuted the same; "lad James Watt, .the justice before it purports: to have been acknowledged, testifies that he never took the acknowledgment of the same. There is no evidence tepQing to show how or when this deed, if gepuine, caple into the possessionofElias, fromw;hom Ezra. <;l.Aim.ed to have received it. Why a deed exec.uted to Ezra shoQld have sent to Elias bytlae fatherisleft unex. plained. While it is all argued, that much weight cannot be given to the testimony ofMa,ry Ann Swiekard .and James Watts, owing to the lapse of tilDe since the execution of the quitclaim deed, it being true that they might and acknowledged the same, and have since forgotten the fact,. yet it is equally true that their of the ecutipp thereof, the failure to produce the alleged deed, and the absence of satisfac:.tory evidence touching the delivery ofsaid instrument, and the failure to explain Why the same. remained U1!ll'ecorded for 14 years, suspipjon upon the validity thereof. $e the· court is compelled, to give weight to the acts of the respective parties as indications of the real ownership of the ,9n the one:hand; We fi0,9 :that from the year 1859 up to his death in 1884, Mathilts Swiekardpaid the taxes on this land; and in 1882, wh,JeQ.executing his will, he ,tttade a specific devise thereof to his daQghte.r" the compl¢napt hereini acts of Mathias .inregard to this show that· he/ls!leljiec;l. the ownership thereof, and that he clai/lled, and exercised,the right of disposing of the sa1))e as his own propert,y;; Ezra Swiekard te8tifies heis 54 years old, is a hiborer by and haa resided.iJil:QouncilBluffs for 33 years. He Q!tve become,tbeowner·()f the land in 1870, yet it does not he ever paid the taxes th!3reon, or that he ever occupied the land, or Wade anyelj'oftto sell the:same, until after his father's death in it be pO$sible that one, who was in straightened circumstances, should have allowed this land to have thus .remained without making some dispositionof it,w,t1;le,r by sale or renting it, for so long a period, knew he was the owner of it. ,During the father's life-time he.,remained wholly silent an<J jnactive, althoug1;l the claim now is that be,w8B the absolute of the land, having the deed thereto in his possession. Is it reaaonable that during tqese many years there sh9u!d:not have been some demand made by the father in regard to the paid by him, if the son held a deed to this land? 'rhe.theRry of the defense is the title to this land passed to Ezra Swiekard; in 1870, yet from that date until in 1884 he. did no. act eating anY91aim to.owlwrship.in the land, nor did he attempt to derive any 1?enefit or profit therefrom by occppying or leasing the same. On the 6th day ,ofJanuary , 1884, the father died I and on ih.e 10th day of the mqpthaquitclaim, pU,rporting .to be executed by Mathias apd MaryA,nn; 14 .years before,. was placed upon the record, and on 188,4,E;Zi18.Swiekarlideeded the Jand to J. Fe. l{imball.and George H. Chanl,p·. ;Ezra, testifies .that iJ) fact he reo the. and Champ that they paid him the latter to be infact paid, 'it follows that;Ezra
259 Swiekard sold the land for the sum of $1.80 per the tract being a quartersection. The defendahtsKimball and Chnmp testify that the land was worth at the. of the s,ale five dqllars. per. acrEl' If Ezra Swiekard was in fact the owner dfthis land; 'having a deed thereto in his possession, and, hahad Qwnedit since 1870, why sell it at such a sacrifice? If he was keeping it to realize the profit from its enhanced value, Wllysell it for one-third its value? Ifhe was keeping it as to, his old age, why sell it for a mere fraction of its value? . He lived in Council Bluffs, and it would, have Qeen an easy matter for him to have offered it for sale through parties living in Monona county, and thus have realized its fair value. Had this been dOlle, however, it might have led to inquiries as to the actual ownership, growing out of the factthat Mathias Swiekard had appeared to be the owner, and had paid the taxes thereon. His acts, including the price he received, are inconsistent with the theory that he was the 'owner of the land, with an able title. They are consistent with the theory that he knew he was not the owner thereof, and was therefore willing to take anything he could get without subjecting his title to apecial scrutiny. Leaving out of consideration the quitclaim deed relied upon by defendants, the weight of the evidence is in support of the theory that Mathias Swiekard, at the time of his death, was the owner of the land in dispute. If Ezra Swiekard had ass·erted his ownership of the land and was now seeking a decree to establish his title thereto, without aid from' the quitclaim, it is entirely clear that he