Thompson v. Maxwell, 95 U.S. 391
Case details
Citation
95 U.S. 391
Full caption
Thompson v. Maxwell.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Thomp son v . Maxwe ll .
1. None but parties and privies can have a bill of review; and it will not lie
where the decree in question was passed by consent. 2. A decree for carrying out a settlement and compromise of a suit, if obtained
without fraud, cannot be impeached. 3. Buffington v. Harvey, supra, p. 99, cited and approved. 4. As the bill in this case, before it was by amendment converted into a bill of
review, approximated to the character of a bill to carry the original decree more effectually into execution, which was the appropriate remedy of the complainants, the court, while reversing the decree, does not direct that the bill be absolutely dismissed, but that the complainants be allowed to amend it, with leave to defendants to answer any new matter therein introduced, and that the proofs taken in the cause shall stand as proofs at any future hearing thereof, with liberty to either party to take additional proof upon any new matter that may be put in issue by the amended pleadings.
Appea l from the Supreme Court of the Territory of New Mexico.
The facts are stated in the opinion of the court.
Mr. Matt. H. Carpenter and Mr. Joseph B. Stewart for the appellants.
Mr. W. W. MacFarlane^ contra.
Mr . Jus tic e Bradley delivered the opinion of the court.
In 1859, Alfred Bent and his two sisters, Estefana and Teresina, with their husbands, filed a bill in chancery in the District Court of the Territory of New Mexico for the County of Taos, against Charles Beaubien, Guadalupe Miranda, Lucien B. Maxwell, and José Pley, claiming and alleging that Charles ent, deceased, the father of Alfred and his sisters, at the time of his death, was jointly interested with said Beaubien and Miranda, to the extent of one-third part, in a certain specie tract of land in said territory, amounting to two millions o acres, which had been granted to said Beaubien and Miranda y t e New Mexican government in 1841, and stood in their
5 an<^ aS sa^ third part they were trustees for harles up to the time of his death, and from thenceforar trustees for the said Alfred and his sisters as heirs-at-law Pie801 ^^ar^es‘ The bill further stated that Maxwell and y pretended to have become interested in said land ; and p. 392prayed as against all the defendants that the title of said Charles Bent to the third part thereof might be established, and for a partition. Such proceedings were had in that suit» that, on the 29th of May, 1865, a decree was made, establishing Bent’s title to one undivided fourth part of the land, the right of succession of the complainants, and adjudging that a partition be made according to the prayer of the bill. Commissioners for making partition were appointed by the decree, and ordered to report at the next term, the court reserving its decree as to the partition and the costs of the cause.
After this decree was made, certain negotiations took place between Maxwell (who had acquired the principal interest in the property) and the complainants, looking to a settlement of the controversy, and a purchase by Maxwell of the complainants’ interest. Whether these negotiations were concluded in Alfred Bent’s lifetime, or not until after his death, subsequently became a matter of controversy between the parties. He was accidentally killed on the 15th of December, 1865, leaving a widow, Guadalupe Bent (who afterwards married George W. Thompson), and three infant children, Charles, Julian, and Alberto, his heirs-at-law.
The commissioners for making partition never reported; and the next proceeding in the cause, so far as appears by the record, was an order made in April, 1866, making the infant children and heirs of Alfred parties complainant, and continuing the cause. A few days afterwards, in the same term, the following order was entered in the cause: —
“ By agreement of the parties, the continuance of this cause, made on a former day of this term of this court, is set aside; and, on motion of solicitors for the complainants, Guadalupe Bent is here y appointed guardian ad litem and commissioner in chancery tor minors of Alfred Bent in this cause, with full power to execute deeds or carry into execution all sales or transfers made of her [their ?] interests in and to the real estate therein describe to Lucien B. Maxwell, one of the defendants in said cause, and tba this cause stand continued until the next term of this court.
On the third day of May, 1866, Guadalupe Bent, as guar dian ad litem of Charles, Julian, and Alberto, and commissioner under the foregoing order, executed a deed of conveyanc p. 393Oct. 1877.] Thomp son v . Max wel l . 893
fee to the said Maxwell for the one undivided twelfth part of the property in question, belonging to the said Charles, Julian, and Alberto, as heirs of their father. The sisters of Alfred, with their husbands, executed deeds for their interest in the lands about the same time.
