Sidebilder
PDF
ePub

The order of January Term, 1828, was predicated on "the present state of the pleadings," and contemplated an amendment; and it could as well be allowed before the Supreme as the Circuit Court. Matheson's Adm. v. Grant's Adm. 2 How. 263, 281; Marine Ins. Co. v. Hodgson, 6 Cranch, 206.

VI. This is a bill of review to vacate a decree, and to have the benefit of the proceedings. It is therefore barred by lapse of more than five years from the final decree, whether the decree of December, 1821, or May, 1822, or May, 1830. Thomas v. Harvie's Heirs, 10 Wheat. 146; Whiting's v. Bank of United States, 13

And treating the decree of December, 1821, and May, 1822, as final, by lapse of twenty years and laches and negligence.

(e) The Supreme Court having assumed ju-Peters, 13, 15. risdiction, allowed the re-instatement, and certified the cause below for further proceedings, it is not competent for any party or court to impeach its jurisdiction. Voorhees v. Bank of *VII. But, in fact, it appears that [*595 United States, 10 Pet. 474; Martin v. Hunter's Lamar is not the purchaser of anything that Lessee, 1 Wheat. 104; Ex-parte Sibbald v. Unit-ever was the property of the complainants. ed States, 12 Pet. 492; Washington Bridge Co. v. Stewart et al. 3 How. 413, 424, 426; Skillern's Exec. v. May's Exec. 6 Cranch, 267.

If, then, the decree of 1830 be not void, but valid as to all parties to it, then,

1. McKinne is expressly bound by it. 2. It ratifies the sale, and thus removes all difficulty arising from McKinne's previous supposed dissent; and,

3. Thus Shultz being bound by the sale, and 594*] McKinne by *the ratification, the whole interest in the bridge is concluded by consent decrees.

V. The confirmation by final decree was not vitiated by failure to bring Shultz's assignee before the court; for,

1. The decree for sale was final and conclusive on Shultz's whole interest. Ray v. Law, 3 Cranch, 179; Whiting v. Bank of United States, 13 Pet. 6, 15.

2. The sale was merely execution of the decree, and confirmation was the right of the purchaser, and, of course, in the absence of cause shown.

The right claimed was a franchise to have a toll bridge over a navigable river, held by acts of the Legislatures of South Carolina and Georgia, for a limited time, which had expired when Lamar purchased the bridge, which then was held under a new grant. Laws of Georgia for 1833, p. 40, 41, tit. Bridges; 9 Statutes of South Carolina, 589, sec. 24; 471, 472, sec. 53; Act of Georgia, Dec. 23, 1840.

The record of the original cause, being in the Supreme Court, under the certificate of division, and being referred to in the bill, may be inspected. Bank of United States v. White, 8 Pet. 262, 268.

The franchise in this case was an incorporeal hereditament granted for a term of years to the grantees and their heirs, and could only exist by virtue of the acts of Assembly, and ceased on the expiration of the time limited. 2 Bl. Com. 37, 38; 2 Inst. 220; Bank of Augusta v. Earle, 13 Pet. 595; People v. Thompson, 21 Wend. 235, 249, 250; 23 Wend. 537, 554, 564, 569.

That this franchise and the statute creating 3. No cause is shown in this record, no ir-it are public in their nature. 9 Bac. Abr. 231, regularity or fraud, nor any grievance to the 232; 21 Wend. 235, 249, 250; 15 Johns. 387, complainants' assignee. 389; Gresley on Eq. Ev. 293, 294; 1 Starkie on Ev. 196.

The points made by Mr. McAllister and Mr. Johnson were the following:

And the confirmation pending the abatement or defectiveness of the suit by reason of the assignment and the absence of the assignee, is not error for which a bill of review will lie, 1st. That the present bill of revivor and supunless the sale be impeached. Thomas v. Har-plement has not been exhibited in accordance vie's Heirs, 10 Wheat. 146; Whiting v. Bank of United States, 13 Peters, 15, 16.

4. There were always parties before the court competent to act; for by the assignment the suit was not abated but defective, and could be proceeded with if neither party required the assignee to be brought before the court and he did not come in. Story's Eq. Pl. sec. 328; Sedgwick v. Cleaveland, 7 Paige, 287, 289, 290, 291, 292; Massey v. Gillelan, 1 Paige, 644.

