text:
amendment and recommends that the bill as amended do pass.
This Act may be cited as the ``Government Litigation Savings Act''.
SEC. 2. MODIFICATION OF EQUAL ACCESS TO JUSTICE PROVISIONS.
for the Chairman to comply with the requirements of this subsection.
The report shall be made available to the public online.
contrary to the national security of the United States.
to nondisclosure provisions in the settlement agreement.
``(1) The name of each party to whom the award was made.
party to whom the award was made.
agency to which the application for the award was made.
``(6) The amount of the award.
whose services the award was made under the application.
agency concerned was not substantially justified.
determined by the Secretary of Labor.''.
justified or that special circumstances make an award unjust.
determined by the Secretary of Labor.
of which is contrary to the national security of the United States.
nondisclosure provisions in the settlement agreement.
``(iii) the statute under which the plaintiff filed suit.
``(A) The name of each party to whom the award was made.
``(C) The agency involved in the case.
agency involved in the case.
which the case was heard.
``(F) The amount of the award.
whose services the award was made.
the Chairman's responsibilities under this subsection.''.
States Code,'' and inserting ``of this section''.
audit and submit to the Congress a report on the results of the audit.
EAJA is serving all legitimate beneficiaries.
\1\See Alyeska Pipelines Serv. Co. v. Wilderness Soc'y, 421 U.S.
\2\Hall v. Cole, 412 U.S. 1, 5 (1973) (citations omitted).
\4\La Raza Unida v. Volpe, 57 F.R.D. 94, 98 (N.D. Cal. 1972).
\5\See 421 U.S. at 263.
Government Conduct: Notes on the Equal Access to Justice Act, 2004 Ark.
L. Notes 65, 65 (2004).
government policies and enforcement actions).
\9\99 P.L. 80, 99 Stat. 183 (Aug. 5, 1985).
\11\Comm'r v. Jean, 496 U.S. 154, 163 (1990).
Act Amendments, H.R. Rep. No. 99-120, at 4 (1985)).
\13\Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir.
\14\Kelley, note 6 supra, at 65.
\15\See 28 U.S.C. Sec. 2412(b).
\16\See 5 U.S.C. Sec. 504(a); 28 U.S.C. Sec. 2412(d).
that could satisfy a reasonable person.'').
\18\5 U.S.C. Sec. 504(b)(1)(B); 28 U.S.C. Sec. 2412(d)(2)(B).
\20\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(4).
Sec. 502(B) (Oct. 29, 1992).
\22\Federal Reports Elimination and Sunset Act of 1995, 104 P.L.
66, Sec. 1091(b) (Dec. 21, 1995).
\23\Government Litigation Savings Act: Hearing before the Subcomm.
Judiciary, 112th Cong. (Oct. 11, 2011).
payments made in Social Security and veteran's benefits cases.
But no comprehensive, reliable data is available since FY1995.
could provide any data on EAJA payments for FY2000 to FY 2010.
shortcoming of the current EAJA regime.
of Justice of the H. Comm. on the Judiciary, 95th Cong., at 73 (Apr.
\25\S. Rep. No. 96-253, note 7 supra, at 10.
Justice Act: Its Use in Selected Agencies, at 3 (GAO/HEHS-98-58-R Jan.
Attorney Fee Claims and Payments (GAO-12-417R Apr. 12, 2012).
63 (Testimony of Jennifer Ellis); 96 (Testimony of Brian Wolfman).
Sec. 232(b) (Mar. 29, 1996).
(Testimony of Jennifer Ellis); see also Ctr. for Food Safety v.
attorneys under EAJA's special factor exception).
\36\See Environmental Litigation, note 27 supra.
Wash. Examiner, Aug. 31, 2011, at 29.
Litigate?, 109 J. Forestry 352, 354-55 (2011).
\40\Ctr. for Food Safety v. Vilsack, No. 08-cv-00484-JSW, Dkt. No.
\41\See Report and Recommendations, note 32 supra.
``closed'' between September 1, 2009, and August 31, 2010, Mr.
\43\See Government Litigation Savings Act, note 23 supra, at 49.
\44\See id. at 48 (Testimony of Lowell Baier).
always understood that people can push their agendas in court.
rollcall vote of 19 to 14, a quorum being present.
vote of 14 to 18.
markup. Ms. Jackson Lee appealed this ruling, and Mr.
Motion agreed to by vote of 19 to 13.
the base text for purposes of markup is not subject to appeal.
House. Motion agreed to by vote of 19 to 14.
Washington, DC, June 26, 2012.
Gnechten and Matthew Pickford, who can be reached at 226-2860.
H.R. 1996--Government Litigation Savings Act.
when they prevail in a case against the government.
Administrative Conference of the United States (ACUS).
litigation against the Federal Government.
resources to pursue claims against the Federal Government.
only payments that are made from an agency's appropriation.
significant impact on caseload or awards of attorneys' fees.
would not be significant in any year.
rule XIII of the Rules of the House of Representatives, H.R.
needed reforms to the EAJA.
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Access to Justice Act, at 5 U.S.C. Sec. 504 and 28 U.S.C.
adjudication for lack of resources to pay an attorney.
\51\See id. at 61 (Testimony of Jennifer Ellis).
adjust the cap annually according to the Consumer Price Index.
of awards a party can receive.
\52\See id. at 91-92, 102.
a clerical amendment to the U.S. Code.
Section 2(b) makes analogous changes to 28 U.S.C.
concerning such a direct and personal interest.
should follow to make a policy or decision.
2(b) makes this limitation more explicit.
hourly cap on attorney's fees.
payments made during the ``blackout'' period.
commenced, aware of the provisions of this section.
title 28[, United States Code].
each party to whom the award was made.
is the subject of the application for the award.
(6) The amount of the award.
the agency concerned was not substantially justified.
Consumer Price Index, as determined by the Secretary of Labor.
resolution of the matter in controversy.
shall be made available to the public online.
to the national security of the United States.
(C) The agency involved in the case.
the agency involved in the case.
court in which the case was heard.
(F) The amount of the award.
witness for whose services the award was made.
which are currently eligible for fee recovery. Second, H.R.
various groups to obtain legal representation. In essence, H.R.
legal fees and expenses when they challenge government action.
became permanent in 1985. Pub. L. No. 99-80, 99 Stat. 183 (1985).
Environmental Law Center, and WildEarth Guardians oppose H.R.
\2\Letter Opposing the ``Government Litigation Savings Act'' (H.R.
\3\Pub. L. No. 96-481, Sec. 202(a), 94 Stat. 2325 (1980).
President Reagan expressed strong support for the legislation.
\6\See, e.g., 42 U.S.C. Sec. 1988; 42 U.S.C. Sec. 2000e-5(k).
487 U.S. 552, 565 (1988).
\9\5 U.S.C. Sec. 504(b)(1)(A); 28 U.S.C. Sec. 2412(d)(2)(A).
the adjudication or case by the hourly market rate. See Blum v.
\11\5 U.S.C. Sec. 504(a)(3); 28 U.S.C. Sec. 2412(d)(1)(C).
\12\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(2)(A).
\13\5 U.S.C. Sec. 504(b)(1)(B); 28 U.S.C. Sec. 2412(d)(2)(B).
Oct. 1, 1993-Sept. 30, 1994 2 (1995) (citing 5 U.S.C. Sec. 504(e)).
\16\Federal Reports Elimination and Sunset Act of 1995, Pub. L. No.
104-66, title III, Sec. 3003, 109 Stat. 734 (1995).
proceedings, and the parties involved in those controversies.
\17\H.R. 4717, 111th Cong. (2010).
predecessor. In addition to the reporting requirements, H.R.
are presently eligible could be barred.
reduce awards based on an unduly or unreasonable party.
being eligible to recover attorneys' fees under EAJA.
courts are interpreting very loosely.'').
\21\ACUS report, supra, note 15.
language mirrors the language proposed in Section 2(a)(1).
costs to plaintiffs who sue the government in court.
calendar year in which H.R. 1996 is enacted.
the facts are to the contrary.
threshold would seem to contain the prevalence of EAJA awards.
\23\5 U.S.C. Sec. 504(a)(1); 28 U.S.C. Sec. 2412(d)(1)(A).
line is, there has been no government-wide accounting of EAJA payments.
ACUS report, supra, note 15.
country have been in the dark of the costs of EAJA, which is why [H.R.
Emeritus of the Boone and Crockett Club).
An audit and annual reporting of EAJA, as required in H.R.
awards of fees and expenses under EAJA cannot be understated.
information concerning agency payments predicated on the act.
on Courts, Commercial and Administrative Law) (Oct. 11, 2011).
and policy-driven litigation against the Federal Government.'').
Use in Selected Agencies 4 (GAO/HEHS-98-58-R, Jan. 14, 1998).
we believe that the ATM card type use of the EAJA began.
change the substantive law of EAJA without having the data.
\36\Id. at 63 (written statement of Ellis).
\37\Id. at 94 (testimony of Wolfman).
H.R. 1996 clearly does put the cart before the horse.
profits to challenge government action.
\38\Id. at 92 (written statement of Wolfman).
\39\See 28 U.S.C. Sec. 2412(d)(2)(A).
\40\See Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir.
\41\See Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).
\45\H.R. 1996, 112th Cong. Sec. 2(a)(2), 2(b)(3) (2011).
costs, for a good one right now, $400 an hour.'').
of the Committee on the Judiciary).
Member of the Committee on the Judiciary).
amendment was defeated 14 to 18.
their standard, as the amendment would seek to do.'').
\51\Id. at 29 (statement of Representative Hank Johnson).
\52\See id. at 33 (statement of Representative Nadler).
Henry C. ``Hank'' Johnson, Jr.

matches: v. v. v. v. v. v. v. v. v. v.


Mr. Joseph C. Waddy, Washington, D. C., with whom Messrs. William C. Gardner and William B. Bryant, Washington, D. C., were on the brief, for appellant.
Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.
This is a suit by a former foreign-service employee of the International Cooperation Administration, seeking to be restored to his position. Plaintiff-appellant urges chiefly that the charges against him were not sufficiently specific, and that the Director of the agency made no findings upon the charges, simply notifying him that the actions taken by subordinate officials respecting his case were proper, and that his employment was terminated.