In September Term, 1866, another decree (probably intended as a substitute for the order made in April) was made in the said cause, in the words following, to wit: —
“ Whereas an interlocutory decree was rendered at a former term of this court in the above cause, decreeing one-fourth of the land mentioned in the petition herein to the complainants in this cause, and appointing commissioners to divide and set apart the portion so decreed; and whereas said interlocutory decree was never earned into effect; and whereas, since the time of the rendition of said decree, a mutual agreement has been made between the parties to this cause, settling and determining all the equities in the same:
“ It is, therefore, hereby ordered, adjudged, and decreed,, by the mutual consent and agreement of the said complainants as well as of the said defendants in this cause, that the interlocutory decree above mentioned, together with all orders made under and by virtue of the same, be set aside; and, by the mutual consent and agreement of the said parties, it is hereby further ordered, adjudged, and deci eed that the said Lucien B. Maxwell, one of the defendants in this cause, pay to the said complainants the sum of $18,000, to be divided among them per stirpes; that is, to the said Aloys Scheurick and Teresina Bent, his wife, one-third part, and to Alexander icklin and Estefana Bent, his wife, another’ third part, and to arles Bent, Julian Bent, and Alberto Silas Bent, the children and heiis of Alfred Bent, deceased, the remaining third part, to be equally divided among the said last named, and to be paid into the hands of Guadalupe Bent, widow of the [said] Alfred Bent, deceased, and guardian ad litem for said children, for the purposes the said division. And, upon the further consent and agreement of the said parhereby further ordered, adjudged, and decreed that the S h ,exander Hicklin and Estefana Bent, his wife, the said Aloys euuc and Teresina Bent, his wife, and the said Guadalupe Sila * ^uaid^an litem for Charles Bent, Julian Bent, and Alberto dece children and minor heirs of the said Alfred Bent, cute^d ^en days from the date of this decree, make, exe-
’ an eliver to the said Lucien B. Maxwell good and sufficient p. 394894 Tho mps on v . Maxwe ll . [Sup. Ct.
deeds of conveyance of all their right, title, interest, estate, claim, and demand of, in, and to the lands in controversy in this cause, the said Guadalupe Bent, guardian ad litem as aforesaid, in the name of Charles Bent, Julian Bent, and Alberto Silas Bent, minor heirs as aforesaid, and the said Alexander Hicklin and Estefana Bent, his wife, and the said Aloys Scheurick and Teresina Bent, his wife, in their own names. And, by further consent and agreement between the said parties, it is hereby further ordered, adjudged, and decreed that the costs of this suit shall be paid, each of the said parties to pay the separate costs in the same made by themselves.
This last decree seems to have been the termination of proceedings in the cause. No further conveyances were executed, and nothing else was done to carry the decree into effect.
On the first day of August, 1870, nearly four years after the entry of the last decree, the proceedings were instituted which are now brought here on this appeal. On that day, the present appellees, The Maxwell Land-Grant and Railway Company (to whom by mesne conveyances a large portion of the land had, in the mean time, been assigned), together with Lucien B. Maxwell and his wife, filed in the same court a bill against Guadalupe Thompson, administratrix of Alfred Bent s estate, her husband, George Thompson, and the said infant children and heirs of Alfred Bent, in which bill, after setting forth the grant to Beaubien and Miranda, and the derivative title of the complainants in the land, and the substance of the proceedings which had taken place in the previous suit, the complainants proceeded to state at large the terms of the compromise agreement which had been made, and which had resulted in the final decree made in that suit. They alleged that this com promise was agreed upon in the lifetime of Alfred Bent, tnoug not carried out until after his death, and that its terms were that Lucien B. Maxwell should pay to the complainants in tie original suit $18,000, or $6,000 apiece ; and that, in considera tion thereof, Alfred Bent and his two sisters should release an^ discharge the premises and every part thereof; and the sai Maxwell and wife, from the said trust or equitable claim, an^ in confirmation thereof, should convey to Maxwell al right, title, and interest in and to the premises. T e further alleged that the said $18,000 was duly paid (the p. 395of $6,000 due to Alfred being paid to his wife as administratrix of her husband’s estate, and not as guardian of his children) ; and that the sisters of Alfred, with their husbands, executed conveyances in accordance with the