Shultz was still a necessary and proper party, and could for his own interest consent to the re-instatement and the amendment-especially if assignee declined or neglected to proceed with the suit. Sedgwick v. Čleaveland, 7 Paige, 290; Mitf. Eq. Pl. by Jer. 65, note t.

This assignment being out of the State where the suit was pending, if considered as made under a tribunal and law operating in invitum, cannot appear on the fund in the hands of the Circuit Court, extraterritorially. Harrison v. Sterry, 5 Cranch, 289; Blane v. Drummond, 1 Brock. 62.

If voluntary, the assignee is bound by all proceedings before he is made party. Story's Eq. Pl. sec. 351; Mitf. Eq. Pl. by Jer. 73, 74.

with the practice and usages of courts of equity, and on that ground the demurrer must be sustained. Story's Eq. Pl. sec. 643; 1 Daniell's Chancery Prac. 649; Wortley v. Birkhead, 3 Atk. 809, 811; Fletcher v. Tollett, 5 Ves. 3.

2d. That the present bill was filed without leave of the court and notice to the adverse party, on the erroneous supposition that the original suit, the revival of which is the object of the present bill, had abated, whereas, by complainants' own showing, it had only become defective, and, in such case, the court had no jurisdiction of the bill without previous leave given to file it, and due notice to the opposite party of the intention to file such bill, in compliance with the 57th Rule of Practice of the courts of equity of the United States. 1 Howard, xviii.; 17 Law Library, 112; Story's Eq. Pl. sec. 383, note 3; 1 Daniell's Ch. Prac. 75; Sharp v. Hullett, 2 Sim. & Stu. 496; Pendleton v. Fay, 3 Paige's Ch. R. 206; Whitney v. Bank of United States, 13 Peters, 13; 3 Dan- [*596 iell's Ch. Prac. 1733, 1737; 2 Ves. Sen. 571, 577; Dexter v. Dexter, 4 Mason, 304; Story's Eq. Pl. secs. 466, 527, 528, 443; 1 Daniell's Ch. Prac. 449, 625, 655; 4 Paige's Ch. R. 639.

*

546.

4th. That, by their own showing, neither of the complainants in this case had such an interest as would authorize the filing of the present bill.

3d. That where two complainants exhibit | State in which he seeks to sue, nor her citizens, their bill, both must have an interest in the would suffer injury from the application of the subject matter of dispute, or else the demurrer foreign law; that the consent decree was in the will be sustained. Story's Eq. Pl. secs. 232, nature of a settlement between debtor and a 509, 544; 1 Daniell's Ch. Prac. 347, 348, 361, creditor without notice of change of interest, 362, 617. The King of Spain v. Machado, 4 and the application of a foreign law, to the detRuss. 225, 242; Abrahams v. Plestoro, 3 Wend. riment of the latter, would be as unjust as it would were it permitted by its application to cut out a domestic creditor in favor of a foreign assignee. Story's Eq. Pl. sec. 379; Sugden on Vendors, 460, 537; Picquet v. Swan, 5 Mason, 40; 1 Story's Eq. Jur. sec. 406; Calvert's Equity, 102; Bishop of Winchester v. Payne, 11 Ves. 194, 197; 2 Ves. & Beames, 199, 205; Sugden on Vendors, 538; 3 Atk. 392; Bald. C. C. 45, 296; 1 Wendell's Black. 441, note; Fenwick v. Sears, 1 Cranch, 259; Dixon's Ex. v. Ramsay, 3 Cranch, 319; 1 Kirby, 313; 6 Binney, 353; 1 Harr. & McH. 236; 2 Hayw. 24; 20 Johns. 227; 3 Wend. 538; 2 Kent's Com. Lec. 37, pp. 40, 46, 407, 408, 2 ed.; 1 Mill's Cond. Rep. S. C. 283; 4 McCord. 519, 367; 2 Hill. S. C. 601; 5 Cranch, 302; 12 Wheaton, 213, 356; 5 Howard, 295; 1 Brock. 203, 211; 9 Johns. 64.