We consider the charges made sufficiently detailed to afford the employee a fair opportunity to defend himself. Cf. Baughman v. Green, 97 U.S. App.D.C. 150, 229 F.2d 33 (1956). As to the second point, when statutes or regulations require disclosure to employees of the precise findings made against them, the requirement will be enforced by the courts. Cf. Mulligan v. Andrews, 93 U.S.App.D.C. 375, 211 F.2d 28 (1954); Coleman v. Brucker, 103 U.S. App.D.C. 283, 257 F.2d 661 (1958). Here, however, we find no such requirement in any applicable statute or regulation. See Foreign Service Act of 1946, §§ 651, 652, 60 Stat. 1017, 22 U.S.C.A. §§ 1021, 1022 (1952); 1 Foreign Service Manual, Part IV, §§ 761-64. The Manual requires that "the employee charged * * * be notified in writing of the * * * [Director's] decision." Id. § 764.5. This was done. So far as appears, the Director complied fully with the statute and regulations.
We note also that plaintiff-appellant made no request to the agency for disclosure of the Appeal Board's report, containing findings and recommendations made after a hearing on the charges, see 1 Foreign Service Manual, Part IV, § 764.4; nor did he request information as to the precise basis for the Director's action in terminating his employment after receiving the Board's report. Cf. id. § 764.35. Further, nothing in the report, which was disclosed when the Government moved for summary judgment, indicates that the action taken was in any way arbitrary or illegal.


60-2301. Homestead; extent of exemption.
Except as provided in K.S.A. 2011 Supp. 12-524a, and amendments thereto, a homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, or a manufactured home or mobile home, occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of such premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists.
History: L. 1963, ch. 303, 60-2301; L. 1979, ch. 178, § 2; L. 1980, ch. 176, § 2; L. 1991, ch. 33, § 35; L. 2011, ch. 101, § 11; June 2.
Whenever any levy shall be made upon the lands or tenements of a householder whose homestead has not been selected and set apart, such householder, the householder or householder's spouse, when the marriage relationship exists, or an agent or attorney of the householder may notify the officer in writing at the time of making such levy, or at any time before the sale, of what the householder regards as the homestead, with a description thereof, and the remainder alone shall be subject to sale under such levy.
History: L. 1963, ch. 303, 60-2302; L. 1975, ch. 52, § 21; L. 1980, ch. 176, § 3; April 26.
60-2303. Contract for conveyance of homestead.
No action for the specific performance of a contract for the sale or exchange of real estate in the state of Kansas or for damages by reason of the violation of any contract to sell or exchange lands within the state of Kansas, occupied as a homestead by the owner and his or her family, shall be maintained unless the contract of sale is signed by both the husband and wife, or by an agent or broker duly authorized in writing by both the husband and wife to make such sale or exchange.
History: L. 1963, ch. 303, 60-2303; Jan. 1, 1964.
60-2304. Personal property; articles exempt.
(a) The furnishings, equipment and supplies, including food, fuel and clothing, for the person which is in the person's present possession and is reasonably necessary at the principal residence of the person for a period of one year.
(b) Ornaments of the debtor's person, including jewelry, having a value of not to exceed $1,000.
(c) Such person's interest, not to exceed $20,000 in value, in one means of conveyance regularly used for the transportation of the person or for transportation to and from the person's regular place of work, except that the value limitation specified in this subsection shall not apply when the means of conveyance is a vehicle designed or equipped, or both, for handicapped persons, as defined in K.S.A. 8-1,124 and amendments thereto.
(d) A burial plot or crypt or any cemetery lot exempt from process pursuant to K.S.A. 17-1302 and amendments thereto.
(e) The books, documents, furniture, instruments, tools, implements and equipment, the breeding stock, seed grain or growing plants stock, or the other tangible means of production regularly and reasonably necessary in carrying on the person's profession, trade, business or occupation in an aggregate value not to exceed $7,500.
(f) Any personal property exempt from process pursuant to K.S.A. 36-202, 48-245 or 84-2-326, and amendments thereto.
History: L. 1963, ch. 303, 60-2304; L. 1965, ch. 357, § 1; L. 1970, ch. 242, § 1; L. 1980, ch. 176, § 4; L. 1987, ch. 225, § 3; L. 1988, ch. 217, § 2; July 1.
60-2306. Not exempt from taxes.
Nothing in this article shall be construed as exempting any personal property from taxation or sale for taxes under the laws of this state.
History: L. 1963, ch. 303, 60-2306; Jan. 1, 1964.
60-2307. Not exempt for wages.
None of the personal property mentioned in this article shall be exempt from attachment or execution for the wages of any clerk, mechanic, laborer or servant.
History: L. 1963, ch. 303, 60-2307; Jan. 1, 1964.
60-2308. Pension and retirement money exempt, exception; family postsecondary education savings account money exempt, exception; support money held by SRS exempt.
(a) Money received by any debtor as pensioner of the United States within three months next preceding the issuing of an execution, or attachment, or garnishment process, cannot be applied to the payment of the debts of such pensioner when it appears by the affidavit of the debtor or otherwise that such pension money is necessary for the maintenance of the debtor's support or a family support wholly or in part by the pension money. The filing of the affidavit by the debtor, or making proof as provided in this section, shall be prima facie evidence of the necessity of such pension money for such support. It shall be the duty of the court in which such proceeding is pending to release all moneys held by such attachment or garnishment process, immediately upon the filing of such affidavit, or the making of such proof.
(b) Except as provided in subsection (c), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under sections 401(a), 403(a), 403(b), 408, 408A or 409 of the federal internal revenue code of 1986 and amendments thereto shall be exempt from any and all claims of creditors of the beneficiary or participant. Any such plan shall be conclusively presumed to be a spendthrift trust under these statutes and the common law of the state.
(c) Any plan or arrangement described in subsection (b) shall not be exempt from the claims of an alternate payee under a qualified domestic relations order. However, the interest of any and all alternate payees under a qualified domestic relations order shall be exempt from any and all claims of any creditor, other than the Kansas department for children and families, of the alternate payee. As used in this subsection, the terms "alternate payee" and "qualified domestic relations order" have the meaning ascribed to them in section 414(p) of the federal internal revenue code of 1986 and amendments thereto.
(d) The provisions of subsections (b) and (c) shall apply to any proceeding which: (1) Is filed on or after July 1, 1986; or (2) was filed on or after January 1, 1986, and is pending or on appeal July 1, 1986.
(e) Money held by the central unit for collection and disbursement of support payments designated pursuant to K.S.A. 23-4,118, and amendments thereto, the Kansas department for children and families, any clerk of a district court or any district court trustee in connection with a court order for the support of any person, whether the money is identified as child support, spousal support, alimony or maintenance, shall be exempt from execution, attachment or garnishment process.
(B) was filed prior to January 1, 2002, and is pending on or on appeal after January 1, 2002.
(2) Except as provided by paragraphs (3) and (4) of this subsection, if the designated beneficiary of a family postsecondary education savings account established pursuant to K.S.A. 2005 Supp. 75-640 et seq., and amendments thereto, is a lineal descendant of the account owner, all moneys in the account shall be exempt from any claims of creditors of the account owner or designated beneficiary.
(B) claims of any creditor of an account owner, as to amounts contributed within a one-year period preceding an execution on judgment for such claims against the account owner.
(B) claims of any creditor of an account owner, as to amounts exceeding $5,000 contributed within a period of time which is more than one year but less than two years preceding an execution on judgment for such claims against the account owner.
History: L. 1963, ch. 303, 60-2308; L. 1980, ch. 176, § 5; L. 1986, ch. 220, § 1; L. 1992, ch. 312, § 40; L. 1999, ch. 80, § 1; L. 2001, ch. 195, § 8; L. 2002, ch. 104, § 1; L. 2014, ch. 115, § 233; July 1.
60-2309. Wages earned in another state.
Wages earned out of this state and payable out of this state shall be exempt from attachment or garnishment in all cases where the cause of action arose out of this state, unless the defendant in the attachment or garnishment suit is personally served with process, and if the writ of attachment or garnishment is not personally served on the defendant, the court issuing the writ of attachment or garnishment shall not entertain jurisdiction of the cause, but shall dismiss the suit at the cost of the plaintiff.
History: L. 1963, ch. 303, 60-2309; Jan. 1, 1964.
60-2310. Wage garnishment; definitions; restrictions, exceptions; sickness preventing work; assignment of account; prohibition on courts.
(4) "federal minimum hourly wage" means that wage prescribed by subsection (a)(1) of section 6 of the federal fair labor standards act of 1938, and any amendments thereto.
(b) Restriction on wage garnishment. Subject to the provisions of subsection (e), only the aggregate disposable earnings of an individual may be subjected to wage garnishment. The maximum part of such earnings of any wage earning individual which may be subjected to wage garnishment for any workweek or multiple thereof may not exceed the lesser of: (1) Twenty-five percent of the individual's aggregate disposable earnings for that workweek or multiple thereof; (2) the amount by which the individual's aggregate disposable earnings for that workweek or multiple thereof exceed an amount equal to 30 times the federal minimum hourly wage, or equivalent multiple thereof for such longer period; or (3) the amount of the plaintiff's claim as found in the order for garnishment. No one creditor may issue more than one garnishment against the earnings of the same judgment debtor during any one 30-day period, but the court shall allow the creditor to file amendments or corrections of names or addresses of any party to the order of garnishment at any time. In answering such order the garnishee-employer shall withhold from all earnings of the judgment-debtor for any pay period or periods ending during such 30-day period an amount or amounts as are allowed and required by law. Nothing in this act shall be construed as charging the plaintiff in any garnishment action with the knowledge of the amount of any defendant's earnings prior to the commencement of such garnishment action.
(c) Sickness preventing work. If any debtor is prevented from working at the debtor's regular trade, profession or calling for any period greater than two weeks because of illness of the debtor or any member of the family of the debtor, and this fact is shown by the affidavit of the debtor, the provisions of this section shall not be invoked against any such debtor until after the expiration of two months after recovery from such illness.