compromise agreement, in May, 1866, and that Guadalupe Bent, by a deed of conveyance executed by her as guardian aforesaid, undertook to convey the interest of the children as before stated; and that by said compromise and conveyances the said trust became extinguished, and the title of Maxwell became freed and discharged therefrom. The bill then set forth certain errors, which it was alleged had been committed in the original proceedings, and which cast a cloud upon the title of the complainants, namely: First, that it did not appear therein (as the fact was) that an agreement for the sale of the equitable interest of Alfred Bent was made by him, in his lifetime, with said Maxwell; secondly, that the interlocutory decree (of May, 1865) should not have been set aside, but should have been modified; thirdly, that the money paid by Maxwell for the interest of Alfred Bent should have been directed to be paid to his personal representative, and not to the guardian ad litem of his children; and, fourthly, that, upon such payment being made, the court should have decreed and adjudged the said trust and equitable claim or interest to be extinguished, and that the premises should be held free and discharged of said trust. The bill then prayed for a decree that the trust , e terminated and extinguished; that the defendants have no interest or title in the premises, equitable or otherwise; that t o plaintiffs hold them free and discharged of all trusts in avor of the defendants and all claiming under them ; and for °t er and further relief. This bill being demurred to, the complainants were allowed to amend it by adding a prayer in c following words: “ That for the aforesaid errors of law, 1866* °n ^ace the sa^ decree of 10th September,
5 the same may be reviewed and reversed in the points nerem complained of.” bein man^est ^at the object of this bill, especially after ng amended, was to set aside the decree made in the original niore ’ suhsthute therefor a new decree supposed to be e a vantageous to the complainants, upon the same matters p. 396which were before the court and under its consideration in the said cause. Under the guise of a bill for quieting title it was in reality a bill of review.
The defendants, after the appointment of a guardian ad litem for the infants, answered the bill. Guadalupe Thompson and her husband denied that an agreement for a compromise was ever made by Alfred Bent in his lifetime; but they substantially admitted the other facts stated in the bill; alleging, however, that Guadalupe, although she executed the deed of May, 1866, in good faith, was wholly ignorant of the rights of her children. The guardian ad litem for the infants simply referred their rights to the court.
Upon these pleadings the parties took proofs; and, without going into the details thereof, it is sufficient to say, that, in our judgment, the complainants entirely failed to substantiate the main fact relied upon by them, namely; that the agreement for a compromise was concluded with Alfred Bent in his lifetime. The effect of the evidence appears to be, that, although negotiations were commenced before his death, no agreement was concluded until after that event, when it was concluded by his brother-in-law, Scheurick, and was acquiesced in by the other parties, including the widow of Alfred, acting in behalf of her children.
Upon the case as thus made, the court, in September Term, 1873, made a decree to the following effect; namely,
First., That the decree of Sept. 10, 1866, was erroneous, and should be reversed, in so far as it set aside the provisions of t e interlocutory decree of May 29, 1865, determining Charles Bent’s interest in the land, and the right of his children to sue ceed thereto, and directing Guadalupe Bent, the widow o Alfred, as guardian ad litem for his minor children, to make a deed of conveyance of all their right, title, and interest in t e said land. , Secondly) The court found and declared, that, after the deat of Alfred Bent, and pending the original suit, an agreemen by way7 of compromise was made by the adult parties er , for settlement of the same, and that the terms thereof wen considered advantageous to the infants, and were accepte the court on their behalf, as evinced by the decree attemp i S p. 397to carry it out; also, that Maxwell had paid the money stipulated for in the compromise, and that the infants’ share had been received by their mother for their benefit, whereby their right to the land became extinguished, and the land became discharged from the trust: therefore, it was decreed that the Maxwell Land-Grant and Railway Company held the land free and discharged of said trust.
The defendants appealed from this decree to the Supreme Court of the Territory, where it was affirmed ; and from thence it was appealed to this court, and the question before us is as to the validity of these proceedings in the last suit.
