Wehrman v. Conklin
[Syllabus from pages 314-315 intentionally omitted]
This was a bill in equity brought by the appellees, Conklin and wife, to enjoin the appellant, Wehrman, from prosecuting an action of ejectment in the court below, against the appellees, to recover possession of the lands in controversy.
The bill, which was filed by T. B. Conklin and E. F. Conklin, whose Christian names are not given, but who appear from subsequent allegations to be husband and wife, set forth that they were the 'absolute owners' of the property, which had been purchased of the United States on June 9, 1857, by one Adolph Wehrman, who received a patent therefor on December 1, 1859. Afterwards, and on December 17, 1859, Adolph Wehrman and wife conveyed the land in controversy, with other lands,-about 2,060 acres in all,-by deed of warranty, to the defendant, Frederick Wehrman, for an expressed consideration of $3,000. This deed was recorded in the proper office for the county of Woodbury, to which the county of O'Brien, wherein the lands were situated, was then attached for judicial purposes.
The bill further alleged that on January 14, 1861, a copartnership known as Greeley, Gale & Co. began an action at law, aided by an attachment in the district court of O'Brien county, upon a judgment rendered by the circuit court of Pierce county, in the state of Wisconsin, against Adolph Wehrman, which judgment was based upon notes given prior to the date of the conveyance of siad lands to the defendant by Adolph Wehrman. Such judgment was rendered after personal service upon Adolph Wehrman in the state of Wisconsin. A writ of attachment was issued by the clerk of the district court of O'Brien county, and levied upon the lands in question, and notice personally served upon the defendant in the state of Wisconsin, although no service of summons or notice appears to have the writ of attachment was issued, there was county, and levied upon the lands in question, no time fixed by law for holding the term of the district court in O'Brien county, though subsequently the judge appointed a term to be held on the 3d day of June, 1861, to which day the writ of attachment was actually made returnable. The venue of the cause having been changed to the county of Woodbury, on September 17, 1861, a judgment was rendered by the district court of that county against the defendant Wehrman for $1,809.40 damages and costs, and the lands 'described in the writ of attachment' were ordered to be sold in satisfication thereof. A certified copy of this judgment was filed in the district court of O'Brien county.
Afterwards, and prior to the June term of 1862, Greeley, Gale & Co. commenced a suit in equity in the district court of O'Brien county against Adolph Wehrman and wife and Frederick Wehrman, for the purpose of setting aside and canceling the deed from Adolph Wehrman and wife to Frederick Wehrman, as fraudulent and void against the creditors of the former, and subjecting the lands described in this deed to the payment and satisfaction of their judgment against Wehrman. The plaintiffs averred: That they were unable to set out the proceedings in such suit, for the reason that they had become lost and destroyed, but that there was personal service upon the defendants in the state of Wisconsin; that subsequently, and at the June term of 1862, a decree was rendered by default, declaring the deed to be fraudulent and void, and ordering the lands to be sold in satisfaction of the judgment rendered by the district court of Woodbury county, and the proceeds to be applied to the payment of such judgment; that an execution was subsequently, and on June 16, 1862, issued from the district court of Woodbury county, directed to the sheriff or O'Brien county, by virtue of which the sheriff levied upon the lands described in the writ of attachment, and sold the same on July 31, 1862, to Carlos S. Greeley, one of the members of the firm of Greeley, Gale & Co., who thereupon acknowledged satisfaction of the judgment; and that on December 31, 1864, the land not being redeemed, the sheriff executed to Greeley a sheriff's deed, which was filed, whereby Carlos S. Greeley became the absolute owner of the land.
That he subsequently acquired a tax title to such lands for the taxes of 1858 and 1859, and that said lands, by conveyances from Greeley in 1881, 1882, and 1884, became the property of Conklin, who took immediate possession, and has since been in full, open, notorious, and adverse possession of the same. That the plaintiffs and their grantors paid all the taxes upon such lands for 30 years, and have made valuable improvements by putting some 600 acres under cultivation, by the erection of substantial buildings and fences, digging wells, and otherwise improving the premises. That such improvements have been made at an expense of $1,000, and in full reliance upon their title being good and valid. That in the meantime defendant has never asserted any right or title to the premises, or notified plaintiffs of his interest in the same. That Wehrman never asserted any claim to the premises until the land became valuable by reason of the plaintiffs' expenditures; has never paid any taxes upon the property, and, though having actual knowledge of the proceedings taken by Greeley, Gale & Co. to subject the land to the payment of their judgment, for more than 27 years took no steps to have the records corrected, or asserted any claim, or notified purchasers of such claim, until his action at law was commenced.
The bill further averred the conveyance by Adolph Wehrman to be a cloud upon their title, and, being in actual possession and occupancy of the land, they prayed that the action in ejectment be stayed until the determination as to their rights to the land, and that Wehrman be enjoined from further proceedings at law.
Defendant interposed a demurrer to the bill for the want of jurisdiction and of equity, which was overruled; and he thereupon answered, setting up certain defects in the proceedings under which Greeley, Gale & Co. sold the land upon execution, and by virtue of which proceedings plaintiffs claimed to have acquired a title, viz.: (1) That the writ of attachment was not attested by the seal of the court in which the action was brought; (2) that no service of summons or notice was had upon the defendant Adolph Wehrman in the state of Iowa; (3) that such notice as was given described the action as having been brought upon a judgment rendered May 12, 1860, when in fact the judgment was rendered September 12, 1860, and judgment was taken upon the attachment proceedings upon a judgment so rendered September 12, 1860; (4) that the writ of attachment was made returnable at a term commencing on June 3, 1861, when in fact the commencement of that term was not fixed until more than a month after the writ was issued; (5) that a change of venue was ordered from O'Brien county to Woodbury county, and the papers sent there without having been in any manner certified or verified by the seal of the court in which the suit was brought; (6) that the judgment was in personam, and ordered the property 'described in the writ of attachment' to be sold to satisfy the same, when in fact no property was described in the writ, but only in the return of the officer indorsed thereon; (7) that in the subsequent equity suit to subject the lands to the payment of this judgment there was no personal service or notice of process upon the appellant, Frederick Wehrman, in the state of Wisconsin; (8) that the tax deed was defective, inasmuch as the taxes on the lands for 1858 and 1859 were payable by law to the treasurer of Woodbury county, whereas the tax deed shows that the treasurer of O'Brien county attempted to sell the lands for taxes and give a tax deed.
The case was argued upon pleadings and proofs, and the court made a final decree in which the adverse claims of the defendant, Wehrman, were adjudged to be invalid and groundless, the complainants decreed to be the true and lawful owners of the land, and their title to be quieted against the claims of the defendant, who was perpetually enjoined from setting up the same; and, further, that defendant be enjoined from further proceedings at law.
From this decree defendant appealed to this court. The opinion of the court upon demurrer is found in 38 Fed. 874, and upon final hearing in 43 Fed. 12.
Chas. A. Clark, for appellant.
[Argument of Counsel from pages 319-321 intentionally omitted]
E. C. Herrick, for appellees.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.
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