(4) collections pursuant to contracts entered into in accordance with K.S.A. 75-719 and amendments thereto involving the collection of restitution or debts to district courts.
(3) any debt due for any state or federal tax.
(f) Prohibition on courts. No court of this state may make, execute or enforce any order or process in violation of this section.
(3) with respect to the disposable earnings of any individual for any workweek, the 50% specified in clause (1) shall be 55% and the 60% specified in clause (2) shall be 65%, if such earnings are subject to garnishment to enforce a support order for a period which is prior to the twelve-week period which ends with the beginning of such workweek.
History: L. 1963, ch. 303, 60-2310; L. 1967, ch. 324, § 2; L. 1968, ch. 404, § 1; L. 1970, ch. 238, § 1; L. 1972, ch. 222, § 4; L. 1976, ch. 210, § 7; L. 1977, ch. 206, § 1; L. 1978, ch. 227, § 5; L. 1979, ch. 183, § 5; L. 1982, ch. 250, § 1; L. 1983, ch. 289, § 1; L. 1985, ch. 115, § 51; L. 1988, ch. 212, § 3; L. 1988, ch. 213, § 3; L. 1994, ch. 273, § 5; L. 1996, ch. 195, § 3; L. 1997, ch. 182, § 103; L. 2014, ch. 115, § 234; July 1.
60-2311. Discharge of employee due to wage garnishment prohibited.
No employer may discharge any employee by reason of the fact that the employee's earnings have been subjected to wage garnishment.
History: L. 1970, ch. 238, § 2; L. 1973, ch. 237, § 1; L. 1979, ch. 183, § 6; July 1.
60-2312. No right to elect exemptions under federal law, exception.
(a) Except as provided in subsection (b), no person, as an individual debtor under the federal bankruptcy reform act of 1978 (11 U.S.C. §101 et seq.), may elect exemptions pursuant to subsection (b)(1) of section 522 of such federal act.
(b) An individual debtor under the federal bankruptcy reform act of 1978 may exempt, in addition to any other exemptions allowed under state law, any property listed in subsection (d)(10) of section 522 of such federal act. The provisions of this subsection shall apply to any bankruptcy action which: (1) Is filed on or after July 1, 1986; or (2) was filed on or after April 26, 1980, and is pending or on appeal on July 1, 1986.
History: L. 1980, ch. 176, § 1; L. 1986, ch. 220, § 2; July 1.
60-2313. Exemptions from legal process.
(1) Any pension, annuity, retirement, disability, death or other benefit exempt from process pursuant to K.S.A. 12-111a, 12-5005, 13-1246a, 13-14,102, 13-14a10, 14-10a10, 20-2618, 72-1768, 72-5526, 74-4923, 74-4978g, 74-49,105 or 74-49,106, and amendments thereto.
(2) Any public assistance benefits exempt pursuant to K.S.A. 39-717 and amendments thereto.
(3) Any workers' compensation exempt from process pursuant to K.S.A. 44-514 and amendments thereto.
(4) Any unemployment benefits exempt from process pursuant to K.S.A. 44-718 and amendments thereto.
(5) Any crime victims compensation award exempt from process pursuant to K.S.A. 74-7313 and amendments thereto.
(6) Any liquor license, club license or cereal malt beverage wholesaler's or distributor's license exempt from process pursuant to K.S.A. 41-326, 41-2629 or 41-2714, and amendments thereto.
(7) Any interest in any policy of insurance or beneficiary certificates upon a person's life exempt from process pursuant to K.S.A. 40-414 and amendments thereto.
(8) Any fraternal benefit society benefit, charity, relief or aid exempt from process pursuant to K.S.A. 40-711 and amendments thereto.
(9) Any trust funds held in a cemetery merchandise trust and exempt from process pursuant to K.S.A. 16-328 and amendments thereto.
(10) Any funds held in an account or trust established pursuant to a prearranged funeral agreement, plan or contract and exempt from process pursuant to K.S.A. 16-310 and amendments thereto.
(b) This section shall be part of and supplemental to article 23 of chapter 60 of the Kansas Statutes Annotated.
History: L. 1987, ch. 225, § 1; L. 1989, ch. 239, § 8; L. 1998, ch. 93, § 75; Jan. 1, 1999.
60-2314. Same; municipal, county and state property.
(1) Any municipal property exempt from process pursuant to K.S.A. 12-151 or 17-4753, and amendments thereto.
(2) Any county property exempt from process pursuant to K.S.A. 19-108 and amendments thereto.
(3) Any state property exempt from process pursuant to K.S.A. 60-723 and amendments thereto.
History: L. 1987, ch. 225, § 2; July 1.
60-2315. Bankruptcy proceedings; earned income tax credits.
An individual debtor under the federal bankruptcy reform act of 1978 (11 U.S.C. § 101 et seq.), may exempt the debtor's right to receive tax credits allowed pursuant to section 32 of the federal internal revenue code of 1986, as amended, and K.S.A. 2011 Supp. 79-32,205, and amendments thereto. An exemption pursuant to this section shall not exceed the maximum credit allowed to the debtor under section 32 of the federal internal revenue code of 1986, as amended, for one tax year. Nothing in this section shall be construed to limit the right of offset, attachment or other process with respect to the earned income tax credit for the payment of child support or spousal maintenance.
History: L. 2011, ch. 25, § 1; Apr. 14.


text:
Plaintiff is represented by two employment law firms and a national non-profit organization: Outten & Golden LLP, AARP Foundation Litigation, and The Liu Law Firm, P.C.
Outten & Golden LLP is a 50 attorney firm with offices in New York, San Francisco and Chicago. Outten & Golden represents plaintiffs in a wide variety of employment law matters, including national class and impact statutory discrimination cases, major class-based wage and hour violations, and contract negotiations. Outten & Golden attorneys have substantial experience prosecuting litigation challenging discrimination, including: Chen-Oster v. Goldman Sachs, Inc. (gender class action challenging discriminatory pay and promotion practices); Easterling v. State of Connecticut Department of Correction (gender class action challenging discriminatory hiring practices); Henry-Aiken v. Vanguard (age and race discrimination claims on behalf of two individuals); Houser v. Blank, United States Department of Commerce (race discrimination case challenging the Census Bureau’s unlawful criminal background check policy); Moussouris v. Microsoft Corporation (gender class action challenging discriminatory promotion practices); Zarowin v. Hunter College (age discrimination case challenging discriminatory termination).
For more than two decades, AARP Foundation Litigation (AFL) has been committed to protecting the legal rights of vulnerable older Americans. We continue to advocate on their behalf in federal and state courts across the country. AFL’s employment team of Dan Kohrman, Laurie McCann, and Dara Smith has considerable expertise and litigation experience combating age discrimination in employment. The team’s experience includes serving as co-counsel in the TV Writers litigation, which consisted of 23 class action lawsuits alleging age bias in the selection and representation of older television writers by television studios, networks and talent agencies. The TV Writers litigation culminated in a settlement of $70 million — the largest in the history of age discrimination litigation. AFL also assisted with a case originally brought under Minnesota state law, and later expanded to include claims under the federal Age Discrimination in Employment Act (ADEA) alleging that 3M engaged in systemic intentional discrimination against its older employees in performance appraisals, training, promotions, compensation, and terminations. The case resulted in a $15 million fund to reimburse individuals for lost back pay and also in the company’s agreement to programmatic relief. AFL also has litigated age discrimination cases against many other major U.S. employers, including Ford Motor Co., Goodyear Tire & Rubber Co., Sprint Communications ($56 million settlement), and health insurer Wellpoint. AFL also regularly files “friend-of-the-court” (amicus) briefs in major age and disability cases in the U.S. Supreme Court, lower federal courts and state courts as well.
The Liu Law Firm, P.C. is a San Francisco-based employee and civil rights law firm dedicated to helping individuals protect their rights in the workplace and on college campuses. The firm advises employees on workplace issues, represents employees in employment negotiations, and litigates employment disputes on both an individual and class action basis. The firm also represents student victims of campus sexual assault, harassment, discrimination, and retaliation in Title IX cases.

matches: v. v. v. v. v. v.


In a case referred to a master to report the evidence, the facts, and his conclusions of law, there is a presumption of correctness as to his finding of facts similar to that in the case of a finding by a referee, the special verdict of a jury, the findings of a circuit court in a case tried by the court under Rev.Stat. § 469, or in an admiralty cause appealed to this Court.
In Iowa, an insolvent debtor may make a mortgage or other conveyance of his property to one or more of his creditors, with intent to give them preference, and, in the absence of fraud, such mortgage or conveyance will not operate as a general assignment for the benefit of creditors unless intended so to operate.
The fact that the property so conveyed was much in excess of the debts secured by the conveyance is not necessarily indicative of fraud, but in such cases the question of good faith is one of fact, and a mere error of judgment will not be imputed as a fraud.
The different transfers assailed in this suit examined, and, in the light of these rulings, held to be valid.
The different mortgages assailed in this suit were for several and separate interests, and the one to Kent not being of the amount requisite to give this Court jurisdiction, the appeal as to him is dismissed.
This suit was originally begun by a petition filed December 29, 1884, upon the equity side of the Court of Appeals of Lee County, Iowa, by certain creditors who had previously attached the stock in trade at Fort Madison, Iowa, of one John H. Schwartz, to set aside and vacate four chattel mortgages upon such property, and subject the same to the payment of their debts.
petition of the plaintiffs Samuel C. Davis & Co., of St. Louis, and E. S. Jaffray & Co., of New York, to the Circuit Court of the United States for the Southern District of Iowa, in which court the record was filed January 9, 1885. Subsequently, and on January 17, a receiver was appointed who took possession and made an inventory of the property and soon thereafter sold the same for the net sum, after deducting costs and expenses, of about $50,000, which was placed at interest by order of the court and, with the accumulated interest, amounts now to upwards of $66,000, held by the court to abide its order herein.
so seized and converted and that it be distributed under the order of the court.
A large amount of testimony was taken, and finally on January 16, 1889, the case was referred, by consent of parties, to a master "to hear said causes and report to this court his findings of facts and conclusions of law."