If the bill is to be regarded as a bill of review (and in its ultimate aspect, at least, it seems impossible to regard it otherwise), the proceedings are clearly objectionable, on the following grounds: —
First, The decree sought to be set aside and reversed was a consent decree. It is a general rule that against such a decree a bill of review will not lie. Webb v. Webb, 3 Swanst. 658; 2 Smith Ch. Pr. 50; 2 Dan. Ch. Pr. 1629 (3d Am. ed.).
Secondly, The bill is filed by and on behalf of an assignee of the original defendant, namely, The Maxwell Land-Grant and Railway Company; whilst another rule, relating to bills of review, is, that none but parties and privies can have a bill of review. It does not lie for assignees. Gilbert, For. Rom. 186 ; 2 Smith Ch. Pr. 49; 2 Dan. Ch. Pr. 1627. The fact that ucien B. Maxwell and his wife are joined as complainants does not obviate the difficulty.
Thirdly, The bill seeks a reversal and modification of the ecree upon an alleged matter of fact not appearing upon the
5 namely, that the compromise agreement was made with red Bent in his lifetime, without alleging any newly discovered evidence unknown to the parties before the decree.
e decided, in the case of Buffington v. Harvey, supra, p. 99 . was well settled before), that the only questions open a ill of review (except when filed on the ground of newly iscovered evidence) are such as arise upon the face of the . cor , without reference to the evidence in the cause. Whit-
Wall. 60.
The case, it is true, is somewhat anomalous. The decree sought to be set aside by the bill of review was not made in pursuance of the relief sought by the bill in the original cause, and was not based upon the pleadings and evidence therein. It was a decree for confirming and carrying out a settlement of the controversy, which had produced a change of interest. The original suit was instituted by the heirs of Charles Bent, to establish an equitable interest in an undivided share of the lands, and for a partition thereof. A decree was made establishing the right, ordering the partition, and appointing commissioners to make it. This was as far as the suit progressed. It was then settled, and the decree in question was entered by consent, setting aside the decree for partition, and carrying out the settlement. The bill of review alleges the fact to have been that the settlement was made by Alfred Bent in his lifetime, and that the decree ought not to have set aside the former decree establishing his rights, and ought not to have directed the guardian of his infant heirs to execute a conveyance; but ought to have declared the land discharged from the trust, upon payment by Maxwell of the agreed consideration to Alfred s personal representatives. In other words, the bill of review insists that the decree was misconceived and erroneous, in view of the state of facts out of which it grew, and which did not appear in the record of the cause.
We do not think that the peculiarity of the case, however, takes it out of the ordinary rules that apply to a bill of review. A decree for carrying out a settlement and compromise of a suit is certainly not, of itself, erroneous. When made by con sent, it is presumed to be made in view of the existing facts, and that these were in the knowledge of the parties. In t e absence of fraud in obtaining it, such a decree cannot be im peached.
We have looked into the laws of New Mexico, to see whet there is any thing peculiar in the modes of proceeding t er which would sustain the bill in its present form; but we a failed to find any thing of the kind. In civil cases, t o^ laws adopt the civil-law mode of practice, subject to the reg^ lation of the Supreme Court of the Territory. Compile a ’ pp. 195, 196. That court has made separate regulations p. 399common-law and equity practice. The rules in relation to the latter are not materially different from those adopted by this court for equity cases in the circuit courts. The civil procedure as pursued in the Spanish courts has no proceeding analogous to a bill of review, except the allegation of nullity, which must be made within sixty days from the time of pronouncing the decree; after which period, if no appeal be taken, the sentence or decree becomes res adjudicate and cannot be revoked unless obtained by means of false or forged proofs. 1 White’s Recopilación, 305, 306, from Aso & Manuel’s Institutes, lib. 3, tit. 8, c. 1; Escriche’s Dicción, tit. Sentencia Nula.
