204

FEDERAL REPORTER,

vol. 53.

FULLER et aL v. MONTAGUE et

ai.

(Circuit Court, E. D. Tennessee, S. D.

LACHE8-WHAT CONSTITUTES--:-TIME OF DELAY.

December 8, 1892.)

Certain town lots were purchased in 1839 by F. and P., and were conveyed to them jointly. The deed was duly recorded. F. made his copurchaser his agent to take care of the property. In 1844 P. conveyed, without F. 's knowledge, the entire title to the lots, the deed being recorded in 1851. F. died in 1&46. The iots were subsequently t'onveyed to innocent third parties. IIi a SUit brought in 1892 by the heirs at law of IT'. to have their interest in the property established, it appeared that the original deed was discovered in 1887; that complainants were not altogether ignorant of the existence of their rights prior to this discovery, or of the several transactions connected with the property; and that they had opportunity for investigation. Held, that complainants were guilty of laches barring a recovery.

InEquity. Bill by Job» P. Fuller and others, heirs at law of SimeQn Fuller, Jr., again:st T. J. Montague and others to establish an interest in certain lands, and to have the same partitioned. Heard on demurrers and motions to dismiss the bill. Bill dismissed. .Wells & Body, for complainants. Wheeler & McDermott, Eakin & Dickey, and W. G. M. Thomas, for defendants. . KEY, District .Judge.The bill alleges that complainants are the heirs oV:;imeon Fuller, Jr., who died in that in 1839 Fuller and his brother-in-law, Moses Pressly, purchased and had conveyed to themseyeral town lots in Chattanooga jointly, and the deed was duly registered. The bill states that the register's office clearly complainants'title, and has given notice to the world that FUller's.titJe to these lots has never passed from or been divested out of him. or his heirs... .It is alleged that Fuller made Pressly his agent to take care of tb.isproperty, pay taxes on it, etc.; that in 1844, two yOOf.s before tlle, death of Fuller, Pressly conveyed, or purported to do so. thee;ntire title to these lots to one Whitley, in betrayal of the trust r.eposed in him, and that, the deed was withheld frOm registration until 1851, so that possession might perfect the titlE;j before knowledge of the conveyance should be given, but it was in 1851. These various transactions, it is alleged, werecotl,ceale<}. fraudulently from complainant!'!. and their ancestor until 1881. when complainant John P. Fuller, in searching through his papers; found the original deed which conveyed the. lots to. Fuller and Pressly, and, finding no deed conveying his father's interest to PrE\Ssly, he suspected fraud, "and his reflections led to investigation." 'l'he bill is not filed against· the wrongdoers, Pressly or Whitley, their heirs, representatives, or estates, but against the present claimants of the lots, and seeks to have complainants declared entitled to an undivided interest of one half in the lots, and to have the lots partitioned... The bill not charge fraud upon the defendants, but- claims that the register's books give them notice of complain

FULLER tl. MONTAGUE·.

205

ants' title. It is true that the prime object of our registration is to give notice to those who may purchase lands as to the character of title, and whether there are other and better titles than that which they propose to purchase, yet when parties know, or have rea· son to believe, that they or those under whom they claim have or have had title to lands, the books would be the repository which they would examine to ascertain how their interests may appear. It is true that complainants rather feebly allege that they had no knowledge of the existence of their interests until th'3 original deed was discovered, but in another part of their bill they assert that their uncle told them that he had owned lands together with their father, but that before his death their father had sold them aU to him. Again, we find the following language in regard to what Fuller, the lmcestor, said:
"And in his last lllness, and when death approached, [he] expressed his as· surance that his brother-in-law and cotenant, Pressly, would care for and llreserve the investment in and about Chattanooga so that it might be profitable by the time l;Jis three children (your orators) should grow up."

