APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
This bill was brought by the original owner of the land, George H. Hilton, against John Hilton, his trustee; Alice B. Ducharme, the grantee of John Hilton; Augusta Hilton, grantee of her sister Alice; Smith B. Galey, grantee of George L. Hilton, one of the cestui que trusts, to whom his sister Augusta had conveyed the land upon his attaining his majority; William C. Lincoln, grantee of Galey, and certain other parties who derive their title either as grantees or mortgagees of the undivided one-third interest conveyed by George L. Hilton to Galey and Lincoln. The bill deals particularly with the third interest conveyed to John Hilton for the benefit of George L. Hilton, who died September 16, 1877. Complainant now claims his interest either by descent, or, if his intestate's son was only seized of a life estate, then as owner of the reversion.
We think it entirely clear that the proceeding taken by Lincoln to obtain a sale of one-half the property operates to estop the complainant from maintaining this suit. The petition in that case stated that Lincoln, the plaintiff, held two-thirds of the property in trust for James F. and Joseph B. Hilton, and the remaining one-third he claimed to own in fee.In accordance with these allegations the District Court found that he did hold the two-thirds in trust for the infants, and that he was the owner in fee of the other undivided one-third, and authorized him to sell one-half of the entire property. This decree contains every element of a res judicata. The plaintiff in that proceeding is one of the defendants in this. George H. Hilton, the original complainant in this proceeding, was one of the defendants in that. He certified to the ability and integrity of Lincoln, disclaimed all interest in the property, allowed the decree to be taken against him, and took no steps to have it set aside, appealed, or modified.
The principal criticism of it is that Robinson was not the authorized attorney of the defendant in that case, and that his disclaimer of any interest of the complainant in the lands described in the petition was, therefore, not binding upon him. There is no evidence of this, however, except the unsworn statement of the complainant in his amended bill, which is not even signed by him in person. Of course this cannot be considered as against the decree of the District Court, which must necessarily have found that Robinson was authorized to make the disclaimer. There was certainly evidence from which the court might reasonably have adjudged, as it did, that Lincoln was the owner of an undivided one-third of the property in question. Not only does a statute of the State declare that "the term 'heirs' or other technical words of inheritance shall not be necessary to create or convey an estate in fee simple," and that "every conveyance of real estate shall convey all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used," but on May 18, 1866, George H. Hilton and his wife conveyed the lands in question to Augusta Hilton, who then held the title from her sister Alice, with the declaration that the deed was made to perfect the title in Augusta, "as it appears that the deed made to above grantors dated 26th October, 1861, through which the said land vested in her has not been recorded and has been mislaid or lost." Without expressing an opinion whether Lincoln did in fact hold the title to one-third, there was certainly evidence tending to show that the court might have made in perfect good faith the finding that it did.
In addition to this we have the opinion of the Supreme Court of Nebraska in a case brought by Hilton against one Bachman, (24 Nebraska, 490,) holding that complainant was bound by that judgment. In delivering the opinion the court observed: "All presumptions are in favor of the regularity of that proceeding. We must presume that the District Court which rendered the decree did so upon ample proofs of title, and that the decree being still in full force is binding, and settles the question of title."
The decree of the court below was clearly correct and is, therefore,
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