Tested, therefore, by any law of procedure which may be invoked in its support, the bill in this case, considered as a bill of review, seeking to reverse, modify, and reconstruct the decree of September, 1866, cannot be sustained. Nevertheless, the general purpose which it evidently had in view — the quieting of the title to the land in question — is one towards which a court of equity is always liberally disposed, as tending to promote the peace of society and the security of property. And if, instead of seeking to reverse the decree of September, 1866 (which, for like reasons of public policy, as applicable to the security of judgments that have passed into rem adjudicatam, is not allowable), the bill had sought to carry that decree more effectually into execution, it would have been free from legal objections, and equally conducive to the object in view. Bills for the purpose named are well known in equity proceedings. •Lord Redesdale says: —
Sometimes, from the neglect of parties, or some other cause, it
ecomes impossible to carry a decree into execution without the er decree of the court. This happens, generally, in cases where unT68, aV^n^ neg^ected to proceed upon the decree, their rights th become 80 embarrassed by a variety of subsequent events
cert 18 necessary have the decree of the court to settle and aswas^H ®0Ine^mes su°h a bill is exhibited by a person who or ia t0 original decree, but claims a similar interest, deCr U1*a 6 °^ta^n ^he determination of his own right till the a e 18 c^rymd into execution. Or it may be brought by or against on c aiming as assignee of a party to the decree. The court p. 400in these cases in general only enforces, and does not vary, the decree; but on circumstances it has sometimes considered the directions, and varied them in case of mistake; and it has even on circumstances refused to enforce the decree; though in other cases the court, and the House of Lords upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution.” Redesdale’s Treatise, 95, 96.
It seems to us that the remedy here described by such high authority is* applicable to the case at bar. The decree of September, 1866, has never been carried into effect by any act done since it was made. It directed that Maxwell should pay the money stipulated for by the compromise, and that the defendant should execute deeds of conveyance. But the parties seem to have assumed that their previous acts performed in May, 1866, were a sufficient compliance with the directions of the decree. Yet the decree does not take notice of this fact.
Now, in order to execute this decree, or to determine whether . it has or has not been substantially executed, and to determine and declare the effect of such execution upon the rights of all concerned, and thus remove any cloud from the title arising from the imperfection of the proceedings, it was perfectly competent for the parties to file a bill conceived and constructed to that end. The bill in this case, as originally filed, before it was converted by amendment into a bill of review, and abating the allegations of error in the original decree, approximated to the character of such a bill as might have been sustained. The proofs show a case which, in our judgment, supports the conclusions of the decree, to the effect that the terms of compromise made by the adult parties to the suit (including the mother and guardian of the infant heirs of Alfred Bent) were advanta geous to the said infants, and were so considered and accep e by the court in their behalf. But, so far as the present decree undertook to reverse and modify the decree of September, > we think it is clearly erroneous. Still, although we feel to reverse the present decree, we do not think that the i should be absolutely dismissed. And, as the whole question between the parties has been fully litigated on the proo s, i would be unreasonable to require that these should be ta over again.
Our conclusion is, that the present decree must be reversed with costs, and that the cause be remanded to the court below, with directions to allow the complainants to amend their bill as they shall be advised, and with liberty to the defendants to answer any new matter introduced therein; and that all the proofs in the cause shall stand as proofs upon any future hearing thereof, with liberty to either party to take additional proofs upon any new matter that may be put in issue by the amended pleadings; and it is So ordered.
Beiges v . Speeey .
1
Where the record shows that a suit brought in a State court was, on the petition of the defendant, and by reason of the character of the parties, duly removed to the proper Circuit Court of the United States, the jurisdiction of the latter court is not lost for want of an averment of citizenship in the bill of complaint originally filed, or in the amendments thereto, which were made in the Circuit Court.
2
The bill in this case prayed for a dissolution of the partnership between the parties, and a sale of certain lands by them held as tenants in common, which, it was alleged, were not susceptible of division without prejudice to them. There was no demurrer to the bill, nor did the answer raise any objection to the jurisdiction. Held, 1. That, as the allegations of the bill touching the lands conform to the provision of the Code of California, and are sustained by the proofs, the decree below awarding partition was proper. 2. That, if there is any thing in the allegations which concern the partnership, which introduces another matter, the objection should have been taken by demurrer for multifariousness. Appe al from the Circuit Court of the United States for the District of California. This action was commenced by the complainant, who is a ^izen of California, in the District Court of the Fifth Judicial ^lstrict for the county of San Joaquin in that State ; but, upon petition of the defendants, who are citizens of France, the fo ThW^,rei^ove^ to toe Circuit Court of the United States . e istrict of California. After such removal, the comtoout11? an amen(tod bill, wherein he charged that, Dersh’ f 1874, he and the defendants entered into a copartthe CM °r Cari^ng on a hotel business on the land known as averas Big Trees, which consisted of two tracts, one vol . v.
