Wolfe v. Barataria Land Co.

255 F. 503, 166 C.C.A. 579, 1919 U.S. App. LEXIS 1478

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 8, 1919
• Docket: No. 4966
• Status: Published

Opinions

HOOK, Circuit Judge.

The Barataría Dand Company sued the Wolfes in the United States District Court for the Northern District of Iowa to recover a part of the purchase price paid them for a tract of land in Douisiana, which they sold and conveyed to it with covenants of seizin and warranty. The price paid was an agreed sum per acre, and the action was brought because of a shortage in the area, afterwards ascertained.

To show the extent of the shortage the plaintiff introduced in evidence the record of a decree of a court of Louisiana in a suit between it and an adjoining landowner to settle a controversy over their boundary line. The line established by the decree lessened the area conveyed and warranted to the plaintiff. Upon proof that the defendants Wolfe were informed of the pendency of the Louisiana suit, and were invited to aid plaintiff in the trial of it, the court instructed the jury that the decree was conclusive of the true boundary line, leaving them only to compute their award upon the shortage disclosed and the price paid per acre. Accordingly there was a verdict and judgment for the plaintiff, and defendants prosecuted this writ of error. The question is of the correctness of the court’s instruction.

A statute of Louisiana provides for suits to settle controversies over boundary lines. Such a suit does not depend upon adverse possession by a defendant as in actions in ejectment, but upon the existence of a controversy over the true boundary between adjoining owners, and it is not material which of the disputants commences it. The remedy provided by the statute makes for good order, and in effect, if not in form, may in a sense result in the judicial establishment of title. The plaintiff here was also the plaintiff in Louisiana, but there is no sound reason in that circumstance why those heholden to it may not be concluded by the decree as much as if it had been a defendant in ejectment and had suffered eviction. The controversy was a justiciable one, affecting plaintiff’s right to land embraced in tlie description in defendants’ deed. It is not denied that there was a real controversy between the plaintiff and the adjoining owner over the boundary line, and no fraud or collusion appears. The judicial determination of it must necessarily have been in Louisiana.

To hold a warrantor, indemnitor, or person in a similar relation, bound by the result of a suit involving the matter upon which his obligation to another rests, it is not necessary that he be a formal party to the record. The strict principles of res adjudicata do not apply. His privity or relation to the record party precedes the judgment, and it is sufficient if he has information of the suit and an invitation and seasonable opportunity to aid or participate in the conduct of it. Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427. In that case the city sued Robbins to recover the amount of a judgment it was compelled to pay to one Woodbury for injuries caused by his falling into an excavation in a public street which Robbins made and negligently left unguarded. Robbins had been informed of the Woodbury suit against the city and of the approaching trial,'and was requested by the city to aid it in procuring testimony. He was not formally notified to defend, nor that he would be held responsible for the result. The Supreme Court held that such a notice was not necessary. That case was founded on a tort, but the principle applies as strongly where the duty to indemnify or hold harmless arises from contract. There is a diversity of views in the state courts as to the notice that should be given the indemnitor or warrantor. Some require an express notice or request to participate as a party to the cause, and a declaration of the consequences if it is ignored; but the modern trend is towards a relaxation of that strictness. The better rule is that of Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 144 N. Y. 663, 39 N. E. 360, as follows:

“No particular i'onn of words is necessary in order to constitute notice in such cases, nor is it even necessary to give a written notice. It is sufficient that the pai-ty against whom ultimate liability is claimed is fully and fairly informed of tile claim, and that the action is pending with full opportunity to defend or to participate in the defense. If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record.”

But, however this may be, the rule of Robbins v. Chicago prevails in federal jurisdictions. There is nothing inconsistent with it in Kapiolani Estate v. Atcherly, 238 U. S. 119, 35 Sup. Ct. 832, 59 L. Ed. 1229, Ann. Cas. 1916E, 142.

The defendants knew of the controversy over the boundary line several years before the Louisiana decree was rendered. They afterwards learned of the pendency of the suit there; they had a copy of the petition in the case, and made surveys on their own account, all in ample time for their affirmative aid and participation in the litigation. About four months before the decree was rendered they were requested by plaintiff to furnish any evidence they had for use at the trial, and to make suggestions about the establishment of the true boundary line. They replied in substance that if plaintiff would dismiss the present action, which had been brought and was then pending in Iowa, “and waive its claims for damages by reason of alleged shortage,” one of the defendants would go to Louisiana and testify and furnish what information he could; otherwise not. This correspondence was conducted between counsel of the parties to this suit, but one of the defendants saw the plaintiff’s letter. They made no claim of any lack of complete information, or of insufficiency in time or character of the notice and request. Their position, quite untenable, was that, if plaintiff did not dismiss the present action and waive its claim for damages, they would not disclose the evidence they had prepared for their own defense. Manifestly the defendants had information of the suit in Louisiana, and an invitation and an opportunity to aid or participate in its conduct sufficient to hind them to the result.

Wo have so far considered the case upon the assumption that the Louisiana decree was final. Defendants urge that it was not. It is doubtful that this point was made at the trial definitely enough to attract the attention of the court, but in an amendment to its petition in this cause, setting up the decree, the plaintiff averred that the defendant in that suit had the right of appeal, and that an appeal and reversal might occur. True, this was done in an attempt by plaintiff to reserve the right to increase its claim for damages; but the averment cannot he ignored, and it must be considered in connection with an entire absence in the record before us of anything indicating a finality of the Louisiana decree. We cannot say that an appeal was not taken, or that, if taken, it would not materially and substantially change the rights of the parties to that suit, as well as the rights of defendants here. For this reason the judgment must be reversed and a new trial awarded, but nothing we have said shall be taken to affect the discretion of the trial court to hold the case until the appeal, if one was taken, results in a final decree.

The judgment is reversed, and the cause is remanded for a new trial.