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consequence. Plaintiffs did not abandon their title by neglecting for 40 years to take possession or bring action. If there has not been a devolution of title by operation of an adverse possession, their title is perfect, and their right of recovery would not be affected by a theoretical abandonment predicated alone upon a neglect of their estate. Upon the same ground, it is hard to perceive how McCoy's title has been lost by mere neglect for a shorter period. Nothing but a subsequent possession adverse to McCoy for the statutory period will affect the title acquired by his own earlier possession adverse to the Wiggin title.
This brings us to the question as to whether the plaintiffs, or those under whom they claim, are within any exception to the statute we have been considering. Undoubtedly, Timothy Wiggin, the ancestor of plaintiffs, was within the saving clause of the statute. He never resided within the limits of the United States or the territories thereof.
By section 3451, Mill. & V. Code, it is provided as follows:
"3451. If the person entitled to commence an action is, at the time the cause of action accrued, either, (1) within the age of twenty-one years; or, (2) of unsound mind; or, (3) a married woman; or, (4) beyond the limits of the United States and the territories thereof; such person, or the representatives and privies, as the case may be, may commence the action after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceed three years, and in that case three years from the removal of such disability."
Thus, Timothy Wiggin might have sued at any time within three years after the "removal of his disability"; i. e. his coming within the "limits of the United States and the territories thereof." He died in London in 1856. The contention of defendants below was that McCoy's adverse possession began several years before his death, and that his heirs were obliged to sue, or be forever barred, within three years after the title came to them. Four of the heirs have remained continuously beyond the limits of the United States. Three other sets of heirs came to America about 1865. Now, it is evident that, unless the fact that the heirs of Timothy Wiggin were themselves beyond the seas when their intestate died operates to place them under the disability or saving provision of the statute, they were required to bring suit against McCoy within the limitation of the statute, or within three years after descent cast. This they did not do. If, therefore, McCoy's possession began within the lifetime of Timothy Wiggin, and was continuous for seven years, including three years after his death, then the necessary legal consequence was that plaintiffs' title was tolled, and McCoy acquired a good and indefeasible title as to all the land within his assurance of title.
Cumulative disabilities are not allowed under statutes saving a right of action for a definite period after removal of a disability existing when an adverse possession began. McDonald v. Johns, 4 Yerg. 257; Guion v. Anderson, 8 Humph. 326; Young v. Jones. 9 Humph. 551; Alvis v. Oglesby, 87 Tenn. 182, 10 S. W. 313. This principle has been widely applied: Lewis v. Marshall, 5 Pet. 470; Mercer's Lessee v. Seldon, 1 How. 37; Thorp v. Raymond, 16 How.
247; Hogan v. Kurtz, 94 U. S. 779; Floyd's Heirs v. Johnson, 2 Litt (Ky.) 114; Jackson v. Wheat, 18 Johns. 40; Parsons v. McCracken, 9 Leigh, 495.
That there shall be no accumulation of disabilities is distinctly provided by section 3453 of the Tennessee Code, which reads as follows:
"3453. No person can avail himself of a disability unless it existed when his right of action accrued; but when two or more disabilities then exist, the limitation does not attach until all are removed."
These principles have equal bearing upon the 2,000-acre tract held under grant to Jacob Hammon. There was evidence tending to show that Hammon began adverse possession several years before the death of plaintiffs' ancestor, and that this possession was continued for more than seven years, including a period of more than three years after his death. Appellees have insisted that Hammon's possession was not of such a character as to be the open and notorious possession necessary to start the statute. The evidence as to this is not of such a character as to enable us to say that the error of the circuit court in regard to the effect of adverse possession upon plaintiff's title was harmless. There was evidence of adverse possession, and defendants were entitled to a correct charge as to the effect of such possession if they found it to be open and notorious.
The appellants presented the questions of law we have discussed in four distinct requests for instruction. Each request was refused. The charge was for the most part in distinct antagonism to the doctrine embodied in these requests. For the error in the charge as to the necessity of a connection between McCoy's adverse possession and the subsequent possession adverse to McCoy, and for the error in refusing the charges requested by appellants, the judgment must be reversed, and a new trial awarded.
AMERICAN GRAPHOPHONE CO. v. EDISON PHONOGRAPH WORKS. (Circuit Court, D. New Jersey. June 24, 1895.)
