Breithaupt v. The Bank of Georgia. 1 P.

of the decree of the circuit court as dismissed the bill of the plaintiff generally; and that the said decree ought to be reversed, and the cause remanded to the circuit court, with directions to dismiss so much of the plaintiff's bill as prays relief on the ground of forfeiture, and to continue the injunction at the discretion of the court.

CHRISTIAN BREITHAUPT AND HENRY SHULTZ, Defendants below, v. THE BANK OF THE STATE OF GEORGIA, and others.

1 P. 238.

The circuit court has not jurisdiction of a case in which a corporation is defendant, if the record contains no averment concerning the citizenship of the corporators.

THIS was a bill in equity filed in the circuit court of the United States for the district of Georgia.

The plaintiffs were alleged to be citizens of South Carolina. The Bank of the State of Georgia was averred to be a body corporate, but where created, and of what State its corporators were citizens, did not appear on the record. The only question here was one of jurisdiction.

M' Duffie, for the plaintiffs.

Berrien and Wilde, contrà.

By the COURT. This is not a case within the jurisdiction [* 240 ] of the courts of the United States. The record does not show that the defendants were citizens of Georgia, nor are there any distinct allegations or averments that the same was the fact as to the stockholders in the bank.

This cause came on, &c., on consideration whereof this court is of opinion that, as the bill does not aver that the corporators of the Bank of the State of Georgia, which bank is defendant in the suit, are citizens of the State of Georgia, the circuit court has no jurisdiction of the cause, and can grant no relief. It is therefore ordered to be certified to the circuit court, as the opinion of this court, that, in the present state of the pleadings, it not appearing that the defendants are citizens of the State of Georgia, the complainants are not entitled to relief in that court.

16 H. 314.

Findlay v. Hinde. 1 P.

JAMES FINDLAY, WILLIAM LYTLE, CHARLES VATTIER, ROBERT RITCHIE, and others, Citizens of Ohio, Appellants, v. THOMAS S. HINDE, AND BELINDA, his wife, Citizens of Kentucky, Appellees.

1 P. 241.

Where the equity of a bill rests upon the loss of a deed, an affidavit of its loss should be annexed to the bill; but the want of it is only cause of demurrer, and is waived by answering. To a bill for specific performance of a contract to convey land, the vendor is a necessary party, though he has parted with all title, and his grantees are made parties.

If a vendor has conveyed, and the deed is not lost, but lacks some legal formality to pass the legal title, the vendee may have relief in equity, by a decree for specific performance, against the vendor, and those claiming under him with notice.

THE case is stated in the opinion of the court.

Webster and Caswell, for the appellants.

Doddridge and Jones, contrà.

[ *243] *TRIMBLE, J., delivered the opinion of the court.

This is a contest for lot number 86 in the city of Cincinnati. The appellees, who were complainants in the court below, claim the lot in right of the complainant, Belinda, as half-sister and heir at law of Thomas Doyle, jun., only son of Thomas Doyle, the elder.

In the year 1795, Abraham Garrison became the proprietor, and was seised in fee of the lot in controversy.

The bill charges that on the 10th of September, 1799, Abraham Garrison, being so seised, sold the lot to William and Michael Jones, brothers and partners in trade, for the price of $250, part of which being paid, the said Abraham Garrison gave a receipt for the same, binding himself to convey, which receipt is annexed and made part of the bill; that a few days after the said Abraham Garrison made a deed of conveyance, attested by two witnesses, to the Jones's, for the lot, which deed has been lost by time and accident; that on the 26th of March, 1800, William Jones, in behalf of the firm of William and Michael Jones, conveyed the lot to Thomas Doyle, jun.; and that, although the intention of that conveyance was to pass the title of both partners, and is in equity good for that purpose; yet as it did not pass the legal title of Michael Jones, he has since, in the year 1819, for the purpose of confirming the title of the complainants, made a deed of confirmation to the complainant, Thomas S. Hinde. Various other matters are stated in the bill, as strengthening and confirming the equitable right of the complainants, in right of the said Belinda, as heir at law of Thomas Doyle, jun.

Findlay v. Hinde. 1 P.

The bill charges that the defendants have fraudulently, and with notice of the claim of Thomas Doyle, jun., and of the complainants, subsequently obtained conveyances of the legal title from and under Abraham Garrison, and seeks discovery and relief.

The defendants, James Findlay, William Lytle, Charles Vattier, and Robert Ritchie, answered; and the bill was taken as confessed, against the other defendants, for want of answer.

The answer put in issue, generally, the allegations of the bill, and the title of the complainants; but it is not at present necessary to say whether they do or do not sufficiently deny notice.

It appears from the answers and title deeds filed in the cause that all the defendants, as well those who have not answered as those who have, are interested in defending the title of [244] the lot, they standing in relation to each other as vendors, warrantees, and vendees.

At the hearing of the cause in the circuit court, the defendants, Vattier and Ritchie, were decreed to convey to the complainants; and costs were decreed against all the defendants; and all of the defendants have joined in the appeal to this court.

The appellants contend that the decree is erroneous, upon several grounds, which have been very elaborately argued at the bar. Among these, two preliminary objections have been raised to the regularity of the proceedings and decree; and if either of them be sustained, it will be unnecessary to consider the more important objections made to the decree, upon the merits of the conflicting claims of the parties.