The following is a summary of the most important facts: John H. Schwartz, a citizen of Iowa, residing at Fort Madison, had for some years been a retail dry goods and clothing merchant, carrying on his principal business at Fort Madison, with an estimated stock of about $100,000, and with a branch store at Chariton, estimated at about $16,000, and another at Dallas City, Illinois, estimated at $17,000. In addition to this, he owned real estate in Fort Madison valued at $17,000, together with notes and accounts, stock in a ferry company and in a building association, the value of which was somewhat uncertain. There were a mortgage and mechanics' liens upon the real estate to the amount of about $13,000, under which the property was sold, and the values therein involved figure only indirectly in this controversy.
total indebtedness appears, then, to have been about $84,000, and his assets about $144,000. Late in December, some $6,000 of his indebtedness to Jaffray & Co. falling due, he wrote to his father-in-law for his endorsement upon a promissory note for that amount. Hellman, desiring to investigate his son-in-law's business before becoming responsible for a further amount, went to Fort Madison, learned the amount of his debts and assets, refused to advance any more money or sign the notes, and advised Schwartz to send for the representatives of Davis & Co. and Jaffray & Co., tell them of his situation and intentions and ask for an extension of time.
Schwartz accordingly telegraphed for these representatives, who arrived at Fort Madison on Saturday morning, December 27, and held a conference with him at his house in the presence of Hellman. Schwartz gave a full account of his debts and assets, and asked for an extension of the Davis and Jaffray claims. Schwartz and Hellman claim that they were given to understand that the extension would be granted, and that the representatives of these firms would return after dinner with the extension notes prepared for Schwartz to sign. There is some dispute as to what was done that day, but, instead of returning to Schwartz, it appears that the two representatives prepared petitions for attachments upon his stock, though the writs were not issued, apparently because they were awaiting indemnity for the surety upon the attachment bond. It seems that Schwartz and Hellman became suspicious at the failure of the representatives of the two firms to return with the extension notes, and on Sunday evening met at the residence of one of their counsel, Casey & Casey at which were present John H. Hellman, John H. Schwartz, H. D. McConn, cashier of the German-American Bank, and Joseph B. Schwartz, a brother. After midnight and before dawn of Monday morning, the 29th, the four chattel mortgages in question were drawn up, taken to the bank, acknowledged before a notary, and delivered to the recorder of deeds, and filed by him about 5 o'clock in the morning.
was unable to comply with such demand, presented to each one of the mortgagees a key to his store in Fort Madison, where the largest part of the goods was, whereupon the mortgagees at once, and at a very early hour in the morning, entered into possession, put up notices that the goods were being sold under mortgage, and, by the time the attachments were levied had made sales of about $70 worth of property.
As soon as it was known that the mortgages were made and the mortgagees were in possession, Davis & Co. and Jaffray & Co. sued out their writs of attachment, and at once levied the same upon the stock of goods and upon the real property owned by Schwartz in Fort Madison. Under indemnity bonds given by the attaching creditors, the sheriff, as provided by the statutes of Iowa, continued in possession, the mortgagees relinquishing their claim to the property, and falling back upon the present suit to enforce their debts.
The master made his report on January 1, 1890, finding the mortgage to Hellman valid and the others invalid upon the ground that they embraced notes or accounts claimed to be owing by Schwartz to the mortgagees, which were not in fact debts due to such mortgagees; that the amount so secured had been fraudulently exaggerated for the purpose of defrauding the general creditors, and adjudging that, so far as such mortgagees had received payment on their debts derived from sales of the property mortgaged, they should account to the attaching creditors who had garnished such mortgagees, according to the priority of such creditors in effecting these garnishments.
to the general creditors pro rata -- that is, in proportion to the amount shown to be due and owing said parties from the insolvent debtor. It was further decreed that the mortgage defendants served as garnishees be discharged as such garnishees, and, as the fund in court had been loaned, upon bond and security, to the Polk County Savings Bank of Des Moines, that the clerk withdraw the money from such bank, and make payment to the several parties adjudged to be entitled thereto. From this decree plaintiffs appealed to this Court.
This is a contest between the attaching creditors and the chattel mortgagees of the property of John H. Schwartz, an insolvent debtor, formerly engaged in business at Fort Madison and Chariton, in the State of Iowa, and at Dallas, in the State of Illinois. These two classes of creditors are in reality competitors in a race of diligence, the object of which was to obtain a lien upon and possession of the property in question.
Dall. 321; Bond v. Brown, 12 How. 254; Graham v. Bayne, 18 How. 60, 59 U. S. 62; Norris v. Jackson, 9 Wall. 125; Insurance Co. v. Folsom, 18 Wall. 237, 85 U. S. 249; The Abbotsford, 98 U. S. 440.
"like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed, under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise."
As the reference in this case was by consent to find the facts, we think the rule in Kimberly v. Arms applies, and, as there is nothing to show that the findings of fact were unsupported by the evidence, we think they must be treated as conclusive. To same effect are Crawford v. Neal, 144 U. S. 585, 144 U. S. 596; Furrer v. Ferris, 145 U. S. 132.
attachment at a most unusual hour of the day, and were immediately foreclosed by the mortgagees, and possession taken of the property. There are undoubtedly indicia of fraud connected with the transaction, but, after all, they are only items of testimony bearing upon the main question, and if there be nothing to impeach the consideration and the good faith of the parties, the fact that the mortgagees intended to obtain a preference over other creditors should not invalidate the mortgages, since the very object of giving such securities is to give a preference to the creditors therein designated. Hutchinson v. Watkins, 17 Ia. 475; Chase v. Walters, 28 Ia. 460; Stewart v. Bank, 76 Ia. 571.
The fact that the assignee or the preferred creditor of an insolvent debtor is a relative or intimate friend is doubtless calculated to excite suspicion, yet in reality there is nothing unnatural in a dealer or trader who is in need of credit or a loan of money to carry on his business first applying to his relatives for such loans, and if the evidence be undisputed that the money was advanced, the fact that the persons making the loan are relatives ought not to debar them from receiving security. Their rights are neither increased nor diminished by the fact of relationship. Magniac v. Thompson, 7 Pet. 348; Prewit v. Wilson, 103 U. S. 22; Estes v. Gunter, 122 U. S. 450; Bean v. Patterson, 122 U. S. 496; Garner v. Bank, 151 U. S. 420, 151 U. S. 432; Aulman v. Aulman, 71 Ia. 124; Van Patten v. Thompson (Iowa), 34 N.W. 763; In re Alexander, 37 Ia. 454; Doyle v. McGuire, 38 Ia. 410. A general assignment to a relative as trustee for the benefit of creditors is open to more suspicion, since such are more often selected as instruments for creating a secret trust in favor of the assignor.
sued by a third party for 200 pounds. Pending such suit, he conveyed all his property to Twyne in consideration of his debt, but continued in possession, sold certain sheep, and set his mark on others. It was resolved to be a fraudulent gift, though the deed declared that it was made bona fide. Most of the cases illustrative of this doctrine, however, have been like that of Twyne, wherein a debtor, knowing that an execution was to be taken out against him, had sold his property to a vendee having knowledge of the facts for the express purpose of avoiding a levy or receiving a consideration which could not be reached by execution. In such cases, the fact that he receives a good consideration will not validate the transaction, unless at least the creditor has obtained the benefit of the consideration. A like principle applies where a mortgage is given and withheld from record in order to give the mortgagor a fictitious credit. Cadogan v. Kennett, Cowp. 432; Blennerhassett v. Sherman, 105 U. S. 100, 105 U. S. 117; Sayre v. Fredericks, 16 N.J.Eq. 205; Sweet v. Wright, 57 Ia. 514; 1 Story's Eq.Juris. § 353; Klein v. Hoffheimer, 132 U. S. 367; Holt v. Creamer, 34 N.J.Eq. 181; Clements v. Moore, 6 Wall. 299; Wickham v. Miller, 12 Johns. 320; Pulliam v. Newberry, 41 Ala. 168; Robinson v. Holt, 39 N.H. 557.
In Twyne's Case, the facts that the sale was accompanied by a secret trust in favor of the debtor and that the vendor remained in possession showed that it was not intended as a bona fide preference to the creditor, but merely as a trick to keep the property away from the other creditors.
U.S. 436; Huntley v. Kingman & Co., 152 U. S. 527; Southern White Lead Co. v. Haas, 73 Ia. 399, and cases cited.
"The words of the statute 13 Eliz. do not apply to this case, for this warrant of attorney was given on a good consideration and the other words in the act, 'bona fide,' only apply to those cases where possession is not delivered, or where it is merely colorable."
See also Estwick v. Caillaud, 5 T.R. 420.
mortgagor. A prompt and vigorous enforcement of an honest debt is by no means indicative of fraud, and it does not lie in the mouth of the plaintiffs, who are themselves taking steps in the same direction as the mortgagees, to cavil at their success.
It is also true that by the law of Iowa respecting assignments for the benefit of creditors, preferences are forbidden; but the authorities in that state hold that a sale or mortgage to pay or secure the payment of preexisting bona fide debts is not to be considered an assignment within the statute, even when made in contemplation of insolvency, or when the debtor, by the mortgage, intends to hinder other creditors who are about to obtain liens upon his property, unless at least, the mortgage was intended to operate not as a security, but as a general assignment for the benefit of creditors or is made in such connection with a general assignment as to constitute both but one and the same transaction. Farwell v. Howard, 26 Ia. 381; Southern White Lead Co. v. Haas, 73 Ia. 399; Gage v. Parry, 69 Ia. 605; Kohn v. Clement, 58 Ia. 589; Aulman v. Aulman, 71 Ia. 124.
It is sometimes difficult to determine whether a particular instrument is a mortgage or an assignment with preferences. The test most frequently applied is whether the conveyance is of all the property of the debtor, and is made to a trustee for the benefit of certain creditors. In such cases, it is usually held to be an assignment, but if the conveyance be made directly to the creditor himself, it is ordinarily treated as a chattel mortgage. Jones on Chattel Mortgages § 352a; Burrill on Assignments, p. 11.