A defendant in a suit in equity interposed a plea setting out certain agreements by which defendant alleged that it was licensed in perpetuity to make a patented machine. The complainant filed a replication to the plea. Upon examination of the agreements the court found them insufficient to sustain the claim set up in the plea. Held, following Pearce v. Rice, 12 Sup. Ct. 130, 142 U. S. 28, that the plea should be overruled.
This was a suit by the American Graphophone Company against the Edison Phonograph Works. On replication to plea to the bill.
Pollok & Mauero, for complainant.
ACHESON, Circuit Judge. In Pearce v. Rice, 142 U. S. 28, 12 Sup. Ct. 130, the supreme court distinctly held that, under the practice in chancery as modified by equity rule 33, when, by filing a repli
cation, issue is taken upon a plea, the facts, if proven, will avail the defendant only so far as in law and equity they ought to avail him. The force of that ruling was not at all weakened by the decision in Horn v. Dry-Dock Co., 150 U. S. 610, 14 Sup. Ct. 214, that, when the established plea meets and satisfies all the claims of the bill, it ought, in law and equity, to avail the defendant so far as to require a final decree in his favor, and that matters wholly foreign to the issue made by the pleadings are not to be considered. In the still more recent case of Green v. Bogue, 15 Sup. Ct. 975, the doctrine laid down in Pearce v. Rice, supra, was reiterated and acted upon by the supreme court. Such being the authoritatively settled rule of practice, it follows that notwithstanding the execution of the written agreements set out in the plea is proved, and even if it be conceded that it is also shown that all those agreements were executed with the knowledge and consent of the complainant, and for the purpose stated in the plea, it is yet incumbent upon the court to look into the agreements to see whether, as asserted by the plea, the defendant was thereby "licensed in perpetuity to make and sell, under the graphophone patents, including the patents referred to in said bill of complaint, a machine called the 'phonograph,' and supplies therefor." Accordingly, such an examination of the agreements has been carefully made by the court, and with a result unfavorable to the defendant. I am unable to discover that the agreements of August 1 and October 10, 1888, purport to invest the defendant with a perpetual license to manufacture and sell under the complainant's patents. Nor do I perceive that Lippincott had authority so to deal with the complainant's patents. His rights with respect to the graphophone patents are to be found in the two agreements between him and the complainant,-one original, and the other supplemental,-dated, respectively, March 26 and August 6, 1888. The rights thereby conferred upon Lippincott were personal to himself, and were subject to certain terms and conditions. I am of the opinion that the agreements relied on, even when considered together, did not confer upon the defendant the license set up in the plea. Beyond this it is not necessary now to go.
And now, June 24, 1895, the plea is overruled, without prejudice to the defendant's right to answer the bill; and leave is granted to the defendant to file an answer within 30 days from this date.
GERMAN-AMERICAN INV. CO. OF NEW YORK v. CITY OF YOUNGSTOWN.
(Circuit Court, N. D. Ohio, W. D. May 24, 1895.)
1. EQUITY-JURISDICTION-INADEQUATE REMEDY AT LAW.
The city of Y. advertised for bids for certain bonds about to be issued by it. Complainant submitted the highest bid, and was notified that the same would be accepted. It then asked for information and documents relating to the bonds, in order to submit them to its counsel, and, after receiving an opinion from its counsel that the bonds were invalid, declined
to take them, and demanded the return of $3,500, deposited on making its bid. The city refused to return the money, and notified complainant that it would sell the bonds to the highest bidder, and hold complainant liable for any loss. Thereupon complainant filed its bill, praying an adjudication as to the validity of the bonds, a return of the $3,500 if they were found invalid, or the delivery of the bonds on payment of the price if found valid, and an injunction against the city's disposing of the bonds. Held, that equity had jurisdiction of the suit, the remedy at law being inadequate. 2. MUNICIPAL CORPORATIONS-SPECIAL ACTS-OHIO CONSTITUTION.
The constitution of Ohio provides (article 13, § 1) that "the general assembly shall pass no special act conferring corporate powers." By sections 2835-2837, Rev. St. Ohio, municipal corporations are given power to issue bonds for the erection of waterworks, provided that, before such bonds are issued, the question of issuing them is submitted to a vote of the electors and two-thirds vote in favor of the issue. Held, that an act authorizing a named municipal corporation to issue bonds for the erection of waterworks, without requiring the submission of the question to the electors, is a special act conferring corporate powers, and is invalid under such constitutional provision.