1. As to Henry Shultz. His interest is concluded by the decree of 8th May, 1830, entered into by consent of his attorney, who was the attorney of record. Union Bank of Georgetown v. Geary, 5 Peters, 112, 113; Bradish v. Gee, Ambler, 229; 5 N. H. 393; 4 Munroe, 377; 2 N. H. 520; 1 H. Black. 21; 17 Johns. 461; 16 Mass. 396; 7 Cowen, 744.

2. That against this consent decree, no error can be alleged by him. Harrison v. Rumsey, 2 Ves. Sen. 488; Monell v. Lawrence, 12 Johns. 534; Webb v. Webb, 3 Swanst. 658; Brown's Parl. Cas. 244; 2 Daniell's Ch. Prac. 1179, 1180.

3. That he is concluded, by his acquiescence in this decree, from its date to 9th May, 1845, when the present bill was filed.

4. That he is concluded by his letters of attorney to Walker and Fitzsimmons, authorizing them to sell the Augusta Bridge, his consent to such sale, its sale under a power from him, and the subsequent confirmation of said sale by the consent decree.

5. That present bill does not allege that Schultz is not concluded by said decree, but simply affirms that all his interest in the subject matter had passed out of him, prior to the consent given to said decree by the solicitor of him, the said Henry Shultz, and that therefore said decree could not bind his (the said Shultz's) creditors and assignees.

Thus much for Shultz.

5th. As to the other complainant, John W. Yarborough, he has no interest.

1. He was not the assignee of Shultz, under the insolvent law of South Carolina. By the allegations of the bill, it appears he was merely a trustee, appointed by a court of equity in that State to distribute the funds in that court belonging to an insolvent party. Such court did not, and could not, assign to the trustee the right to sue for money at the time in the registry of a foreign tribunal, nor could such 597*] appointment (if it *be deemed that the bridge was unsold at the time) pass real estate situate in Georgia. James's Dig. Laws S. C. 121; 2 Hill, S. C. 468.

Thus much for the interest of Yarborough. 6th. It will be contended that John W. Yarborough must be a privy or a stranger to Henry Shultz. If the former, he is bound by the letter of attorney of Shultz to Walker and Fitzsimmons-his consent to the sale of the bridge and all his previous acts; in a word, if Yarborough was a privy, he comes in pendente lite, and must come in pro bono et malo. On the other hand, if Yarborough be a stranger, he is clearly not entitled to revive the proceedings of another for his own benefit.

Should it be urged again, as it was in the court below, that all that was done by Shultz was done coram non judice, and void, we shall answer:

1. If the proceedings were void (which is by no means admitted), *what was done [*598 by Shultz was good as matter of contract, having received his assent.

2. If the proceedings were void, how comes it complainants seek to revive a nullity?

3. We shall contend that the proceedings were not void, and that the decree cannot be impeached in the manner attempted by the present bill.

7th. We shall argue that the assignee (the only one appointed by the insolvent court), having disclaimed, Shultz, in whom the legal title was, became by implication the trustee of his creditors, and thus all parties were before the court at the time the decree was rendered. Tunno v. Edwards, 2 Cond. Rep. S. C. 674, Treadway's ed.

Sth. If none of foregoing grounds be sustained by the appellate tribunal, the bill to which demurrer has been filed will be viewed in the attitude it professes on its face to hold— that of a bill of revivor and supplement—and it will be contended that, the object of the bill being to revive a portion of the proceedings and to set aside the decree, the demurrer must be sustained, such not being the office of a bill of revivor and supplement. Story's Eq. Pl. secs. 257, 333, 344, 354, 377, 383. 386, 617; Pendleton v. Fay, 3 Paige's Ch. R. 204, 206; 3 Daniell's