The first preliminary objection is, that no affidavit of the loss of the deed from Garrison to the Jones's, "by time and accident," as charged in the bill, was made and annexed to the bill.

In support of this objection the counsel for the appellants have cited numerous authorities to prove that when the loss of a deed or other instrument is made. the ground for coming into a court of equity for discovery and relief, an affidavit of its loss must be made and annexed to the bill, and that the absence of such affidavit is good cause of demurrer to the bill. But no case has been cited, and none is recollected, in which it has been decided that, although the party charged failed to demur for that cause, but answered over to the bill, or permitted it to be taken for confessed, by default against him, yet the absence of the affidavit is sufficient cause for a reversal of the decree.

If such a decided case were shown, we should exceedingly doubt its reason and authority.

The objection appears to us to be of that character which ought to be made at the earliest practicable stage of the cause; and if not

Findlay v. Hinde. 1 P.

then made should be considered as waived.

Upon the face of the bill there is an apparent jurisdiction, and the use of the affidavit is only to show, prima facie, the truth of the matter.

It is not like the cases in which there is an apparent want of equity on the face of the bills, admitting all the facts stated to be true; nor like the case in which it is apparent on the face of the bill that a court of equity could have no jurisdiction of the matters charged. In such cases, although a demurrer will be to the bill, yet none is necessary, inasmuch as there is either an absolute want of equity or of jurisdiction.

We think the supposed former existence and loss of the deed from Garrison to the Jones's was not the only ground for appeal[*245] ing* to a court of equity for relief. If the deed, as stated in the bill, were produced, it, in consequence of not being proved, or acknowledged and recorded, would be insufficient as a legal title against subsequent purchasers without notice. The complainants had a right to a discovery, upon the ground of notice, against the defendants; and if notice should be brought home to them, the complainants had a right to relief by a decree quieting the title, &c.

Again: if the complainants should fail, as we think they have failed, to prove by competent and satisfactory evidence the former existence, execution, and contents of a formal deed of conveyance, sufficient to pass the legal title, we perceive no reason why they might not rely upon the executory contract contained in the receipt; and in this latter view of the case the jurisdiction of the court of equity is unquestionable; and a general demurrer to the whole bill for want of an affidavit would not be sustainable. At most, a demurrer to only so much of the bill as stated and relied on the deed, could have been maintained for want of an affidavit of its loss.

The second preliminary objection to the proceedings and decree is the want of proper parties.

It has been argued for the appellants that Abraham Garrison was a necessary party; and that, as the complainants claim through him by an executory contract, he ought to have been before the court before any decree could be made against the defendants, who also claim through and under him by a subsequent conveyance of the legal title.

The counsel for the appellees endeavored to overcome this objection, by arguing that the deed from Garrison to the Jones's conveyed the title from him to them; that the contract was, therefore, not executory, but executed between Garrison and the Jones's; and further, if it were not so, that there was no necessity for bringing Garrison

Findlay v. Hinde. 1 P.

before the court, he having conveyed away the legal title to the appellants, and that, therefore, no decree could be made against him.

We have already said the evidence in the cause does not establish a formally executed conveyance from Garrison to the Jones's, sufficient to convey the legal title; and that the complainants are, therefore, driven to rest their case upon the executory contract contained in the receipt.

Under this aspect of the case, was it necessary to make Garrison a party to enable the court to pronounce a decree between the parties really before the court?

In the case of Symmes v. Guthrie, 9 C. 25, this court declared the general rule to be, that "regularly, the claimants who have an equitable title ought to make those whose title they assert, as well as the person for whom they claim a conveyance, [* 246 ] parties to the suit." "And that, for omitting to do so, an original bill may be dismissed."

In the case of Mallon and others, v. Hinde, 12 W. 193, 196, the complainants claimed a survey in the military district in Ohio, by virtue of certain executory contracts with Elias 'Langham, and the heirs of Sarah Beard, and sought, by their bill against Hinde, to obtain a conveyance from him of the legal title, which, it was alleged, he had fraudulently obtained, with notice of the complainants' prior equity. Langham and the heirs of Sarah Beard were not made defendants, and for that cause the decree was reversed. There is no distinction in principle between that case and this. In that case this court, in delivering its opinion, holds the following language: "For the appellees it is insisted the proper parties are not before the court, so as to enable the court to decree upon the merits of conflicting claims. And we are all of that opinion." "The complainants can derive no claim in equity to the survey, under or through Langham's executory contract with the Beards, unless these contracts be such as ought to be decreed against them specifically by a court of equity." "How can a court of equity decide that these contracts ought to be specifically decreed, without hearing the parties to them? Such a proceeding would be contrary to the rules which govern courts of equity, and against the principles of natural justice."

This reasoning applies with equal force to the case at bar. Here, however perfect all the other links may be in the chain of the complainant, Belinda's, equitable title to the lot in contest, she can have no claim to it in equity, but through and under the executory contract of Garrison with the Jones's. Garrison has a right to contest the equitable obligation of that contract. No decree can be made for the complainants without first deciding that the contract of Garrison