This was a suit by the German-American Investment Company of New York against the city of Youngstown, Ohio, for the construction of an act of the legislature, and for other relief. The cause was heard upon the bill and answer.
S. D. Dodge and Williamson & Cushing, for complainant.
John A. L. Campbell, M. A. Norris, and King, McVey & Robinson, for defendant.
RICKS, District Judge. On April 25, 1894, the legislature of Ohio passed an act authorizing the city council of the city of Youngstown to issue bonds to extend and improve the waterworks of said city, and to provide for the payment thereof. The amount of bonds so issued was not to exceed $186,000, and they were to be of such denomination and payable at such times, not to exceed 20 years from the date of issue thereof, as the city council of said city might determine, and should bear a rate of interest not to exceed 6 per cent. Soon after the passage of said act, the city clerk of Youngstown issued a circular notice, inviting sealed proposals for the purchase of $160,000 of the said bonds, which bids were to be filed on or before 2 o'clock, standard time, June 18, 1894. In compliance with said circular, the complainant filed its bid, in which it offered to purchase said bonds for the sum of $172,752, and deposited with the defendant, as security for the performance of said bid, the sum of $3,500. Upon being notified that its bid was the highest and best bid, and was accepted, the complainant requested of the defendant all information and documents relating to the authority of the city to issue such bonds, in order that it might submit the same to its counsel to determine whether or not they were valid. Such information was duly furnished and submitted to its counsel, who gave a written opinion that such bonds were invalid. Thereupon the complainant notified the defendant of such opinion, refused to take the bonds, and requested the return of said sum of $3,500. This request the defendant refused, and therefore notified the complainant that it would sell said bonds to the highest bidder, and hold it liable for damages
for failure to comply with its bid. Thereupon, on July 18, 1894, the complainant filed its bill in this court, setting forth the above facts, and averring that, up to the time of the acceptance by the defendant of the complainant's bid for said bonds, complainant had no knowledge or means of knowledge of the validity of said bonds, or as to the act under which they were issued, and made said bid upon the faith of the validity of said bonds and the incorporate power and authority of the defendant to issue the same; and further averring that said bonds were negotiable in form, and payable to bearer, and that in consequence of doubts that had been raised and existed as aforesaid, respecting the validity of said bonds, the same cannot now be sold for their actual market value, which they could have if free from such doubt as to their validity. If said bonds are valid, complainant avers that they are worth the amount bid for same, but, if invalid, they are altogther worthless and void, and it would be impossible to determine as to the validity of the same and the rights of the complainant under its said bid without the intervention of a court of equity, which would determine finally as to the validity of said bonds, and whether, under its said bid, the complainant should take the same, or whether the defendant should refuse to return the amount of the deposit aforesaid. If the defendant should carry out its threat, and should sell said bonds, such sale would necessarily be for very much less than the value they would have if free from such doubt, and, in case it should be finally determined that the said bonds are valid, such sale would cause this complainant irreparable loss, and one which could not be adequately compensated in damages, and for which the complainant would have no redress in a court of law. Wherefore the complainant prays that it be adjudged and decreed: First, whether said act of the legislature was valid; second, that if this court should determine that such statute is unconstitutional, and the said bonds are invalid and void, the defendant be adjudged to pay this complainant the $3,500 so deposited as aforesaid; third, that if this honorable court shall determine that said statute is constitutional and valid, and the said bonds are valid and binding obligations of the defendant, the defendant be adjudged to issue and deliver the same to the complainant upon its paying to the defendant the unpaid balance of the purchase price thereof, and for other and general relief; and in the meantime, and during the pendency of this action, the bill prayed for an injunction restraining the defendant and its agents from selling or transferring said bonds. A temporary restraining order was granted, prohibiting the said city of Youngstown from disposing of said bonds until the case could be heard upon its merits.
In due course of procedure, the city filed its answer, in which, among other things, it affirms and contends that the special act of the legislature under which said bonds were issued is a constitutional enactment, and the bonds issued thereunder are valid; that the complainant bid for his bonds having notice of the public legisla tion on the subject; that its bid had no qualification that such