We do not regard the fact that the property conveyed was nominally more than double in value to the amount of debts secured thereby to be, in itself, indicative of fraud, since the property conveyed was a stock of goods of somewhat uncertain value, and when sold, realized but little more than was necessary to pay off the mortgages. Indeed, this Court held directly in Downs v. Kissam, 10 How. 102, 51 U. S. 108, that it was not even a badge of fraud that a mortgage was made to cover more property than would secure the debt due.
The fact that goods were spirited away from the store on Sunday night would undoubtedly assume a serious importance were it shown to have been done directly or indirectly for the benefit of Schwartz; but the goods seem to have been taken away in a sleigh by some of the clerks, who took this method of paying themselves for the amounts due them for wages, aggregating $282.77. It appears that they took no more than sufficient to reimburse themselves, and that they were charged upon the books with the goods taken at cost price. Although, of course, the proceeding was irregular, there is no evidence to connect either Schwartz or the mortgagees with it, and the clerks did no more for themselves than Schwartz would have been at liberty to do for them if he had been present, viz., to prefer them to the amount of the wages severally due them.
The case, then, reduces itself to the simple question whether the mortgages were given for bona fide existing debts to the amount expressed upon their faces, and this involves an inquiry into the consideration of each mortgage separately.
3. So far as regards the mortgage to John H. Hellman, which covered only the stock at Fort Madison and the book accounts, both the master to whom the case was referred and the court agreed in holding it to be valid. In this connection, the master found Schwartz to be indebted to Hellman, his wife's father, as evidence by his notes, for money borrowed, amounting, with interest, to $22,180.37; that Hellman, before leaving Galena, had prepared memoranda of these notes, which amounted, upon their face, to $20,380.98, together with another note for $1,000, payable to his son John V. Hellman, in consideration of money loaned to Schwartz. This note had been assigned by the payee to his wife Wenona, but, being afraid that Schwartz was in a bad way financially, it was agreed between the father and son that the former should purchase the note, which was then in his safe; that Wenona should endorse it; that the father should be charged with it on his books, and the son, who was then owing the father to that amount, or more, should be credited therewith. But the entry upon the books was not made until after John H. Hellman returned from Fort Madison, and was then entered as of December 29.
As the note really belonged to John H. Hellman, and was transferred to him before he left Galena, though the entry had not yet been made, there can be no just criticism upon his including it in his mortgage. Even if the purchase had not been made, there is nothing improbable in John V. Hellman desiring that his wife's note should be secured, and if he suspected, as he doubtless did, that Schwartz was likely to fail, he would naturally put the note in his father's hands to be secured with the much larger amount due this father, and if the latter caused it in good faith to be included in his mortgage, supposing it to be lawful to do so, the mortgage would not thereby be invalidated.
4. The mortgage to the German-American Bank, which covered not only the stock at Fort Madison but that at Chariton, and the book accounts at both places, was given on its face to secure two notes, of $5,000 and $500, made to the bank, as well as a note for $1,500 made to H. Cattermole, president of the bank, and assigned to the bank, together with a note of $1,000 to Pauline Schwartz, also assigned to the bank, these notes aggregating $8,000. This mortgage was found by the master to be fraudulent as against the general creditors by reason of the inclusion of the Cattermole and Schwartz notes.
the note at the time the mortgage was given. The Cattermole note had been given by Schwartz for money loaned, and had been in possession of the bank for two and a half months before the failure. The money had been loaned to Schwartz under a promise by him to give a real estate mortgage, and McConn, who was a cousin of Cattermole, upon the failure of Schwartz to give the mortgage, had agreed to take the note off of his hands.
The note of $1,000 to Pauline Schwartz was sold and delivered by John H. Schwartz to McConn for about two-thirds its face value and interest. It seems that the money represented by this note had been sent, in 1879, in the form of a draft, by Hellman to his daughter Pauline, who was the wife of John H. Schwartz, as a Christmas present. Schwartz appears to have used the money himself and given his note therefor dated December 27, 1879. When the mortgage was given, he turned it over to the bank for its face value, upon his wife's request that he should realize upon it for her. No entry was made upon the books of the bank because, as McConn explained, "it was a small matter, and we thought it would be adjusted in a few days, and we did not want any more of John H. Schwartz's matters mixed up." The money to pay for the note was taken from an envelope in the bank by McConn. This was undoubtedly outside of the usual course of banking business, and was open to some suspicion, but there is nothing to impeach the consideration for which the note is said to have been given, and nothing but the somewhat unusual nature of the transaction to contradict McConn's story with reference to this purchase by the bank.
v. Scott, 55 Ia. 114; Lombard v. Dows, 66 Ia. 243; Taylor v. Wendling, 66 Ia. 562; McNichols v. Rubelman, 13 Mo.App. 515; Holt v. Creamer, 34 N.J.Eq. 181; Heintze v. Bentley, 34 N.J.Eq. 562; Mead v. Combs, 19 N.J.Eq. 112), it will only have this effect when given willfully, in connivance with the mortgagee, and with an actual design to impose upon and defraud the general creditors.
In all such cases, the question of good faith is one of fact, and a mere error of judgment will not be imputed as a fraud. The fact that the debt so included was a bona fide debt, and that the act of the mortgagee in so including it was subsequently affirmed by the creditors interested, will be strong evidence that no actual fraud was intended. Shirras v. Caig, 7 Cranch 34; Lombard v. Dows, 66 Ia. 243; Davenport v. Cummings, 45 Ia. 219; Miller v. Lockwood, 32 N.Y. 293; Frost v. Warren, 42 N.Y. 204; Goff v. Rogers, 71 Ind. 461; Barkow v. Sanger, 47 Wis. 505; Van Patten v. Thompson (Iowa), 34 N.W. 763.
parties swore that it was due to her as the nominal proprietor of the store. It does, however, appear conclusively that Joseph was indebted to his mother in a sum largely in excess of the account; that the consideration of the account was goods bought, nominally at least, of Catharine, and that she was responsible to the creditors of that establishment. As the accounts were kept in her name, she had the legal title to the account, and Joseph only an equity in them. But as, in any event, the debt was bona fide, and under the circumstances must be presumed to have been included in the mortgage with the consent of Joseph, the mortgage ought not to be held void on that account. It was a debt honestly owing by John H. Schwartz, was intended to be included in his mortgage, and he had as much right to secure his brother Joseph as his mother, Catharine. His creditors were not placed in any worse position by reason of the fact that he security was not given directly to Joseph. The form in which the security should be given was really a question between the parties themselves, and did not in any way concern the plaintiffs. So, also it is quite immaterial whether the Katie Kraft note was originally made to her, or to her husband Joseph and by him endorsed to her. There is very little, if anything, to indicate that it did not represent a bona fide debt, or that Catharine Schwartz, the mortgagee, was not held for its payment. In addition to this, however, Mrs. Kraft herself filed an intervening petition, claiming the amount of the note and the benefit of the mortgage to Catharine Schwartz, and a separate decree was made in her favor.
6. The mortgage to Frank B. Kent covered the property both at Fort Madison and Chariton, and was given to secure the payment of a note for $2,500 executed by Schwartz, March 1, 1884, and payable one year after date. His decree was for $3,601.42.
to this Court. We think this motion should be granted. It is true the four mortgagees were made joint defendants to the bill, but in reality their interests were several. The mortgages were separate, and a several and distinct decree was made in favor of each for the payment of his claim. A separate bill would have lain again each mortgagee, but as certain of the questions involved were common to all mortgages, they were as matter of convenience all made parties to the same bill. The rulings of this Court are uniform and consistent to the effect that where several plaintiffs claim under the same title and the determination of the cause necessarily involves the validity of that title, this Court has jurisdiction though the individual claims do none of them exceed the requisite amount; but when the matters in dispute are separate and distinct, and are joined in one suit for convenience or economy, the case will be dismissed as to claims not exceeding $5,000. Schwed v. Smith, 106 U. S. 188; Hawley v. Fairbanks, 108 U. S. 543; Stewart v. Dunham, 115 U. S. 61; Estes v. Gunter, 121 U. S. 183; Gibson v. Shufeldt, 122 U. S. 27; Henderson v. Carbondale Coal &c. Co., 140 U. S. 25; New Orleans Pacific Railway v. Parker, 143 U. S. 42; Chapman v. Handley, 151 U. S. 443.
The appeal as to Kent must be dismissed, and as to the others the decree of the circuit court must be affirmed.


text:
The Supreme Court of the State of Missouri, on appeal, dismissed a petition which sought to have the title to lands held by the defendant, under a patent from the United States, divested, and vested in the complainant. From this decree of dismissal a writ of error brought up the case under the twenty-fifth section of the Judiciary Act, the complainant claiming the land under a former patent from the United States.
This Court determined that the legal title to the premises was in the complainant under the second patent, reversed the decree, and remanded the cause "for further proceedings in conformity to the opinion of the court" ( 75 U. S. 8 Wall. 672). The opinion given declared also that on the merits (which were gone into, and in which utterance was given as to every point which it was necessary to decide in order to dispose of the case on them), the case was with the plaintiff or complainant.
On the presentation of the mandate to the supreme court of the state, they directed it to be filed, and entered up an order reversing their former decree, and the cause again coming up to be disposed of, the court decided that the legal title to the premises was vested by the second patent in the complainant, as declared by this Court, and that on such a title under the laws and practice of the state there was a plain and adequate remedy at law, and that equity bad no jurisdiction of the case made by the petition, and therefore decreed dismissing the petition.
That the legal sufficiency of the ground maintained by the supreme court of the state for its decree, to-wit that by the laws and practice of the state the complainant's remedy on a legal title was at law, and not in equity, is a question within the jurisdiction of this Court, and revisable under the twenty-fifth section on a second writ of error.
"perhaps before this Court on the first writ of error; but it is too late to raise such questions after the whole case had been decided, and the cause remanded for final judgment."
That under the Judiciary Act, as well as under that of the 5th February, 1867, amendatory of it, on a second writ of error to a state court, this Court "may proceed to a final judgment and award execution."
A decree was therefore entered up reversing the decree of the state court and declaring the title to the lands in controversy to be vested in the complainant and ordering a writ of possession to be issued by the clerk of this Court directed to the marshal thereof.