2. Admitting, ex gratia, that Yarborough was assignee, duly appointed by an insolvent court, the assignment constituting him such assignee was in invitum in the State of South Carolina, and it could not on that ground operate a transfer of funds in the registry of the court of Georgia. Such assignment was not only in invitum, but was the creature of a local law of South Carolina, and could have no extraterritorial operation to pass property in Georgia. The general right of a foreign assignee to sue may be admitted; but it will be contended, that right is based upon national | Ch. Prac. 1739. comity, and is admitted only when neither the 9th. It will be contended that the present

bill is in truth a bill of revivor and supplement, in nature of a bill of review; but as such it cannot be sustained, because such bill can only be filed within five years after decree rendered, for error of law apparent on the face of the decree, or with leave of the court upon affidavit of new facts recently discovered. Story's Eq. Pl. secs. 404, 405, 407, 409, 412, 417; Webb v. Pell, 3 Paige's Ch. R. 368; Whiting v. Bank of United States, 13 Peters, 6; Dexter v. Arnold, 5 Mason, 308; 10 Wheat. 146; Story's Eq. Pl. sec. 426; Mussell v. Morgan, 3 Bro. Ch. R. 79; Style v. Martin, 1 Ch. Cases, 151; Monell v. Lawrence, 12 Johns. 535; Kennedy v. Daly, 1 Sch. & Lef. 355, 374.

10th. It will be argued that the demurrer must be sustained by reason of the decree of May, 1830, the whole case being res adjudicata. That there was no error in said decree or the proceedings on which it was founded, which could have the effect to impeach its validity.

court entitled to the peculiar respect of these parties complainants, being the highest court of the State of South Carolina, of which State both of the complainants are citizens of whose laws it is the highest evidence. Yarborough and others v. The Bank of the State of Georgia and others, Chancellor Harper's opinion, p. 113, affirmed in the Equity court of Appeals, at Columbia, p. 120. The grounds of the affirmance sufficiently appear in the assignment of errors, pp. 118, 119.

II. It is argued in the bill, that Yarborough was not a party. *Referring only to [*600 the statement in the complainants' bill, which is open on the demurrer, the first remark to be made upon it is, that Yarborough and Shultz are joint complainants, making a joint statement, and uniting in one prayer for relief. If Yarborough really had any equity of his own, and Shultz only the contrary of equity, by whatever name called, it would not follow, it That admitting there was error, it was merely may be admitted, that he would not have a one of pleading, which did not vacate the de- right to sue out an original bill, according to cree, and giving to it the fullest effect, it could his equity. It may be admitted, further, only render the decree voidable, to be set aside that he might have a right to make Shultz on appeal. Story's Pl. secs. 10, 638; 2 Smith's a party defendant. But if they unite in one Leading Cases, 440; 1 Bibb, 262; 2 Howard, right, it must be obvious that the want of equity 599*] 497; Breese, 31; Coxe, 31, 70; *3 Mc- of the one must be available against both, and Cord, 280; Case of The Blaireau, 2 Cranch, is demurrable. See Makepeace v. Haythorne, 203; Jackson v. Ashton, 10 Peters, 480; Kempe's 4 Russ. 244; Redesd. 283, note 2. Lessee v. Kennedy, 5 Cranch, 173; Skillen's There is another remark to be made. In the Ex'rs v. May's Ex'rs, 6 Cranch, 267; McCormick original bill, Shultz and one Breithaupt were v. Sullivan, 10 Wheat. 199; Case of Tobias Wat- complainants, and they proceeded together as kins, 3 Peters, 203; Washington Bridge Co. joint complainants, throughout all the stages v. Stewart et al. 3 Howard, 413; Voorhees v. of the case, including the final decree. BreitBank of United States, 10 Wheat. 473; 6 How-haupt acquiesces in the decree, and, no doubt, ard, 39; Chancellor Harper's opinion in Yar- had the benefit of it. He separates from Shultz, borough, Trustee, and Shultz v. Bank of the and is not a complainant here. Thus, then, in State of Georgia and others, MS.; Ex-parte this bill, which professes to be in the nature of Bradshaw, 7 Peters, 647. That, so far from a bill of revivor, and supplemental bill, one of being a nullity, the decree placed the Bank of the original complainants is laid aside, or rethe State of Georgia, and those claiming under tires, and a new complainant is brought in and them, in the attitude of bona fide purchasers made a party. This is somewhat extraordinary. for a valuable consideration at a judicial sale, and that in favor of them the maxim of omnia presumuntur rite acta will apply. Bennett v. Hamill, 2 Sch. & Lef. 566; Lloyd v. Johnes, 9 Ves. 37; Denning v. Smith, 3 Johns. Ch.

344.

