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ANDERSON V. WATT, 138 U. S. 694 (1891)

U.S. Supreme Court

Anderson v. Watt, 138 U.S. 694 (1891)

Anderson v. Watt

No. 138

Argued January 8, 1891

Decided March 2, 1891

138 U.S. 694


Since the passage of the Act of March 3, 1875, 18 Stat. 470, if it appear from the pleadings and proofs, taken together, that the defendants are citizens of the United States, and reside, in the sense of having their permanent domicil, in the state of which the complainants are citizens (or that each of the indispensable adverse parties is not competent to sue or liable to be sued therein), the circuit court cannot maintain cognizance of the suit, and the inquiry is determined by the condition of the parties at the commencement of the suit.

The husband of a married woman is a necessary party in Florida to a suit in equity to foreclose a mortgage upon real estate owned by her there, and although he be not named in the bill as defendant he may appear at the hearing with the consent of all parties, and in this case the objection of want of consent cannot be taken.

Page 138 U. S. 695

The place where a person lives is taken to be his domicil until facts adduced establish the contrary.

A domicil, once acquired, is presumed to continue until it is shown to have been changed.

The domicil of the husband is the domicil of his wife, although she may be residing in another place, and even when she may be living apart from her husband without sufficient cause.

This was a bill filed on the 25th day of August, 1885, by Gustavus W. Faber and James S. Watt, describing themselves as "both of the City and New York and citizens of the State of New York, executors of the last will of James Symington, deceased, late of the New York," as such executors, against

"J. C. Anderson, of Orlando, Orange County, Florida, a citizen of the State of Florida, as the administrator of Edward J. Wilson, deceased, and Thomas Emmett Wilson and Sarah J. Davis, both of Sylvan Lake, Orange County, Florida, citizens of the State of Florida,"

for the foreclosure, by sale of the property, of a mortgage given by Edward J. Wilson to James Symington, August 28, 1875, and recorded May 3, 1876, on certain real estate in Orange County, Florida.

Anderson and Wilson demurred to the bill, and assigned as one of the causes of demurrer that the bill did not "sufficiently show the authority of complainants to bring this suit as the executors of James Symington, deceased." Mrs. Davis filed a verified plea averring that the executors had been discharged, and also that she, "before and at the time of the filing of the said bill, was, and now is, under the coverture of one George W. Davis, who is still living, to-wit, in the City and New York," and praying judgment, and to be hence dismissed.

December 26, the plea and demurrer were severally set down for hearing by the solicitors for the complainants. Copies of Symington's will, the proofs on its presentation for probate, the order admitting to probate, and the letters testamentary, duly exemplified, were subsequently filed, and the demurrer overruled. Defendants Anderson and Wilson answered March 15, 1886, setting up a homestead entry of the

Page 138 U. S. 696

land, possession, improvement, commutation, and payment by one Earnest; the conveyance by him to E. J. Wilson by deed dated March 15, 1871, and recorded November 28, 1876; deed of E. J. Wilson of one-half, for a valuable consideration, to Thomas E. Wilson, May 22, 1871, recorded September 11, 1875; actual possession by Thomas E. and his grantee from May 22, 1871, to the present time; issue of the patent April 10, 1875, to E. J. Wilson, recorded November 24, 1879; large advances by Thomas E. prior to the Symington mortgage, for the benefit of the land, in excess of his share, and valuable improvements made thereon by himself and his grantee.

The answer further averred that E. J. Wilson, who resided in New York, died there in April, 1876; that the taxes upon the undivided half interest belonging to E. J. Wilson's estate were not paid for the years 1876 and 1877; that the heirs and devisees would have nothing to do with the affairs of the estate, and Symington took no steps and made no sign; that the undivided half was sold January 8, 1878, for the taxes, and defendant Thomas E. became the purchaser, and received a deed January 16, 1879, as by statute prescribed, which was duly recorded that day; that he and his grantee had remained in full, quiet, and peaceable possession of said undivided half from thence hitherto, and no suit had been commenced to set aside said tax deed or recover possession, and that the statutory bar was complete.

