therewith were prepared for biddings, and at the time of the execution of those contracts, Charles P. Manning was the chief engineer, and John Ellicott the assistant engineer, of the railroad company; that, by reason of Manning's absence during long periods in Ohio, the preliminary arrangements for the biddings, the interviews with the parties proposing to bid, the construction contracts, and the general superintendence of the work, for some months after its commencement, was left almost entirely to Ellicott, in whom the appellant and Manning had the fullest confidence; that Ellicott remained in that position for about a year, when he left appellant's service because of differences between him and Manning, who had then returned to Baltimore; that there was no just foundation for any of the claims of Dull allowed by the arbitrators; that Ellicott "was presented and sworn by the arbitrators as a disinterested witness on behalf of the said Dull, and upon his testimony mainly, if not entirely, the said arbitrators allowed the pretended claim of the said Dull, based upon an allegation of the change of the model for the construction of the said tunnel, and also other claims made by the said Dull, to which change said Ellicott testified, although in fact no change was made of the execution of said contract;" that Dull himself was sworn and examined before the arbitrators, and testified, among other things, that he was the sole surviving contractor, and that the only contractors had been said Andrews, Wiley, and himself; that it had learned only recently before the bringing of this suit that, in an action in the circuit court of the United States for the Eastern district of Pennsylvania, Dull admitted, under oath, that he and Wiley had two secret partners in the construction contracts, "who retained their interests until the completion of the work, and during said controversy, one of them being Samuel M. Shoemaker, and the other being the said John Ellicott;" that Dull, on the same occasion, admitted that "he had paid large sums to the said Ellicott on account of his interest in the contract, but had not yet fully paid him;" that Ellicott received from Dull and Wiley on that account at least $18,000. The bill charges that the amount awarded to Dull was "so awarded by virtue of the said contracts, and by means of the covinous and fraudulent conduct of the said Dull and the said Ellicott;" that the said construction contracts and the said arbitration contract were obtained from the company "by the fraud, covin, and deceit of the said Dull and Ellicott, with the knowledge of the said Samuel M. Shoemaker;" and that the said contracts, and said award and judgment, are in equity void as to the company.

Thos. W. Hall, Charles Marshall, Bernard Carter, and William A. Fisher, for appellant. I. Nevett Steele and A. W. Machen, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The precise relations which Ellicott held to the railroad company and to the work done by the contractors, and which existed between the contractors, Ellicott, and Shoemaker, are not accurately or fully stated in the bill. It is satisfactorily shown that while Ellicott, as Manning's assistant, conducted preliminary surveys, located the line of the tunnel and the railroad, and aided in the preparation of specifications, his work, in that respect, was done before the letting to the contractors, and was approved and adopted by the chief engineer. There is no ground to suspect, much less believe, that, in these preliminary matters, any undue advantage was given, or was intended to be given, by Ellicott to the contractors. Before the proposals were received, and before the advertisement for letting, Manning returned to Baltimore, and thereafter personally performed the duties of chief engineer. He was present at the opening of the bids, and personally examined the proposals. In the letting of the work, the company's officers acted upon their own judgment, and without suggestion or advice by Ellicott. The latter had no business re

lations with Dull, Wiley, or Andrews, either when they bid for the work or when it was let to them.