"That the right of trial by jury shall remain inviolate."
the prevention of private wrongs, which shall be denominated a civil action. [Footnote 1]"
"Suits may be instituted in courts of record by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and remedy sought"
"The first pleading on the part of the plaintiff is the petition, which shall contain (1) The title of the cause, specifying the name of the court and county in which the action is brought, and names of parties to the action, plaintiffs and defendants; (2) a plain, concise statement of the facts constituting a cause of action, without unnecessary repetition; (3) A demand of the relief to which a plaintiff may suppose himself entitled. [Footnote 3]"
"The only pleading on the part of the defendant is either a demurrer or an answer. [Footnote 4]"
"SECTION 6. The defendant may demur to the petition when it shall appear upon the face thereof either (1) that the court has no jurisdiction of the person of the defendant or the subject of the action or (2) that the plaintiff has no legal capacity to sue, or"
"SECTION 10. When any of the matters enumerated in section six (the last quoted section) do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action. [Footnote 5]"
survey for Labaume's representatives, so procured by fraud, covin, and misrepresentation, conflicted with the patent and survey for Brazeau's representatives, and constituted a cloud upon the plaintiff's title.
1. That the court would divest out of the defendants all right, title, and interest acquired or claimed by them and each of them under Labaume.
2. And would vest the same in the plaintiff.
3. And would put the plaintiff in possession.
4. And would cause an account to be taken of the rents and profits of the land, and give to the plaintiff judgment therefor.
5. And would give to him "such other relief as might be proper in the case."
The patent to Labaume's representatives granted all the land in its exterior limits, "saving and reserving any valid adverse right that might exist to any part thereof."
The patent to Brazeau's representatives granted all the land included in its exterior limits, "saving and reserving any valid adverse right which might exist to any part thereof."
1. That the 4 x 4 arpents confirmed to Brazeau were not properly located by the United States survey thereof inside of Labaume's survey.
2. That the confirmation to Brazeau was void.
3. That the survey for Brazeau's representatives was void for want of legal authority in the officers to make it.
4. That the patent to them was void for the same reason.
5. That the plaintiff, claiming under the confirmation and survey for Brazeau's representatives, was estopped to locate the land inside the Labaume patent, by matter in pais, long before their date.
6. That the survey and patent for Labaume's representatives vested a title in them in fee simple.
7. That the defendants had no notice of Brazeau's claim, and were innocent purchasers of the Labaume title.
8. That the plaintiff, claiming under Brazeau, was barred by the statute of limitations.
The defendants denied that any part of the 4 x 4 of Brazeau was inside the Labaume patent; that the patent or survey for Labaume's representatives was procured by fraud, covin, or misrepresentation; that the plaintiff had the Brazeau title to the 4 x 4.
They set forth a former suit and judgment against the plaintiff prior in date to the plaintiff's survey and patent, in bar of this suit.
And finally denied every averment in the plaintiff's petition in conflict with any part of their answer.
And "so having fully answered, the defendants asked for judgment and their costs."
"having been submitted to the court for a decision on the plaintiff's petition, and the answers of all the defendants and the exhibits and other evidence in the cause,"
the court found "all the issues in the cause for the plaintiff;" that the survey for Labaume in 1799 was made to include the Brazeau's land by mistake or design; that the land was situated inside of the Labaume survey and patent; and that the Labaume survey and patent were issued and procured by fraud and misrepresentation, and in combination and confederacy by the defendants to keep the plaintiff out of possession of his property, and its rents and profits.
"The 4 x 4 arpents is hereby decreed to the plaintiff, and all the right, title, and interest of each and everyone of said defendants in and to said tract of land is hereby divested out of said defendants, and each of them, and is vested in and passed to plaintiff, to have and to hold to said plaintiff, his heirs, and assigns,"
and profits accrued during the respective possessions, and for as much as the court is not advised what is the amount and other particulars thereof, Alexander Martin is appointed commissioner to take an account,"
"that the legal title to the tract of 4 x 4 arpents remained in the United States till June 10, 1862, and that on that day, by virtue of a survey referred to and a patent of that date, Brazeau 'acquired the legal title to the tract.'"
The opinion went, however, largely besides into the merits of the case, any gave utterance upon every question at issue between the parties which it was necessary to decide to dispose of the case on their merits. These it declared were entirely with the plaintiff or complainant, who, it said, was justly and honestly owner of the land, and ended with an order of reversal of the decree of the Supreme Court of Missouri, "with directions to affirm the decree of the St. Louis court of common pleas."
of the Supreme Court of Missouri had been silent as to the grounds on which it dismissed the plaintiff's petition; that while if that court passed merely on the title derived from the United States (as in view of this Court's taking jurisdiction of the case was now to be assumed), this Court, under the twenty-fifth section, had authority to review and reverse it, yet that under no circumstances had this Court authority to pass on those defenses set forth in the record which were of a local nature only, and that no opinion of the judges of this Court, separately or collectively, bound by authority the state court of Missouri on those points, or could deprive the defendants in error of the right to have that court pass upon them. Any mandate, therefore (the learned counsel argued), directing the Supreme Court of Missouri "to affirm the decree of the St. Louis court of common pleas" would be a judgment by this Court upon questions upon which it had no authority to pass.
MR. JUSTICE CLIFFORD, delivering the opinion of the Court on this new matter of the propriety of the form of order, as he had delivered that on the principal case, stated that the Court, in the opinion delivered in that principal case, had "decided the following propositions," reciting numerous propositions pertinent to the merits, and reciting also, specifically, the decision as to the legal title's being in Brazeau. "Based upon these conclusions of law," the learned judge said, "the Court gave the directions recited in the order" objected to; but now, after the argument upon the question of its propriety had "come to the conclusion that a different direction would be more in accordance with the usual practice of the court."
here recited and refers to the opinion of the Court delivered at the time the decree was entered as to the ground on which these conclusions rest."
The matter accordingly went back to the Supreme Court of Missouri on this mandate, upon which, as well as on the pleadings and proofs of record in the cause, it came on to be heard. Counsel for the defendant insisted that the Supreme Court of the United States having decided that the legal title was in the plaintiff, his only remedy was at law; that the whole scope and very prayer of the petition filed in the case was for equitable relief, and that the petition should therefore be dismissed.
Counsel of the plaintiff answered that the code of practice adopted by the State of Missouri would not countenance such an objection; that under it, there was no "bill in equity or other formal pleading;" that "justice was now administered without forms;" that the defendants having denied the plaintiff's right and submitted themselves to the judgment of the court, waived the plea of "remedy at law," even supposing the forms of equity pleading still to prevail in Missouri; that as the twenty-fifth section of the Judiciary Act gave the Supreme Court at Washington jurisdiction to pass on the questions involved in the construction of acts of Congress, that court had implied authority to pass also upon all incidental questions which were necessary to be determined in order to render a judgment in the case; that the said Supreme Court had done so, as would be seen by the report of the case in 8th Wallace, and that this concluded the Supreme Court of Missouri.
"The only question which it was competent for the Supreme Court of the United States to notice when the cause was removed there was the question of title arising out of the respective confirmations under which the parties claimed. Everything else set up in the bill was peculiarly and exclusively of local state jurisdiction, over which the national tribunal had no control and concerning which an adjudication here is final."
"In conformity with the decision of the national court, the legal title is vested in the plaintiff, and his remedy is the next question to be considered."
"That ejectment is the proper and appropriate remedy, where a party has the title, to recover possession of real estate is a principle too well established to require argument or the citation of authorities. A bill in equity is not the proper remedy to recover the possession of lands, and where there is an adequate and complete remedy at law, a court of equity will not interpose unless upon some matters coming under some peculiar head of concurrent equity jurisdiction. [Footnote 11]"
count must be tried by itself, according to the prescribed mode in such actions and suits. In an action at law, there is a constitutional right of trial by jury, which has no existence in equity. The courts in New York have held that an equitable cause of action to remove -- as a cloud upon the plaintiff's title -- a deed given by mistake by a third party to the defendants, under which, having fraudulently obtained possession by connivance with the plaintiff's tenant, he claims to hold as owner, and a claim to recover the possession of the premises, may be united in the same action and asserted in the same complaint. But it is also clearly held that where legal and equitable causes of action are united under the code, as to the former, on the trial of the causes, the issues must be submitted to a jury. [Footnote 12]"
"It has often been held in this court that in a bill to set aside a deed as fraudulent, the plaintiff cannot sue for the recovery of the possession of the land, and that proceedings instituted for the purpose of vacating title, vesting it in the plaintiff, and to eject a defendant and obtain possession, are fatally erroneous on writ of error or appeal, and cannot be sustained. When the decree is entered establishing the plaintiff's title, he must then pursue his remedy in ejectment for the possession. The defendant has a right to demand this. He has a right to have a jury pass upon the question of rents and profits, and upon other questions which may arise in that form of action."
"In like manner it has been held that a cause of action in ejectment cannot be united with a cause of action for partition of the premises sued for. [Footnote 13]"
"It is a grave error -- an entirely mistaken notion -- to suppose that all distinction between law and equity is abolished by our code of procedure. The line of demarcation -- the great and essential principles which underlie the respective systems -- is inherent, and exists in the very nature of things. Although legal and equitable cases are to a certain degree blended as to form, the principles remain the same, and the court will not interfere and exert its equity powers in a strictly legal action."
has been the uniform course of practice ever since the adoption of our new system. In all the states where the code has been instituted, the ruling has been harmonious in the same way. The statute enacts that"
"There shall be in this state but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a 'civil action.'"
