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claimed adversely to their common title, could be maintained on the ground that the complainants, though owners in severalty, were united in interest in the vital question in issue in the case. In Brown v. Safe Deposit Co., 128 U. S. 403, 412, 9 Sup. Ct. 127, the supreme court declared:
"It is not indispensable that all the parties should have an interest in all the matters contained in the suit. It will be sufficient if each party has an interest in some material matters in the suit, and they are connected with the others. Addison v. Walker, 4 Younge & C. Ch. 442; Parr v. Attorney General, 8 Clark & F. 409, 435; Worthy v. Johnson, 8 Ga. 236."
Test this bill by any of these rules, and it is not multifarious. It presents a single cause of action, founded on a single ground. It is a suit to follow and recover $213,708 of the capital of this insolvent bank, on the ground that it was a trust fund pledged to secure its creditors, and that it has been diverted to the appellees. The allegations of the bill are that every dollar of this fund was so pledged and so diverted, and that each of the defendants has received a part of it. The demurrers admit these allegations. How can the defendants be heard to say that the complainant's claims against them are separate, distinct, and unconnected with each other, in the face of this admission that they have received and hold a part of the misappropriated fund which this suit is brought to recover? If the bill had alleged that this entire fund was diverted and distributed to the appellees at one time, no one could claim that such a bill was multifarious; but so far as the question now under consideration is concerned, this bill has exactly the same legal effect that such a bill would have. It alleges that the financial condition of the bank was the same from the time that the first dividend was declared until the last one was paid. If an issue should ever be made upon this allegation, the vital point in the case will be whether this $213,708 was taken from the capital or from the profits of the bank. If the complainant establishes his averments, a liability will be imposed upon each of the defendants for some portion of this fund. If he fails, all the defendants will be dismissed without day. Thus, each of these defendants, by sharing the diverted fund which is the subject-matter of this suit, has connected the cause of action against him with that against every other defendant, and has become interested in the subject-matter of the suit itself, and in the vital issue in the case, whether the fund paid to the appellees was taken from the capital or from the profits of the bank. The objection that the bill is multifarious must be overruled.
A single question still requires consideration. According to this bill the defendant Hall was a shareholder of this bank, but not a director or oficer thereof, in 1886, and about December 31st in that year he received as a dividend on his stock $120 of the fund which the complainant now seeks to recover. The bill does not show that he ever received any other part of this fund. By the statutes of Nebraska, an action for relief on the ground of fraud is barred in four years after the cause of action accrues, but the cause of action in such a case is not deemed to have accrued until
the discovery of the fraud. An action for the recovery of this $120 on any other ground stated in the bill than fraud is barred in four years from the time the cause of action accrues. Consol. St. Neb. 1891, SS 4547, 4548, 4552. This suit was commenced on July 6, 1894, more than seven years after defendant Hall received his dividend. He filed a general demurrer to this bill. eral demurrer, in equity, raises the question of the effect of the statute of limitations where the bill discloses facts which show that the analogous cause of action at law is barred by the terms of the statute. Maxwell v. Kennedy, 8 How. 210; Bank v. Carpenter, 101 U. S. 567, 568. It goes without saying that the national courts, sitting in equity, act or refuse to act in analogy to the statute of limitations of the state in which they are sitting, and that, if the analogous action at law against this defendant would be barred under the statutes of Nebraska, this suit must be dismissed as against him. Rugan v. Sabin, 10 U. S. App. 519, 3 C. C. A. 578, and 53 Fed. 415, 420, and cases cited. By the terms of these statutes an action to recover this dividend from the defendant Hall was barred more than two years before this suit was commenced; but the counsel for the complainant seeks to escape from this conclusion on three grounds: First, that the stockholders who received unearned dividends are trustees of an express trust for the creditors of the bank, and the statute of limitations is inoperative against them; second, that the cause of action did not accrue until the fraudulent misappropriation of the dividend was discovered, and the bill alleges that the directors concealed it until the receiver was appointed; and, third, that the cause of action did not accrue until the receiver was appointed, and it was discovered that it was necessary to collect this fund in order to pay the creditors of the bank.