Lastly, it will be argued that, upon the ground of a general want of equity on the part of complainants-the demurrer must be sustained, and the decision of the court affirmed. Megham v. Mills, 9 Johns. 64; 4 Ves. 387; 16 Ib. 467; 18 Ib. 425; 1 Kelly, Geo. 193; Exparte Ruffin, 6 Ves. 119; Ex-parte Williams, 11 Ves. 3; 2 Story's Eq. Jur. 736; Elmendorf v. Taylor, 10 Wheat. 168; Foster v. Hodgson, 19 Ves. 185; Gregory v. Gregory, Coop. 201. Mr. Sergeant, for the city of Augusta, made the following points:

But, further, in the bill there is a want of equity, in two essential particulars. The complainants nowhere deny that Yarborough knew of the pendency of the case in the Circuit Court of the United States for the State of Georgia. Shultz does not deny that Yarborough knew of it. In point of fact, it is very plain that he did know. In point of equity it was his duty to know, and in duty Shultz was bound to inform him. Nothing but a clear and positive denial could be admissible, and that would hardly be credible. Without such an averment, it becomes a fact in this case, that Yarborough did know. That Shultz did know, it is needless to say. If, with his knowledge, Yarborough stood by, and suffered Shultz to proceed with the suit, until a final decree was made, and years after, what pretense of equity can he I. That the decree of the Circuit Court of have? They do aver, both of them, that the the United States, made in the year 1830, is bridge property and rights became vested in final and conclusive, and cannot be appealed Yarborough (which, by the by, is matter of from, reviewed, or set aside, nor questioned; law as to which the highest judicial authority and this appears upon the complainants' bill. in South Carolina has pronounced them to be No court of equity, therefore, can maintainwrong), and they also aver, that no act or consuch a bill. sent of Yarborough or of Shultz could impair the right. But they nowhere aver that there was no such act or consent, as a fact, nor that Shultz did not act under the authority and with the knowledge, consent, and approbation of Yarborough. *They attempt, also, to [*601

The principle thus stated is so familiar and settled, that no authority is necessary for it. One case, however, may be referred to, because the decision was between the same parties, on the very same points, upon full hearing, by a

The

bring in question the authority of the solicitor | plainants must state their whole equity, negawho acted for the complainants; which is a tively as well as affirmatively. They must question not inquirable into here. If it were, deny all such things, within their own knowlit is only necessary to say that the decree went edge, as take away any seeming equity-not down to the Circuit Court, was entered there, argumentatively, or by inference, but distinctnd the money raised from the sale of the mort-ly and positively, as matters of fact. gage property distributed under it, without bridge property was sold, by order of the court, objection then, or for fifteen years afterwards, and with the consent of parties, and converted when, for the first time, Mr. Yarborough comes into personalty. The sale itself, and its efin with Mr. Shultz. If Mr. Yarborough thus fects, will presently be considered more parneglected his duty, the creditors (if there be ticularly, under another head. The objection any) have their remedy against him for his mis- now offered is this: that neither of these comconduct and neglect. plainants denies the receipt of part or parts of the consideration-and neither of them avers that it did not go to the benefit of the creditors. If it did, they can have no equity.

But is it true that Mr. Yarborough, under the insolvent law of South Carolina, acquired such a right as is here insisted upon? What the date of the assignment to him was is not stated in the bill; but it appears in the exhibits to have been on the 18th of December, 1830. The complainants allege that it related back to the 13th of October, 1828. Whether it did so or not is for the present purpose immaterial. The operation of the assignment upon real estate and franchises within the State of Georgia, and then, at the instance of the insolvent himself, in the custody of a court in the District of Georgia, and under the actual exercise of jurisdiction by such court-is it such in law that if the assignee be not made a party, the suit must abate or the jurisdiction be rendered inoperative? This is the question. To establish it would require that South Carolina had attempted such extraterritorial legislation, and the next, that Georgia submitted and agreed to it; but South Carolina did not, and does not so interpret her legislation, nor suffer her citizens so to interpret it. This has been distinctly decided by the highest court of South Carolina. Chancellor Harper's Opinion, 116. This is conclusive authority. It is unnecessary to cite

others.

The fact of the bridge being partly in each State, as to its effect upon the jurisdiction, may be considered as decided by the same case.