Some time after the company had made its contracts with Dull, Andrews, and Wiley, the latter proposed to Shoemaker, a gentleman of large means, that he should have an interest in the profits to be made, in consideration of his furnishing some money in the nature of capital. Shoemaker, having the utmost confidence in Wiley's judgment and integrity, verbally accepted this proposition. At an early period in Shoemaker's life he had received valuable assistance from some of the older members of Ellicott's family. This circumstance caused him to feel kindly to Ellicott; and when the latter, at the close of the recent war, returned with his family to Baltimore, laboring under serious financial embarrassment, Shoemaker had a strong desire to sustain him in his efforts for a livelihood, and did assist him in various ways. In his answer, Shoemaker states: "And when the said Wiley, unexpectedly to this respondent, proposed to allow him an interest of one-third in the profits from the said contract, this respondent, without attempting to estimate the probable amount of such share of profits, and, in fact, wholly uncertain whether there would be any profits or not, mentioned the fact of Wiley's promise aforesaid to said Ellicott, and at the same time told him that if anything came of it he would let him, Ellicott, have one-half of what this respondent should so receive. There was no contract or agreement of any kind between said Eilicott and this respondent on the said subject. Whatever benefit there might be in the offer or promise to share what might never exist, it was made by this respondent, and, as this respondent is well assured, was accepted by the said Ellicott, merely as an act of kindness on this respondent's part, without one thought of any relations existing between the said Ellicott and the Union Railroad Company. Had this respondent been base enough to endeavor to bring about a breach of trust on the part of one in the service of the complainant, as imputed in the bill of complaint, it would have been impossible for him to have thought of presenting unworthy inducements of this sort to a gentleman of the unblemished reputation of Mr. Ellicott, an intimate friend of this respondent himself, and one for whom, on account of his character and personal qualities, he entertained and had manifested a high and sincere regard." These statements are substantially repeated in the deposition of Shoemaker, and we do not doubt their accuracy. Ellicott, referring to Shoemaker's offer, says in his answer: "This respondent thanked the said Shoemaker for his kindness, and accepted it without imagining that there was anything in the relation he temporarily occupied to the said chief engineer to make it improper, or even questionable so to do."

Under the foregoing arrangement between Shoemaker and Ellicott, the latter received different sums from the contractors, aggregating $13,698.14. His employment by Manning was in the fall of 1870. It continued only for about a year, and ended nearly two years before the completion of the work in question. So far from the interviews with parties proposing to make bids, the contracts founded upon the accepted bids, or the general superintendence of the work for some months from its commencement being left almost entirely with Ellicott, (as alleged in the bill,) he swears in his answer-and the evidence is substantially to the same effect-that Manning returned from Ohio before the letting of the work; approved the specifications; was present to give all requisite information to persons making inquiries with a view to proposals; gave such information, and performed the whole duty of chief engineer in connection with the making of the contracts; had the sole and exclusive superintendence of the work from the very commencement, the immediate direction thereof being devolved upon Mr. Kenly, the resident engineer; and that he, Ellicott, had no charge of it whatever. He also states in his answer— and the statement is sustained by the evidence-that he "gave no instructions to the contractors, made no measurements or estimates of any of their work,

exercised no authority over them, and had no part at all in the construction of the said railroad and tunnel, his whole work being either preliminary to the advertisement for proposals or office work wholly unconnected with the contractors or their compensation."

Taking the whole evidence together, the utmost which can be said is that Ellicott acquired or accepted an interest in the profits of construction contracts that were made while he was in the employ of the chief engineer. But as he had no such interest when the contracts were made; as he did not represent the company in the making of the contracts; and as he had no connection, while in the service of the company or of its chief engineer, with the supervision and control of the work under the contracts, or with the ascertainment of the amount due the contractors, it is not perceived that his mere acceptance of part of the profits awarded to Shoemaker affords any ground in equity for setting aside either the award of 1876 or the judgment entered pursuant

thereto.

The complainant attaches great consequence to the fact that Ellicott was presented and sworn before the arbitrators as a disinterested witness on behalf of Dull, and contends that upon his testimony mainly, if not entirely, the arbitrators allowed the claim of Dull, based upon an allegation in the change of the model for the construction of the tunnel, to which change Ellicott testified. It is sufficient, upon this point, to say that there is an entire failure to discredit the testimony of Ellicott before the arbitrators. There is nothing to show that he did not state what he believed to be true, and according to the weight of evidence, all that he stated before the arbitrators was, in fact, true. Besides, it is satisfactorily shown that a very small part of the sum awarded to Dull was on account of the claim based upon the alleged change of the model for the construction of the tunnel. Under these circumstances, the fact that the arbitrators were unaware of Ellicott's arrangement with Shoemaker affords no ground to set aside the award.