could not recover upon the evidence adduced in this case. Therefore, in the present cause, it must I:>e held that the evidence shows that MathiaS' Swiekard was the owner of the land, and the burden is upon the defendants of showing the execution and delivery of a valid deed by him. Reliance is placeil upmi the aJleged quitclaim deed, said to have been executed in 1870, and withheld from the record until after the death of Mathias Swiekard in 1884. The original of this instrument is not produced in evidence, and no very satisfactory account of itS whereabouts or loss is given. Ezra Swiekard testifies that the last time be saw it it was in the office of Kimball and Champ. The latter deny all. knowledge of it. As already stated, the acts of Mathias Swiekard in his life-time are inconsistent with the execution and delivery of'thifl alleged deed. Mary Ann Swiekard denies the execution thereof, as does also the justice before whom it purportS to have been acknowledged. Ifthe original deed had been introduced in evidence, it would have been a valuable aid in arriving at the truth; but it was not produced, and ite absence, accidental though it may be, weighs against the defendants, in whose hands it would naturally be. It must therefore be held that the evidence fails to show with sufficient clearness the execution and delivery of the quitclaim deed relied upon by defendants, while it does reasonably-show that at the date of the death of Mathias Swiekard he was the owner of the premises in dispute, and that the same passed by his will to the complainant herein, Who is therefore entitled toa decree quieting the title in her as prayed for.
260
J'ELERAL REPORTER,
vol. 48. et al·
HARMON
et al. ,,'.
STRUTHERS
. (cCrouit
Oourt. W. D.
November 20, 1891.)
PATENTS lI'OB INvlnfTIONs;...INFRINGEMENT;;";'RES JUDIOATA-EFFEOT dF INTlIlRLOCUTORT DEOREB.
In a snit for infringement of letters patent there was a decree for plaintiffs, awarding an injunction, and for an account, and a reference to a master. The defendants quit u8.ing the .device so..heldto ,infringe, substituting a dUferent device, which ;was openly use,d by other and as to which there had been no adjudication. Then, pendtn'g' 'the reference before the master, the .plaintiffs bl'ought a :. new 8uit in the same against1ihe /!lame defendants. The, answer therein not only denied infringemel1t, but alleged. that one G., and not the patentee, was the original and fir8t inventor of the patented device, "'hicn defense was not 8et up in 1ihe·frst 8uit. BeW, that the de'cree was interlocutlJr.y, and did not, in the second 811it, preclude inquiry into the validity of the patent. .' " ; ... , . I ,
In Equity. Suit for infringement of patent. Heard upon exceptionsto' answer. Excoptiens overruled. ., W. Bakewell Sons, for exceptions. D. F. Patterson and James O. Boyce, for J. This bill, which is for the infringement of letters patent for an invention, the usual recitals and averments, recites a previoue s,uit in equity by the plaintiffs against the defendants, in this court, for. the infringement of the same patent, in which, there was a decree, in the' qrdinary form, in favor of the Vlaintiffs, aWlJ,rding an injunction, and foran,1\9pount, and a rlilference to a master to take the account. 43 answer to the present bill,the defendants state Fed. Rep.A37 · upon the decision of the court, they abandoned the.useof the device held to, il,lfringe patent, and that they are now using a different device,whicQ they par,HClillj.!ly ,describe, and whicn they deny is an inalleges· that the Plltented improvement fringement. The was nQtthe invention qf,tht1patentee, but, in, fapt,.was invented by George,H."GiJrlbs, whq put the ilevice in public use by sales more than two years the dale. ofthe application for the on. , The plaintiffs Gontend that are the proceedings in, the formeullit from questioning the validity of the letters patent, and they narrow the. to the single questiqn. whether the device the defendants;infringes the patent. now h:ere to be noted: , First,the other case is still pending .p1aster \lnder order of reference; secqnd, the defense that before orill;inaland first inventorof the patented device waslil,qt set llP Or considered in the fornwr suit. It is to be added to us that the particular device involved in tha,t it tbl;lpreSetlt emit ,isopeJ;llYi used by other manufac:turers besides the de, fendantEi;,a,nd has b.,eenn() adjudication affecting the right of the publi(} torrnse;the saJ;ne, por has the question raised until now. here shut up to the single issue of infringeAre the qefen:da,nts, ment? It cannot be, maintained that the present iaa continuation of the earliersuit. It 'is an independent l:iuit in form 'and substance. Nor