Express trusts are not within the statute of limitations because the possession of the trustee is presumed to be the possession of the cestui que trust. Prevost v. Gratz, 6 Wheat. 481, 497; Lewis v. Hawkins, 23 Wall. 119, 126; Railroad Co. v. Durant, 95 U. S. 376.
But lapse of time is as complete a bar to a constructive or implied trust in equity as at law, unless there has been a fraudulent concealment of the cause of action. Speidel v. Henrici, 120' U. S. 377, 386, 7 Sup. Ct. 610; Dole v. Wilson, 39 Minn. 330, 333, 40 N. W. 161; Carroll v. Green, 92 U. S. 509; Streitz v. Hartman, 26 Neb. 33, 49, 41 N. W. 804; Insurance Co. v. Page, 17 B. Mon. 412, 447. The defendant Hall never held the dividend which he received under an express trust to secure the creditors of this bank. He never contracted to hold it for them or for that purpose. He received it as his share of the profits of the business of the bank, and held it as his own. The trust with which it is impressed arises from the fact that it was taken out of the fund held by the bank in trust to pay its creditors. The defendant, who was prima facie its owner, is converted into a trustee by the evidence of this fact, and the trust is an implied or resulting trust, created by operation of law, and not an express trust arising from contract
or privity. The complainant cannot, therefore, escape the bar of the statute on the ground that it is inoperative against an express trust.
Nor can he escape on the ground that the fraudulent misappropriation was not discovered until the receiver of the bank was appointed. We refrain from considering or expressing an opinion upon a case in which a director or stockholder, who knew or ought to have known the financial condition of the bank, aided or permitted the misappropriation of this fund, and then averted suspicion from the true state of facts, and concealed the cause of action by false reports and statements, until that question shall be properly presented by pleadings or proofs. This defendant was not a director. The bill alleges that the directors and some of the defendants knew the condition of the bank, and concealed the cause of action which accrued by the misappropriation of this fund, but it nowhere alleges that this defendant either had knowledge of or concealed these facts. So far as this record shows, he received his dividend in good faith, in the honest belief that he was justly entitled to it. The reason of the rule that the time limited by the statute for the commencement of an action for fraud shall not commence to run while the defendant conceals it is that he ought not to be permitted to take advantage of his own wrong. Neither the reason nor the rule has any application to a cause of action which is fraudulently concealed from the parties in interest by third persons. The fraudulent concealment of the defendant alone will delay the running of the statute. Pratt v. Northam, 5 Mason, 95, 112, Fed. Cas. No. 11,376; Simmons v. Baynard, 30 Fed. 532; Stevenson v. Robinson, 39 Mich. 160. The result is that an action at law to recover this dividend of $120, which was paid to Hall in 1886, would have been barred before this suit was commenced, and by analogy this suit cannot be maintained against him. Nor can it be successfully maintained that the cause of action to recover any part of this fund first arose after the receiver was appointed, and when it was first discovered that the other assets of the bank were insufficient to pay its debts. When the fund was misappropriated, the wrong was done, and the right of recovery was complete. The assets of the bank were then insufficient to pay its creditors, if the allegations of the bill that the bank was then insolvent are true, and unpaid creditors might then have maintained a suit to recover back this fund.
Our conclusion is that, in the state of Nebraska, a suit to recover from an innocent shareholder of a bank an unearned dividend which he has received in good faith, without notice of any fact that would lead a reasonably prudent man to learn that the dividend was not earned, is barred in four years from its receipt. The decree below must be reversed, with costs, and the case must be remanded, with directions to sustain the demurrer of defendant Hall, and to dismiss the bill, as to him, at the costs of complainant, and to permit the other defendants to answer; and it is so ordered.
UNITED STATES V. TENNESSEE & C. R. CO. et al.
(Circuit Court, N. D. Alabama, s. D. December 18, 1895.) 1. PUBLIC LAND-RAILROAD GRANT-FORFEITURE.
The condition in Act June 3, 1856, granting public lands to the state of Alabama to aid in the construction of certain railroads, that, if any one of said roads is not completed within 10 years, no furtber sale shall be made, and the lands unsold shall revert to the United States, cannot
be enforced except by congressional action. 2. SAME
Nor, in the absence of such action, are sales and transfers made after the expiration of such 10 years invalid.