The relief which the appellant seeks is entirely wanting in equity. The company has had possession of the work done by the contractors since its completion in 1873. The contracts in question have been fully executed, and restoration of the parties to their original rights has become impracticable, if not impossible. Nevertheless, the company, holding on to all it has received, asks the court to declare void not only the award of 1876, the judgment of 1877, and the unpaid notes given in payment of that judgment, but the original construction agreements of 1871, and give a decree for a return of all that it paid in cash or on the notes guarantied by the Canton Company; and this, without suggesting fraud upon the part of the arbitrators, or proving that it has been injured, pecuniarily, by anything that either the contractors or Ellicott did or said. The case comes within the rule laid down by this court in Delaine Co. v. James, 94 U. S. 207, 214, where it was said: "Canceling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them." The decree is affirmed.

RICHARDS v. MACKALL.
(January 9, 1888.)

LACHES-FAILURE TO ENFORCE TITLE.

Plaintiff's father made a verbal gift to him of a certain lot, and plaintiff entered into possession and began improvement. Plaintiff also purchased a tax deed of the premises, but did not have the deed recorded. Afterwards a part of the lot was sold, under execution, for plaintiff's debts, and bought by the defendant. Plaintiff filed a bill to enjoin the sale, alleging that he had an equitable interest only by vir

tue of the verbal gift. This action was not prosecuted. Ten years after the father gave plaintiff a deed of the lot, and 12 years after the sale plaintiff brought action to set aside the sale. Held, that the plaintiff having held the legal title to the lot under his tax deed at the time of the sale, he was guilty of gross laches in sleeping on his rights for 12 years, and is not entitled to any relief in equity.

Appeal from the Supreme Court of the District of Columbia.

This case is the one referred to in the last clause of the opinion of this court in Mackall v. Richards, 112 U. S. 369, 376, 5 Sup. Ct. Rep. 170. In the year 1859, Brooke Mackall, Sr., made a verbal gift to his son, Brooke Mackall, Jr., of lot 7, in square 223, in the city of Washington; the father, at the time, promising that he would thereafter make a formal conveyance of the property. The son, relying upon such promise, took possession of the lot, and commenced the erection of a building thereon at the south-west corner of New York avenue and Fourteenth street. The lot was of irregular shape; its line on Fourteenth street being about 152 feet long, and on New York avenue about 160 feet. The marshal of the District of Columbia advertised, in 1869, that, in virtue of three writs of fieri facias and one writ of venditioni exponas, issued from the clerk's office of the supreme court of the District, he would, on a named day, sell, at public sale, for cash, "all defendant's right, title, claim, and interest in and to part of lot 7, in square 223, in the city of Washington, D. C., beginning at the north-east corner of said square, and running thence south, 44 feet; thence west, to the west end of the lot; thence, in a northerly direction with the west line thereof, to the north line of said lot; thence, with said north line, to the place of beginning, together with all and singular the improvements thereon, seized and levied upon as the property of Brooke Mackall, Jr., and will be sold to satisfy executions Nos. 3,477, 3,478, 4,117, and 3,708, in favor of Matthew G. Emery, George H. Plant, A. & T. F. Richards, and Owen & Wilson." Before the sale took place, Mackall, Jr., brought a suit in equity against said execution creditors and the marshal. He stated in his bill that, although he was equitably entitled to the whole of lot 7, under the before-mentioned gift of his father, he had not received a conveyance therefor, and consequently did not hold the legal title. Referring to the description of the property as given in the levies, and in the advertisement of sale, he alleged that it was both an indefinite and an impossible description, and that a sale in the mode proposed would prejudice his rights in the remainder of the lot. He therefore prayed that the sale be enjoined. The execution creditors severally answered, each averring that the legal title to the property was in Mackall, Jr., in virtue of a sale, in 1862, to one Hyde, for taxes assessed upon it by the corporation of Washington, and that Mackall, Jr., as assignee of the purchaser, had received and then held a tax deed for the lot, dated October 6, 1865. It does not appear from the record that any motion for an injunction was made, or that an injunction was issued, or that any further steps were taken, in that cause, beyond the filing of the bill and answer. The sale under the before-mentioned executions, levies, and advertisement, occurred June 13, 1870. The present appellant became the purchaser at the sum of $2,500, all of which, except $646.89, was required to pay judgments prior in time to that recovered by A. & T. F. Richards. On the seventh of October, 1870, he received a deed containing the following description of the property conveyed: "Part of lot 7, in square 223, beginning at the north-east corner of square, and running thence south, 44 feet; thence westerly to the west end of the lot; thence, in a northerly direction with the west line thereof, to the north line of said lot; thence with said north line to the beginning." This deed was duly recorded February 3, 1871. Richards took possession under his purchase, and expended large sums upon the property in order to make it available. On the second.of April, 1873, Brooke Mackall, Sr., (his wife uniting and relinquishing her contingent right of dower,) made a conveyance of lot 7, in square 223, to Joseph B. Hill, in trust,