This was in 1846, and evidently this deathbed announcement has been all along known to· complainants. At all events, they do not show that their knowledge of their father's expression is of recent occurrence. We have, then, the uncle's announcement that he and the elder Fuller had owned lands jointly, but that Fuller had sold out to hiIil, and we have Fuller's express deathbed declaration that he had lands in and about Chattanooga, and that he hoped that they might become valuable by the time his children should be grown, and we have the deed to Pressly and Fuller and the deed to Whitley both registered in or near Chattanooga, and yet are told that com· plainants have been diligent. Chattanooga is within four miles of the Georgia line, and is the terminus of the Western & Atlantic Railroad, and that road is the property of the state of Georgia. 80 that complainants have not been in such remote and inaccessible distance from their propert;}". There is no charge of fraud, except that perpetrated by complainallts' uncle, the agent chosen and empowered and indorsed as such by their ancestor. Their own selected representative, clothed with power and indorsed as honest and worthy of confidence by the an' eestor of complainants, according to their bill, has defrauded them under such circumstances that equity gives them superior claim over the defendants who have not participated in the fraud. Wily should they who are in no wise responsible for the agent suffer, in preference to him who selected the agent, and gave him opportunity'? For complainants occupy no better condition than their ancestor. stand in his shoes. More than 50 years ago these lots were ac,(wired by Fuller and Pressly. Five years after they were conveyed by Pressly to Whitley, two years before Fuller's death. The. firSl deed has been'registered for 53 years; the second, 41 years. rfhe registration of t4e last deed is not compatible with the theory of .concealment, but, on the contrary, gave notice to the world of the transaction. Complainants are over 50 years old, and have not been altQgether, of these transactions. Moreover, they admit

·

206

FEDERAL' 'lUllPORTEB' ·. vol. :53.

that in ·1887the.y became l of their t uncle's: alleged' frau,d.; and yet: they. waited until November 1, 1892,.a;ipemod of five years andupwillrds,JPerbaps, before'1Jhis bill was filed. When the original deedwaB':clliJeovered it furnished the e'Vidence of its registration. Diligence: :w(JUld have plainly: indicated that the registration books in ChaWt'ntlogabe examined to show how. the title appeared Tho deed of Pressly-tO Whitley would have at once. been discovered., and the refl.ectITo:n of complainants,. which they say produced investiga· tion", was 'unnecessary. Their; want of diligence in this is a circumstance wei may:look to for what preceded. It is apparent that the statum oflim!imtions, according to complainants' own theory, began to run in 18441, and continued to run until the death of Fuller, two years. '. His children were' mi:rwrs and had three years after arrivinj:{ at their majority to bring suit. Suppose that they were fraudulently kept in ignorance of theirrigh.ts until 1887. 'l'hey would have three years from time to bring suit before ,the bar of the statute would haYe been completl3: . But they waited for more than five years. But suppose everYthing up to 1887 was as complainants imdst; It was a want of diligence on then'>! part, in such a claim, to wait for five years and more ,to assert theiJlclaim. It seems clear that compUl.inants have been ,guilty of such laches that 'they cannot recover,and that they are.barred., also, by the statuhlof'limitations, and that these facts appear on the face of the bUt The demurrers andmotiona to dismiss ,will be sustained, and the' bill :dismissed.
1

FULLER

et'at v. MONTAGUE et oJ.

(Circuit Court, So D.Tennessee,' Eo D. December 14, 1892.)

1 ACTION ,IN FORMA OA'I'H. Where Jl. suit prosectIted :In forma pauperis luis been dismissed on demurrer to' the bill, defendant cannot, pending an application for the allowance of an appeal, susts!1l11.p1otion to dismiss the case because the oath for ,leave to prosecute lnfOXXlla pauperis was defective both in form and substnJUle. , ' , " ·, . ' , .

2. SAME,-ApPltALs":"ApPlui'

Act July 20, 1892; 'providing that any citizen entitled to bring any suit in the' federal courtll· may "commence and prosecute to conclusion" such suit 'wltllout or costs, 01' giving security therefor, embraces t1).e right to appeal qircuit court of appeals; and, when the proper oath bils been filed, no appeal bond cali be. required.

In Equity. Bill by John P. Fuller and others, heirs at law of Simeon FUller, Jr., against'T. H. Montague and others to establish an interest in lands, and to haYe the same partitioned. The bill was heretofore dismissedori:idemurrer. See 53 Fed. Rep. 204, where a full statement of the, Mse' will be found Plaintiffs having prayed an appeal' to the circuit of appeals, defendants now move to dismiSs the case becaUile'the cause of action is frivolous, and because the oath in forma pauperis; under which they brought the suit, is i l1sttftieient. Motion denied, and appeal allowed on the filing of
ther' affidavits.