But supposing the last objection out of the way, would an insolvent assignment operate in such a suit? It is not meant to inquire whether the assignee, upon his own application, made in due time, might be permitted in equity to become a party, or at all events to give notice of his right in some way upon the record. At law, he may have a suit marked to his use. But bankruptcy does not abate a suit, at law or in equity. 1 Cook's Bankrupt Law, 558, 560. The suit goes on. If the complainant become a bankrupt, his assignee may come in by supplemental bill. It depends upon himself whether he will or not. In either case, the suit goes on. He cannot file 602*] *a bill of revivor. Neither was it the business of the defendant to require or compel him to come in. It was the business and duty, therefore, of Mr. Yarborough himself to come in. If he neglected it, to the prejudice of his cestuis que trust, they must sue him. But he was not a necessary party. Nor is it necessary that he should state the bankruptcy (Redesd. 282, note n), even in a case then pending. It is not an abatement. Cooper's Equity Pleadings, 76, 77, and note.

III. There is another want of equity in the bill, believed to be decisive in itself, against both the complainants. In such a bill, the com

[ocr errors]

IV. So far, the answers in law upon the demurrer apply to the whole case. There are two remaining, peculiar to the city of Augusta, which are to be considered, and each in itself decisive.

First. It appears from the present bill, that the Bank of Georgia instituted a suit upon the mortgage in the State court of Georgia, which was so proceeded in, that there was a decree of foreclosure and sale, and a sale was about to be made under it. In this state of things, the suit in the State court being finally ended, including, of course, a decision upon the validity of the mortgage, Breithaupt and Shultz filed their bill on the equity side of the Circuit Court of the United States for the District of Georgia, praying an injunction in the mortgage case, and certain other cases, and the assumption of jurisdiction in the whole matter. On the 13th day of June, 1821, an injunction was ordered "to stay the sale of said bridge, until the further order of the Circuit Court of the United States should be had thereon."

This injunction was granted to the complainants, who, taking the benefit, were bound by the terms. On the 21st of December, 1821, "with the consent of the parties, complainants and defendants," the Circuit Court appointed Freeman Walker and Christopher Fitzsimmons commissioners to make a sale of the bridge and appurtenances as mortgaged *to the [*603 bank, and required the parties to execute powers of attorney to the commissioners. The complainants executed powers of attorney. Colonel McKinne, who was a defendant, refused. This being reported, the court, on the 13th of May, 1822, "by consent of complainants," ordered a sale. On the 18th of November, 1822, a sale was made, returned, the money brought into court, and the sale confirmed by the court, without exception. At this sale, the Bank of Georgia became the purchaser. The Bank of Georgia, in 1838, sold to Gazaway B. Lamar, for a full and valuable consideration; and in 1840, Lamar, for a full and valuable consideration, sold to the city of Augusta. By the final decree, which was consent decree, the whole of the proceeds were distributed according to the agreement of parties filed on record.

a

Thus, then, it appears that the title of the city of Augusta is derived directly from the sale of the 28th of November, 1822, and gives them all the right which was acquired by the Bank of Georgia, under that sale. Now, this was long before Yarborough acquired any right, even if his assignment could be shown to

relate back to the alleged assignment to ty, showing that, at the time of this suit instiHarrison, which the complainants state to tuted, the complainants had no right at all. have been on the 13th of October, 1828. Up The right they had was derived from legisto the sale, and six years after, the whole in-lative acts of the State of Georgia, both limited terest was in Shultz alone, and there was no such being in existence as Yarborough, assignee. The sale was therefore good.