It was further alleged that on the 13th of October, 1879, defendant Wilson sold the land to Sarah J. Davis, wife of George W. Davis, of the City of New York, for $8,000 -- $2,000 cash, and $6,000 on time, secured by a mortgage back -- and conveyed it to her by warranty deed in fee simple, which deed was recorded November 24, 1879. Defendant Wilson further answered that Mrs. Davis immediately went into the actual possession of the land, and has continued in such possession from thence hitherto, and made improvements upon the property to the amount of over $20,000.

Certain assignments of the purchase money mortgage to Mary F. Wilson, of New York, in January and June, 1884, and duly then recorded, were set forth, as well as a mortgage

Page 138 U. S. 697

by Mr. and Mrs. Davis, to Appleton & Co., made and recorded in 1884.

May 3, 1886, an answer, sworn to by defendant Sarah J. Davis, entitled as "the answer of Sarah J. Davis and George W. Davis, her husband, two of the defendants above named, to the bill of complaint exhibited against them by the complainants," signed by "def'ts' sol's" and purporting throughout to be by "these defendants," was filed in the case. This set out the circumstances under which the purchase from Thomas E. Wilson was made, the consideration, the possession and improvement of the land, and that by virtue of the conveyance to her and her adverse possession, she had acquired absolute title.

Replications were filed and proofs taken, and on December 20, 1886, the court ordered that the bill be amended by striking out from the address the words, "Gustavus W. Faber and James S. Watt, both of the city and State of New York and citizens of the State of New York," and inserting therein as follows:

"Gustavus W Faber, of the City and State of New York and a citizen of the State of New York, and James S. Watt, a subject of the Kingdom of Great Britain, temporarily residing in the City of New York."

It was further ordered that

"it appearing to the court that letters testamentary on the estate of James Symington, deceased, heretofore issued to Gustavus W. Faber, deceased, one of the complainants herein, suing as one of the executors of James Symington, deceased, have been revoked, as is shown by a duly exemplified copy of the records of the Surrogate Court of the County of New York, State of New York, filed herein, it is therefore ordered, adjudged, and decreed, on motion of complainants herein, that this cause proceed in the name of the said James S. Watt, sole surviving executor of James Symington, deceased, and that it be discontinued as to said Gustavus W. Faber, suing as co-executor."

The exemplified copy of the record referred to was filed in the court, with the amendment, December 21, and showed that on the 4th of May, 1886, Faber filed a petition in the office of the Surrogate for the County of New York for a decree revoking the letters testamentary issued to him, and that the order of revocation was thereupon entered thereon.

Page 138 U. S. 698

The cause was heard upon the pleadings and proofs, and at the hearing the respondent introduced an exemplified copy of the will of Edward J. Wilson, deceased, the proceedings on its admission to probate, and the letters testamentary issued to his executors, May 19, 1876.

January 19, 1887, a decree was entered (by the district judge holding the circuit court) finding

"that the defendant, J. C. Anderson, as the administrator of the estate of Edward J. Wilson, deceased, and in his capacity as such administrator, is justly indebted to the complainant as the sole acting executor of the last will and testament of James Symington, deceased, in the sum of thirteen thousand ($13,000.00) dollars principal, and ten thousand eight hundred and eighty-seven 13-100 ($10,887.13) dollars interest, making in all twenty-three thousand eight hundred eighty-seven 13-100 ($23,887.13) dollars, and that said complainant holds a mortgage lien to secure the said principal and interest hereby adjudicated and declared in his favor upon an undivided one-half interest in and to the following lands [describing them],"

and decreeing a sale in default of payment. Sale having been made and reported, exceptions were filed to its confirmation, and overruled. Thereupon an appeal was perfected from the main decree and the order confirming the sale.

Page 138 U. S. 701

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