"In providing that there shall be but one form of civil action, the legislature cannot be supposed to have intended, at one stroke or sweeping enactment, to abolish the well recognized and long established distinction between law and equity. Such a construction would lead to perplexities and difficulties infinite and endless in their character. The innovation extends only to the form of action in the pleadings. While the difference in form and the technicalities in pleadings have been dispensed with, and the party need only state his cause of action in ordinary and concise language, whether it be under assumpsit, trover, trespass, or ejectment, without regard to the ancient forms, still the distinction between these actions has not been destroyed, but remains the same. So cases legal and equitable have not been consolidated, although there is no difference between the form of the bill in chancery and the common law declaration under our system, where all relief is sought in the same way from the same tribunal. The distinction between law and equity is as naked and as broad as ever. To entitle the plaintiff to an equitable interposition of the court, he must show a proper case for the interference of a court of chancery, and one in which he has no adequate or complete relief at law. The judgment vesting him with the legal title shows that he has a complete, appropriate, and ample remedy at law by ejectment. These plain principles were entirely overlooked at the trial in the court of common pleas, but, as before remarked, according to the decision of the majority of the court, the case was instituted and tried upon a misapprehension."
"It results that so much of the motion as asks for an affirmance of the judgment of the court of common pleas will be overruled and, in accordance with the mandate, the judgment of this court will be reversed and the petition dismissed."
"1. In conformity to the said mandate the judgment and decree of this Court therein mentioned is hereby reversed, and thereupon this cause remains to be proceeded with in conformity to the opinion of the Supreme Court of the United States and the laws of the State of Missouri."
"2. This court doth find, and adjudge, and decree, that under and in conformity with the laws of the State of Missouri, the said petition of the said Magwire is a proceeding to obtain equitable relief only in respect to the lands in said petition mentioned, and that no right or title to any equitable relief touching the said lands, or any part thereof, is shown by the said petition and the proofs adduced in support thereof."
"3. The court doth find, adjudge, and decree, that in conformity with the laws of the State of Missouri the legal title to said land cannot be tried and adjudged or determined under said petition, and the proceedings thereunder, there being a plain, adequate, and complete remedy by an action of ejectment in conformity with the laws of the State of Missouri in that behalf, and no relief in the proceedings in equity pending before this Court."
"4. The court doth find, adjudge, and decree, that in conformity with the laws of the State of Missouri, the petition of said Magwire is a proceeding for equitable relief only for the purpose of vesting the legal title by decree in said Magwire to the lands therein mentioned. The legal title to which was admitted by plaintiff in his petition to be held by defendants, and the only judgment that, under the laws of the State of Missouri, can be entered therein, if supported by the proofs in the cause, would be a decree vesting the title to said lands in said Magwire, and under said laws the right to recover in that suit the possession of the lands therein described could not be tried, adjudged, or determined under the said petition and the proceedings thereunder."
to be then in defendant), in said plaintiff, Magwire, and in conformity with said laws the right to recover in said suit the rents, issues, and profits of said lands, cannot be tried, adjudged, or determined, under the said petition and the proceedings thereunder."
"6. It is therefore considered by the court, and the court doth order, adjudge, and decree that the said"
"PETITION BE DISMISSED WITH COSTS."
From this decree Tyler now in turn appealed, and the case was here for the third time, having been already twice before the common pleas of Missouri and twice before the supreme court of that state.
"was drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision was against their validity; or was drawn in question, the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their validity; or was drawn in question, the construction of a clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision was against the title, right, privilege, or exemption, especially set up or claimed under said clause of the Constitution, treaty, statute, or commission. "
state, and to reverse or affirm the same upon a writ of error, was conferred upon the Supreme Court by the twenty-fifth section of the Judiciary Act, and the same section provides that the writ of error shall have the same effect as if the judgment or decree had been rendered or passed in the circuit court, and that the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, may, at their discretion, if the cause shall have been once before remanded, proceed to a final decision of the same and award execution. [Footnote 14] Where the reversal is in favor of the original plaintiff, and the damages to be assessed or matters to be decreed are uncertain, the Supreme Court will remand the cause for a final decision unless the same shall have been once before remanded, in which case the Court may, at their discretion, proceed to a final decision of the cause. Execution in that event may be awarded here, but the Court, in all other appellate cases, will send a special mandate to the subordinate court for all further necessary proceedings.
Both parties in this case claim under the same concession, which was issued by the governor to Joseph Brazeau. On the 1st of June, 1794, he presented his petition to the governor, asking for a tract of land situate in the western part of the Town of St. Louis, beyond the foot of the mound called La Grange de Terre, of four arpents in width, to extend from the bank of the Mississippi in the west quarter, southwest, by about twenty arpents in depth, beginning at the foot of the hill on which stands the mound and ascending in a northwest course to the environs of Rocky Branch, so that the tract shall be bounded on the east side by the bank of the river and on the other sides in part by the public domain, and in part by the lands reunited to that domain.
and that he should put the interested party in possession of the described premises. Pursuant to those directions, the surveyor made the requisite survey, but he included the whole of the former concession in the certificate, overlooking the undisputed fact that the grantor of the deed reserved to himself 4 x 4 arpents of the same, "to be taken at the foot of the hillock in the southern part of said land," which shows the origin of this long-protracted controversy. Special consideration was given to that survey in the first opinion delivered in this case, in which the court decided that such a survey, however the error may have arisen, cannot have the effect to enlarge the rights of the purchaser or to diminish or impair the rights of the donee of the concession, to the 4 x 4 arpents reserved in the said deed, and which were never conveyed to the grantee of the residue of the tract.
Mississippi River; thence down and along the right bank of said river, to the beginning corner."
the case. Service was made and the defendants appeared and filed an answer, denying pretty nearly every material allegation of the petition. They admitted, however, that the governor made the concession of the 4 x 20 arpents to Joseph Brazeau, and they set up as the source of their title the deed of the 4 x 16 arpents, deducting the reservation from the original donee to the other claimant.
or his legal representatives, under which the plaintiff now claims. None of the proceedings is referred to with any other view than to enable the parties to understand the propositions of law and fact which were decided by the Court in the former opinion, as it is not proposed to reexamine any of those questions.
Having overruled all of those special defenses, the Court proceeded to say in the first opinion that the incomplete title to the tract remained unextinguished in the original donee or his assigns throughout the whole period of the litigation; that he never sold the 4 x 4 arpents to the other claimant, nor did he ever request that it should be surveyed or located in any other place than the one where it was, by the first survey, ascertained to be; that the other claimant never had any concession of the tract, that he never purchased it and never had any title of any kind to any part of the concession, except the sixteen arpents as described in his deed from the rightful owner of the residue of the tract.
bounded justly and honestly belongs to the plaintiff," as alleged in the petition.
Removed here, as the cause then was, by writ of error to the supreme court of the state, it becomes necessary to advert briefly to the proceedings in the state courts.
"The court finds that, out of the claim presented to the board of commissioners by Labeaume, the tract of 4 x 4 arpents claimed by the plaintiffs was confirmed to Joseph Brazeau, or his legal representatives, and that the court also found the issues in this cause in favor of the plaintiff, and therefore it was ordered, adjudged, and decreed that the tract of land, meted and bounded as follows,"
survey No. 3343, approved May 8, 1862, and patented to Joseph Brazeau or his legal representative, the 10th of June in the same year."
Rents and profits were also decreed to the plaintiff, and the cause was sent to a master to report the amount. Two motions for new trial were filed by the defendants, but they were both denied and the court, having amended and confirmed the report of the master, entered a final decree for the plaintiff, and the defendants having filed a bill of exceptions, as before explained, appealed to the supreme court of the state. Hearing was had in the supreme court upon the exhibits, proofs, evidence, and testimony set forth in the bills of exceptions, and the supreme court reversed the decree of the court of common pleas and dismissed the petition. Whereupon the plaintiff sued out a writ of error and removed the cause into this Court, and this Court reversed the decree of the supreme court of the state, and by the order, as amended, remanded the cause for further proceedings in conformity to the opinion of the Court. [Footnote 22] Pursuant to the mandate of this Court remanding the cause, the supreme court of the state reversed their former decree reversing the judgment and decree of the court of common pleas and dismissing the petition, but they did not proceed and dispose of the case in conformity to the opinion of this Court, as directed in the mandate.
as a repeal of the Constitution and the laws of Congress passed to carry the judicial power conferred by the Constitution into effect.
of error, and removed the cause a second time into this Court.
Different theories are put forth as to the ground assumed by the supreme court of the state in refusing to proceed with the case as directed in the mandate, and in entering the decree dismissing the petition, but the explanations given in the order of the court show that the court decided that the petition was a proceeding to obtain equitable relief in respect to the lands therein described, and that the legal title to the premises cannot be tried and adjudged under such a petition, and that inasmuch as the plaintiff had a plain, adequate, and complete remedy at law, the suit could not be maintained.
Presented as the proposition was as a reason for not executing the mandate of this Court, the question as to its sufficiency is one which must necessarily be determined by this Court, else the jurisdiction of the court will always be dependent upon the decision of the state court, which cannot be admitted in any case.
"there shall be in this state but one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action. [Footnote 28]"
(1) The title of the cause, specifying the name of the court and county in which the action is brought, and the names of the parties to the action.
(2) A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.
(1) That the court has no jurisdiction of the person of the defendant or the subject matter of the action.
(2) That the plaintiff has not legal capacity to sue.
(3) That there is another action pending between the same parties for the same cause of action in the state.
(4) That there is a defect of parties plaintiff or defendant.
(5) That several causes of action have been improperly united.
(6) That the petition does not state facts sufficient to constitute a cause of action.
No other grounds of demurrer are allowed by the statutory rules of pleading. Those rules demand only a cause of action, but it need not be designated as legal or equitable, as a demurrer for want of form is not allowed; nor is the jurisdiction of the court in any way affected by forms.
Such objections as those enumerated in the sixth section, if they do not appear on the face of the petition, may be taken by answer, and the tenth section expressly enacts that "if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same," excepting only the objection to the jurisdiction of the court over the subject matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action.
objection is not a valid one under the statutory rules of pleading prescribed in that state.
Suppose the general rule, however, to be otherwise, still the Court is of the opinion that the objection, even if it had been made earlier, could not avail the defendants, as they did not make it by demurrer or in the answer, as the express provision of the statute is that unless it is made by demurrer or answer, "the defendant shall be deemed to have waived the same."