to permit the grantor to hold, occupy, and enjoy the premises, with the rents, issues, and profits thereof, and to convey them to such persons, and upon such terms, as the grantor might in writing direct, and with authority in the latter to incumber the premises, or any part thereof, as he or his heirs and assigns might direct. This deed was recorded Septemer 29, 1873. When it was made Mackall, Sr., knew that his son held the tax deed of 1865; indeed, the tax deed was made to the son by the direction or procurement of the father. On the thirtieth of January, 1874, by a deed in which Brooke Mackall, Sr., and Joseph B. Hill, individually and as trustee, united as grantors, lot 7, with all the buildings and improvements thereon, and all the rights appertaining thereto, was conveyed to Leonard Mackall, in trust, to hold the same for the use and benefit of Brooke Mackall, Sr., "and subject to his absolute control and disposal, and to sell and dispose of the same as the said Brooke Mackall, Sr., may in writing direct and require." This deed, for some reason, was not recorded until June 3, 1878. By deed of February 27, 1880, Brooke Mackall, Sr., conveyed the same lot, including his interest in a pending claim for mesne profits against Alfred Richards, together with all the buildings and improvements thereon, and with all rights in law or in equity appertaining thereto, to Brooke Mackall, Jr., his heirs and assigns, forever, for their sole use and benefit. Mackall, Sr., died March 7, 1880. The present suit was brought by Brooke Mackall, Jr., on the eleventh day of April, 1882,-nearly 12 years after Richards' purchase,-for the purpose of having the sale of June 13, 1870, the conveyance of October 7, 1870, and all transfers depending thereon, adjudged to be void and of no effect. The sale and conveyance are attacked as invalid upon the following grounds: The price paid for it was grossly inadequate; the executions on which the sale was made were issued without authority, other previous executions not having been returned; the judgments on which the executions were issued were personal judgments only, while the executions directed the sale of specific property described therein; the executions did not sufficiently describe the nature of the debtor's interest in the property, whether legal, equitable, or otherwise, nor define its boundaries, so that it could be identified, nor conform to the description of the property as given in the declarations; the court, in two of the cases, was without jurisdiction to render any other than personal judgments, the proper tribunal for the enforcement of mechanics' liens being a court of equity; that Brooke Mackall, Sr., held the legal title to the property, and was not a party to any of the said suits; that a sale of an equitable interest in real estate could not be made at law, whether for the enforcement of a mechanic's lien or otherwise; that at the time of the sale, Mackall, Jr., had no interest in the property, except that arising from a verbal promise to convey and his action thereon; that the alleged levies and sale were made long after the return-day of the writs; that the executions were issued and delivered to D. S. Gooding, who was then the marshal of the District of Columbia, whereas the advertisement, sale, and conveyance purport to have been made by Alexander Sharp, who was marshal at the time of sale; that the advertisement of sale does not sufficiently describe the property, nor the nature of the interest to be sold, or agree with the other proceedings; and that the conveyance by the marshal does not conform to any of the proceedings in said causes. The court below, in special term, dismissed the bill. But that decree was reversed in general term, the sale and conveyance by the marshal to Richards, and all transfers depending thereon, being set aside as void and of no effect. As between the parties to the suit, the appellee was declared to be the owner of the property, with a right to have the legal title conveyed to him, upon his paying appellant's claim as judgment creditor, as well as his disbursements in connection with said premises. The ground upon which the court below, in general term, proceeded was that "on account of the patent and palpable ambiguity and uncertainty in the description of the property, both in