in time. The time expired, and the respective Legislatures in the year 1840 granted the property and privileges to the city of Augusta. The It has been already shown that the Circuit construction of this in equity has been deterCourt had jurisdiction, the alleged defect in mined in South Carolina, in the case before rethe bill being no defect at all. The sale, there- ferred to. Chancellor Harper's Opinion, p. fore, is a sale by the order of a court of com- | 114. This appears in the complainant's bill. petent jurisdiction, regularly conducted, con- VII. As to the suggestion loosely thrown out firmed by the court without objection, and the in the bill, that the two ends of the bridge proceeds brought into court, and afterwards were in different States, it is not easy to perdistributed by a decree of the court. Can it be ceive how any equity can grow out of it. All necessary, or would it be respectful to the that it would amount to would be a question court, to argue that the purchaser at such a of jurisdiction. But that was waived and lost. sale is protected by the law? There was no It might have been pleaded to the jurisdiction equity of redemption remaining; the whole was of the State Court of Georgia. No such plea sold. There was nothing to come to Yarbor- was put in, and the court made a decree, which ough, or anybody else, by assignment from has never been appealed *from, nor set [*605 aside, nor reversed. In the Circuit Court it was not objected to. All that was asked was to enjoin the sale by the State Court, and take the sale and distribution of the proceeds into the hands of the Circuit Court, and this was asked, consented to, and carried through, by the present complainant, Shultz. And further, the sale and conveyance were made under his power of attorney, so that the present owners hold under his own deed.

Shultz.

But suppose there was a want of jurisdiction. It is not necessary to remind the court that that is only error, and even a reversal for error would not affect the title of a purchaser. Neither is it necessary to say what a singular equity it would be which was founded on his own defect in his own pleadings, especially after so great a lapse of time. The law is well settled. It is a general rule, "that the purchaser shall not lose the benefit of his purchase There are two points which have been touched by any irregularity of the proceedings in a incidentally in the preceding statement, which cause. Sugden, 5th ed. 46. All that the might be insisted upon more at large; namely, purchaser is bound to see is, that, as far as ap- the title of the city of Augusta, as a bona fide 604*] pears upon the face of the *proceed-purchaser, and the length of time. The bill ings, there is no fraud in obtaining the decree. It is not pretended here that there was any fraud. The complainants do not allege that there was. There is no pretense of that kind

set up.

Second. If the want of jurisdiction in the Circuit Court, for the reason alleged, were made out (as it is not), still Shultz, and those claiming under him, would be estopped in equity from disputing the title derived from the sale. Yarborough, as has been seen, derives from Shultz, by an assignment not claimed to be earlier than six years after the sale, and is affected by all that was previously done precisely as Shultz was. He took, subject to whatever equity or right there was then existing.

V. The complainants attempt in their bill to say something about notice. They do not say that the Bank of Georgia had any notice. So far, they must admit the title of the Bank of Georgia to be, on this ground, unassailable. The title of the Bank, they admit, was conveyed to Mr. Lamar, and by him to the city of Augusta. The Bank of Georgia does not dispute it. One is at a loss to conceive whence and how these complainants get any right to inquire into the consideration. If there were a defect in the title of the bank, the question of consideration and notice might arise-but not here. If the title of the bank was good, so was the title of Mr. Lamar, and so is the title of the city of Augusta. The saying about notice (for it cannot be called an averment) is altogether defective and insufficient, for want of explicitness and intelligible particularity.

states that the purchase was made on the 21st day of January, 1840. This was upwards of seventeen years after the sale. It was upwards of eleven years after the final decree, which placed it beyond the reach of an appeal; beyond the reach equally of a bill of review, which has the same limit at least as an appeal; and, in truth, unassailable in any way, in the same jurisdiction; while by its own nature it was protected from being questioned collaterally. What can be meant by the alleged notice therefore, it is impossible to conceive. Several more years elapsed, as has been seen, before the complainants themselves awakened to the conciousness that there was anything to take notice of. They slumbered on until 1845, before they commenced this suit, giving no sign but of profound acquiescence in what had been done. What notice had the city of Augusta to the contrary? This is the grossest laches, or worse. Either destroys all pretense of equity.

There might be added some points upon the form of proceeding here adopted. If they should be deemed necessary, they will be presented in a separate paper.

Mr. Justice McLean delivered the opinion of the court:

Henry Shultz and Lewis Cooper, in the year 1813, obtained from the State of South Carolina a charter for a bridge over the Savannahı River, opposite the town of Augusta, in Georgia, for the term of twenty-one years; and in 1814 the State of Georgia granted to them a charter for the term of twenty years. In 1816 VI. There is still a further want of equity, Henry Shultz and John McKinne, being the or, more precisely speaking, a negative of equi- 'joint owners of the bridge, formed a partner

« ForrigeFortsett »