Suit by the United States against the Tennessee & Coosa Railroad Company, the Nashville & Chattanooga Railway Company, Hugh Carlisle, and others.
Emmet O'Neal, U. S. Atty., and Frank S. White, for the United States.
Goodhue & Sybert and Oscar Hundley, for defendant.
BRUCE, District Judge. The bill in this case was filed October 31, 1891, and seeks a decree of forfeiture of the lands described in the bill. It brings up for consideration the act of congress granting lands to the state of Alabama to aid in the construction of a railroad from the Tennessee river, at or near Guntersville Landing, to Gadsden, on the Coosa river, which act was passed and approved June 3, 1856. The state of Alabama accepted the trust created by the act, and granted the lands to the Tennessee & Coosa River Railroad Company, by act of the legislature. Sess. Laws 1859-60. The route of the road was definitely fixed, and map of the lands was filed in land office at Washington, and certified lists of the lands were approved by the secretary of the interior, and delivered to the state. The Tennessee & Coosa Railroad Company sold portions of the lands to various purchasers, some of whom are made parties to the bill, but the larger part of the lands were sold to Hugh Carlisle, and he succeeded to the right of the company for the unpaid purchase money due and unpaid upon the portions of the lands previously sold. The Tennessee & Coosa River Railroad Company contracted with Hugh Carlisle for the construction of the road, and deeds of lands were made by the railroad company to Hugh Carlisle in the year 1887, for the consideration stated in the deeds, the same being, as claimed, for labor done and expenditures for the building and construction of the railroad.
The bill charges fraud on the part of Carlisle; that he did not pay for the lands; that he is not a bona fide purchaser; and charges waste and spoliation of the lands, and that Carlisle is insolvent. The prayer of the bill is that the selection made for the railroad company, as well as the approvals thereof, be set aside; that any and all certificates or other evidence of title issued to said Tennessee & Coosa Railroad Company, or purporting to convey the said lands, or any part thereof, shall be delivered by such of the defendants as may
be found to have them in possession, to the clerk of this court, to be by him duly canceled; and that all the rights, title, and interest, of every kind and description, of the said defendants, in and to any of the lands and property described in this bill, shall be divested out of them, and declared to be vested in the United States of America; and that the conveyances hereinabove set forth as Exhibits D and E shall be set aside, vacated, and annulled, and the said Hugh Carlisle shall be directed by the decree of this honorable court to deliver the originals thereof within a time to be fixed by the said decree to the clerk of this court; and that the same shall be duly canceled on the records of the several counties wherein the same have been recorded, —with prayer for general relief.
The answer of the defendant the Tennessee & Coosa Railroad Company contains a full and specific denial of the charges of fraud in the bill, and, among other things, says “that said conveyances were made and the lands were sold for the purpose of aiding in the construction of said railroad, and that the entire consideration recited to have been paid for said lands was used in the construction of said railroad.” Hugh Carlisle's answer to the bill is quite full and specific, and it is deemed unnecessary to refer more at length to his answer or the other answers of the respondents which are filed in the cause.
The main question arises under the provisions of the granting act of congress of June 3, 1856, and also what is known as the “Forfeiture Act," of the 29th day of September, 1890. It is not questioned that on and before that date, September 29, 1890, 10/22 miles of the railroad, from Attalla northwardly to Littleton, had been constructed, and were at that time in operation.
The first section of the forfeiture act provides: “That there is hereby forfeited to the United States, and the United States hereby resumes title thereto, all lands heretofore granted to any state or any corporation, to aid in the construction of a railroad opposite to, and co-terminous with the portion of any such railroad not now completed and in operation, for the construction or benefit of which such lands were granted, and all such lands, are declared to be a part of the public domain. *
A forfeiture act must be construed with some strictness, and, by the very terms of this act, the railroad having been completed and in operation opposite to and coterminous with the lands in question, other than those in the first 120 sections are not within the terms of the act. It would almost seem as if they were purposely excluded from the terms of the act, and the argument is not really insisted on upon this point, but upon the construction of the fourth section of the act, granting public lands in alternate sections to the state of Alabama, to aid in the construction of certain railroads in said state, June 3, 1856.
That section is in these words: “That a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said state shall certify to the secretary of the interior, that any continuous miles of any of said railroad, is completed, then another quantity of land hereby