containing about eight hundred, and the other about seven hundred and twenty acres; that the hotel was on one of the tracts; that at the time of the formation of the partnership, and during its continuance, he and the defendants owned the land as tenants in common, he having one undivided half, one of the defendants three-eighths, and the other one-eighth thereof; that it was agreed to use, as capital stock in said business, said land, hotel, &c.; that he was to have the sole and exclusive management of the business; that he performed his agreement, but that the defendants so conducted themselves in and about the management of the business as to cause great loss to him, and lessen the value of said land and hotel. He further alleged that the situation of the land and its connection with the hotel were such that it could not be divided without great prejudice to the owners.
The bill did not allege that the partnership was for any specified time, or that there were debts, profits, or claims to adjust or accounts to settle. It prayed for the appointment of a receiver, the dissolution of the partnership, the winding-up of its affairs, and a sale of the property.
The answer admitted the partnership, and the ownership of the land as charged, but denied that the complainant was to have exclusive management of the business ; and that he performed his agreement. It also denied that they in any way misconducted themselves, and that the land could not be divided without prejudice.
The land in question is that upon which grow the mammoth trees of California. It consists of two different tracts, about six miles apart. One, called the “ Calaveras Big Tree Grove, is also known as the “ Mammoth Grove,” and the other as the “South Park Grove.” The hotel is on the former tract; and the neighborhood is resorted to for the purpose of seeing t e trees, and enjoying the climate and the hunting and fishing«
The evidence chiefly related to the situation and character of the property and the purposes for which it could be used, an to the question as to whether the place would support wo hotels.
Upon the hearing, the court decreed the dissolution of t e partnership, the sale of the property, and the division p. 403the proceeds between the parties, in proportion to their respective interests.
The defendants thereupon appealed to this court, and assign for error, —
1. That the bill shows no equity, and should be dismissed.
2. That the sale of the real property should not have been ordered, because it was not partnership property, and, as there were no debts to pay or claims to adjust, no useful purpose could be subserved by a sale.
3. That the amended bill filed in the Circuit Court did not show jurisdiction in that court.
Mr. Edward J. Pringle and Mr. Edmond L. Groold for the appellants.
Mr. Milton Andros, contra.
Mr . Jus tic e Mill er delivered the opinion of the court.
The appellee, Sperry, brought suit in the State court for the county of San Joaquin against the appellants, who duly appeared and caused the suit to be removed into the Circuit Court of the United States for the District of California. In that court Sperry filed an amended or new complaint.
One of the errors alleged as grounds for reversing the decree in favor of Sperry is, that this amended bill shows no jurisdiction in the Circuit Court. If nothing else be looked at but the bill, there is no jurisdiction shown. But the proceedings in t le State court, which are properly here as part of the record of the case, show that it was removed from the State court to
the Federal court, on account of the citizenship of the parties; and this of itself must have given jurisdiction to the United tates Court before the amended bill was filed. That jurisdicion is not lost, because the facts on which it arose are not set out in the old or the new complaint. Railway Company v.
The appellants treat the bill as one for a dissolution of a partnership, a settlement of the partnership affairs,;a sale of partnership property, and a distribution of its proceeds. g ey, therefore, insist that the decree of the court ordering a ^6 of real estate of the estimated value of ^40,000, which parties held as tenants in common, and which, they insist, p. 404was not partnership property, was erroneous, and should be reversed. On the other side, it is said that the real estate was partnership property, and by the rules of chancery practice ought to be sold on a decree for the dissolution of the partnership, and the proceeds divided, as in case of personalty; and it is argued further, that, if they are mistaken in this view of the matter, the complaint may be treated as a bill for partition; and that as a partition in specie could not be made without loss or injury to the value of the property, it was rightfully decreed to be sold and the money divided.
As we are clearly of opinion that the decree of the Circuit Court can be sustained on this latter view, we need not inquire whether, under all the circumstances, the real estate was subject to the rules which in equity govern that kind of property when it is bought and used for partnership purposes.