Justice requires that that rule shall be applied in this case, as the case has been pending more than ten years, having been twice heard in the common pleas, once in the supreme court of the state, twice before the present hearing, including the hearing on the motion, in this Court, and a second time in the supreme court of the state, and is now here on a second writ of error after this Court has decided that the plaintiff has a complete, perfect, and unqualified right under the patent granted to the original donee or his legal representatives.
the saving clause in the patent reserved any valid adverse right which may exist to any part of the tract; that the patent granted to Joseph Brazeau at the same time never became operative, as he refused to accept the same, and returned it to the land department; that the subsequent action of the Secretary of the Interior in cancelling the same, and in ordering a new survey, was authorized by law; that Joseph Brazeau, by virtue of that survey, and the patent granted to him June 10, 1862 acquired the legal title to the tract of 4 x 4 arpents, notwithstanding the saving clause in the patent, as he was the rightful owner of the incomplete title to the same, as acquired by the concession granted under the former sovereign. Directed, as the court below was, to proceed in conformity to the opinion of the court, it is quite clear that it was their duty to reverse their judgment and to grant to the plaintiff the relief prayed in his petition -- that is, to enter a decree divesting out of the defendants all the right, title, and interest acquired or claimed by them and each of them form the other claimant or anyone claiming under him, and invest the same in the plaintiff, and to put him in possession of the premises.
as the decree in Gibbons v. Ogden, [Footnote 43] was also entered in this Court.
It follows that that part of the decree of the supreme court of the state dismissing the petition must be reversed, with costs, and that a decree be entered in this Court for the plaintiff, that the tract of 4 x 4 arpents claimed by the plaintiff was confirmed by the commissioners to Joseph Brazeau, and that the final survey, and the patent of June 10, 1862, issued to him or his legal representatives, gave him a complete title to the tract, and that the same tract, as meted and bounded in the petition, be decreed to the plaintiff, and that all the right, title, and interest of each and everyone of said defendants in and to said tract of land be divested out of said defendants and be vested in and passed to the plaintiff, to have and to hold to the said plaintiff, his heirs and assigns, forever.
when it becomes absolutely necessary to prevent injustice. Evidently such a claim must depend very largely upon the statutory provisions of the state, and to those the court has not been referred. Unless the statutes present some insuperable difficulties in the way of such a recovery, no doubt is entertained that the plaintiff will be entitled to enforce that claim in such form of remedy as is allowed by the local law. Whoever takes and holds possession of land to which another has a better title is in general liable to the true owner for all the rents and profits which he has received, whether the owner recover the possession of the premises in an action at law or in a suit in equity. [Footnote 44] Depending, as such a claim necessarily must, very much upon the statutes of the state, the Court, on the authority of the case of Miles v. Caldwell [Footnote 45] as well as for the other reasons suggested, deems it proper to leave the party to prosecute the claim as he may be advised in the tribunals of original jurisdiction as better suited to investigate and adjudicate such a claim than a court of errors. Besides the relief already described, the decree will also direct that the plaintiff be put in possession of the premises, and for that purpose he will be entitled to a writ of possession to be issued by the clerk of this Court.
of the supreme court of the state as dismissed the petition of the plaintiff be, and the same is hereby, reversed with costs. And it is further ordered, adjudged, and decreed, that the tract of 4 x 4 arpents claimed by the plaintiff was confirmed by the board of commissioners to Joseph Brazeau or his legal representatives, and that the said tract of land as meted and bounded, justly and equitably belongs to the plaintiff, as alleged in his petition, and as shown by the survey of the 8th of May, 1862, and by the patent of the 10th of June following, duly executed and signed by the President.
Wherefore this Court proceeding to render such decree in the case as the supreme court of the state should have rendered, it is ORDERED, ADJUDGED, AND DECREED that the said tract of land, being the said 4 x 4 arpents claimed by the plaintiff, and meted and bounded as follows, viz.: beginning at a point on the right bank of the Mississippi River, the northeast corner of survey No. 3342, in the name of Esther, a free mulatress, or her legal representatives, and the southeast, corner of Louis Labeaume's survey, No. 3333; thence south 74 degrees 30 minutes west, with the southern boundary of said Labeaume's survey, and the northern boundary of the said Esther survey, to the northwest corner of the said Esther survey; thence north 23 degrees west, 776 feet 8 inches, to a stone; thence north 74 degrees 30 minutes east, 776 feet 8 inches, to a point on the right bank of the Mississippi River; thence down and along the right bank of said river to the beginning; be and the same is hereby decreed to the plaintiff, and all the right, title, and interest of each and everyone of said defendants, in and to said tract of land, is hereby divested out of said defendants, and each of them, and that the same is vested in and by virtue of the patent passed to the plaintiff; to have and to hold to the said plaintiff, his heirs and assigns, the said tract of land so passed to him and his heirs and assigns forever, being the same which is covered by the survey No. 3343, approved May 8, 1862, and patented to Joseph Brazeau 10 June in the same year, as appears by the record.
AND IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the plaintiff recover the possession of the said tract of land as herein meted and bounded, and that a writ of possession issued for that purpose in the usual form, directed to the marshal of this Court, duly executed by the clerk, and under the seal of this Court.
MR. JUSTICE SWAYNE, MR. JUSTICE STRONG, and MR. JUSTICE BRADLEY, dissented.
MR. JUSTICE HUNT did not hear the argument, and took no part in the judgment.
1. Revised Statutes of Missouri 1216.
"in the nature of a bill of equity, seeking to divest out of the defendants the title held by them, and to vest the same in the plaintiff, and to put him in possession"
"The answer denies the equities . . . pleads in bar a final decree in chancery, in a former suit, between the same parties, and insists that the suit is barred by the great lapse of time."
The court then enters into a comparison of title under the patents to the respective parties, and considers the equities lying behind the patents.
"Courts of equity in this state exercise jurisdiction according to the principles of equity jurisprudence, excepting only as the same may have been modified by some special statute. . . . There is really no case made on the record which can entitle the plaintiff to relief under any head of equity jurisprudence."
The court then sustains the plea of res judicata, saying that "the former decree in chancery between these parties proceeded upon the same substantial facts and grounds of equity that are here alleged again."
"The great lapse of time and the statute of limitations have been urged on our consideration. On this it will be enough to say that the defense resting upon a Spanish possession, under a concession and recorded survey, and continued to the present time under an absolute title from the United States, dated from the year 1806, needs no help, and could derive no additional strength from any statutes of limitations."
The judgment for these reasons was reversed and the petition dismissed.
See Magwire v. Tyler, 8 Wall. 650.
See Appendix, where the section is set forth.
Davis v. Packard, 8 Pet. 323; Mitchel v. United States, 15 Pet. 84.
47 Mo. 125, October Term 1870.
Janney v. Spedden, 38 Mo. 395.
Bradley v. Aldrich, 40 N.Y. 510; Lattin v. McCarty, 41 id. 107.
See Peyton v. Rose, 41 Mo. 257; Curd v. Lackland, 43 id. 139; Young v. Coleman, ib., 179; Gray v. Payne, ib., 203; Wynn v. Cory, ib., 301; Jones v. Moore, 42 id. 413; Lambert v. Blumenthal, 26 id. 471; Gott v. Powell, 41 id. 416.
1 Stat. at Large 86.
8 Stat. at Large 202; United States v. Wiggins, 14 Pet. 350.
2 Stat. at Large 326.
Ib., 283, 327, 353, 391, 440.
Magwire v. Tyler, 8 Wall. 658-661.
United States v. King, 3 How. 786; Same v. Forbes, 15 Pet. 173; Landes v. Brant, 10 How. 370; West v. Cochran, 17 How. 414; Stanford v. Taylor, 18 How. 412; Bissell v. Penrose, 8 How. 334.
Neilson v. Lagow, 12 How. 110; Magwire v. Tyler, 40 Mo. 433; Magwire v. Tyler, 1 Black 199.
Magwire v. Tyler, 8 Wall. 650, 75 U. S. 672.
Washington Bridge Co. v. Stewart, 3 How. 424; Ex Parte Sibbald, 12 Pet. 492; Peck v. Sanderson, 18 How. 42; Leese v. Clark, 20 Cal. 417; Hudson v. Guestier, 7 Cranch 1; Browder v. McArthur, 7 Wheat. 58.
Skillern's Executors v. May's Executors, 6 Cranch 267; Livingston v. Story, 12 Pet. 339; Chaires v. United States, 3 How. 618; Whyto v. Gibbes, 20 How. 542; Sibbald v. United States, 2 How. 455.
Roberts v. Cooper, 20 How. 467.
Sizer v. Many, 16 How. 98; Corning v. Iron Co., 15 How. 466; Himely v. Rose, 5 Cranch 313; Martin v. Hunter, 1 Wheat. 355.
Hipp v. Babin, 19 How. 278; Parker v. Woollen Co., 2 Black 551. Noonan v. Bradley, 12 Wall. 129.
Scott v. Pilkington, 15 Abbott's Practice Reports 285.
Robinson v. Rice, 20 Mo. 236; Butterworth v. O'Brien, 24 Howard's Practice Reports 438.
Rankin v. Charless, 19 Mo. 493; Winterson v. Railroad Co., 2 Hilton 392; Patrick v. Abeles, 27 Mo. 185.
Marquat v. Marquat, 12 N.Y. 341.
Miltenberger v. Morrison, 39 Mo. 78; Meyers v. Field, 37 id. 434.
Underhill v. Van Courtlandt, 2 Johnson's Chancery 369; Livingston v. Livingston, 4 id. 290.
Grandin v. Le Roy, 2 Paige 509; Hawley v. Cramer, 4 Cowen 727; Ludlow v. Simond, 2 Caines' Cases 56; Le Roy v. Platt, 4 Paige 81; Davis v. Roberts, 1 Smedes & Marshall's Chancery 550; Osgood v. Brown, 1 Freeman's Chancery 400; May v. Goodwin, 27 Ga. 353; Burroughs v. McNeill, 2 Devereux & Battle's Equity 300; Rathbone v. Warren, 10 Johnson 595.
Martin v. Hunter, 1 Wheat. 354.
22 U. S. 9 Wheat. 239.
Green v. Biddle, 8 Wheat. 70; Chirac v. Reinicker, 11 Wheat. 296; Same Case, 2 Pet. 617.
69 U. S. 2 Wall. 44.

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