Supposing a bill to wind up a partnership and a bill to partition real estate to be so distinct in character that a court must hold it to be one or the other, we think the complaint before us has all the necessary elements of the latter, and is as much entitled to be called a suit for partition as for the dissolution and winding up of a partnership.
It begins by describing the real estate, and declaring that plaintiff and defendants are now, and have been, tenants in common of the lands since the month of July, 1874. It then alleges the plaintiff to be the owner of an undivided half, the defendant, the Marquis de Briges, of three-eighths, and the Marquise de Briges, the other defendant, who, it seems, is his mother, of one-eighth. It shows that the land consists of two separate parcels, which, by the congressional subdivisions o which they consist, must be five or six miles apart, and that one of them is a large tract, used as a summer resort for visitors, and that the whole property is of the value of about $40,00 • It is also alleged, that, by reason of the connection of the hote with the lands, — the latter constituting the Big Tree Groves o Calaveras, — a partition cannot be had without seriously impair^ ing the value of the property. Amongst other relief praye for is a sale of this property, and a distribution of the proce amongst the owners. Here seems to be every thing requisi for a suit in partition.
There is, however, in addition to this, an allegation that the parties had been engaged in keeping this hotel in partnership, and that a difference had arisen by the fault of the defendants, which made a dissolution of that partnership necessary, and this dissolution is prayed for, and a settlement of the accounts; and another prayer of the bill is for a sale of the partnership property, and proper distribution.
The bill is inartificially drawn as a bill in chancery, but is after the model of the Code of Procedure of California, which justifies such a complaint in the courts of that State.
The stating part of it is accordingly divided into seven paragraphs, and they are so numbered. If we are at liberty to disregard the fifth and sixth paragraphs, which alone set out the partnership and the grounds of dissolution, we have no difficulty in finding a bill for partition, with prayer for a sale as a mode of partition, because it would be an injury to the interest of the owners to divide it up.
As there was no demurrer to the bill, as the answer sets up no objection to the jurisdiction, but denies that there is any thing in the condition of the land to forbid actual partition, we see no reason why the bill may not be treated as sufficient for a partition suit. If there is any thing in the allegations which concern the partnership, which introduces another matter, the objection should have been taken by demurrer for multifariousness. It is not fatal to the bill on appeal.
The only question contested in the case on the evidence was, whether the land could be partitioned in kind without serious detriment to the owners.
We are of opinion that the Circuit Court held properly that it could not. J
t consisted of about two thousand acres in two distinct parce s, of. unequal value, five or six miles- apart. These two 1 rce s included all the now well-known big trees of Calaveras, ept a few of that species too small to excite admiration or attract attention. a T^eSe trees are ranked among the curiosities of the world, fiv S0' One them, as the evidence shows, was twenty-tw ^ameter when it was cut down, and took five men y wo days to cut it down. Others still standing are thirty p. 406feet in diameter. The place is visited by people from all parts of the world to see these trees, and the hotel did a profitable business for this reason. It is apparent that the joint ownership of this property must make it far more valuable than it would be if split up into small pieces held by persons who would become rivals for the profits arising from visitors. Such, also, is the weight of the testimony on that subject. It is argued that the two groves, being five miles apart, a division with owelty to make it equal might have been made into two parts. But these would still have been rival and conflicting interests, each injuring the other.
Again, the inequality of the shares into which the property must have been divided was a serious difficulty in the way of actual partition. The three shares must have been an eighth, three-eighths, and a half. And though this might have been overcome by an offer’ of the mother and son to take their two shares as one, no such offer was made, and the court had no power to compel them to do so.
The owner of the one-eighth, if it had a pleasant site for a hotel, would have been as well off, in regard to the most valuable use of the property, as the owner of the one-half, unless the latter had adopted means for excluding the guests of the former, which is, at least, of doubtful practicability, unless at enormous expense.
Sect. 763 of the Code of Civil Procedure of California, c. 4, tit. 10, concerning partition of real property, enacts: “ If it be alleged in the complaint and established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the court, that partition cannot be made without great prejudice to the owners, the court may order a sale thereof.” Sect. 752 embodies the same principle.
The complainant in this case makes the necessary allega tion, and we think it is sustained by the proof.
Decree affirmed.