author: Mr. Justice Story

text:
    Paulina S. Whiting, and Helen B. Whiting, heirs at law of Ruggles Whiting, deceased, James Richardson, administrator of Ruggles Whiting, and Enfield Johnson, and Gabriel J. Johnson, Appellants, vs. The Bank of the United States.
    According to the course of practice in the Courts of the United States, in chancery cases, an original decree is to be deemed recorded and enrolled, as of the term in which the final decree waa passed. A bill which seeks to have alleged errors revised for want of parties, or for want of proper proceedings after the decree against his heirs, after the decease of one of the parties, is certainly a bill of review; in contradistinction to a bill in the nature of a'bill of review; which lies only where there has been no enrollment of the decree.
    Ari original bill, in the nature of a bill of review, brings forward the interests affected by the decree, other than those which are founded in privity of representation.
    In England, the decree always recites the substance of the bill and ans ver, and the pleadings, and also the facts on which the Court founds its decree. But .n America, the decree does not, ordinarily, recite these, and, generally, not the facts on which the decree is founded. But with us, the bill and answer, and other pleadings,- together with the decree, constitute what is properly considered as (hie record.
    The hill of review must be founded on some error apparent upon the bill, answer, and other ■ pleadings, and decree; and a party is not at liberty to go into'the evidence at large, in order to establish an objection in the decree founded on the supposed mistake of the . Court in its own deductions firom the evidence.
    Wo party to a decree can, by the general principles of equity, claim a reversal, of a decree • upon a bill of-review, unless he has been aggrieved by it; whatever may have been his rights to insist on the error at the original hearing, or on an appeal.
    ■ decree of foreclosure of a mortgage, and of a sale, are to be considered as the final decree in the sense of a Court of Equity; anti the proceedings on the decree are a mode of enforcing the rights of the creditor, and for the benefit of the debtor. The original decree of foreclosure is final on the merits of the controversy. If a sale is made after such a decree, the defendant not having appealed as he had a right to do, the rights of the pur- ■ chaser would not be overthrown or invalidated even by a reversal of the decree.
    After a decree of foreclosure of a mortgage and a sale, and the death of the defendant tákes place after the decree, it is not necessary to revive the proceedings against the heirs of the deceased party before a sale of the property can be made.
    APPEAL from the Circuit Court of the United States for the District of Kentucky.
    The case as stated in the opinion of the Court, was as follows:—
    “ This is the Case of a bill, purporting to be. a Ml of review. The substantial facts, as they.appear on the. record, are as follows.: — - Gabriel J. Johnson, being the owner in remainder of a five acre lot, No. 9, in Louisville, Kentucky, of which his mother, Enfield Johnson, was tenant for life, under the will of his father, and being also the owner in fee by another title of another piece of land adjoining the five acre lot, a part of the slip No. 2, on the 12th day of November, A. D. 1818, conveyed the same in mortgage to James D-Breckenridge, to secure .the latter for. his endorsements of three certain notes of. Johnson to Ruggles Whiling, each, for four thousand dollars, and for any other notes and contracts which Breckenridge should thereafter make, execute, accept, or endorse for the benefit of Johnson. Afterwards, on the 9th' day of August, A; D. 1820* Johnson & Breckenridge, as his. surety, being indebted to the Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars and thirty-seven cents, arrangements were made between them and Whiting, by which.Whiting assumed the payment of the same debt, and gave hja. lióte tnerefor, to the bank accordingly ; and as ’security for the due payment thereof, Johnson and his mother Enfield Johnson, Breckenridge and Whiting, on'the same day, executed a mortgage of the five acre lot and slip of land above mentioned to the Bank of the United States, reciting, among other things, the foregoing arrangement. The condition of.the mortgage, among other things, stated, that it was agreed by the parties, that after the satisfaction of the said demands due by Whiting to the bank, and by Gabriel J. Johnson to Whiting, the estate or the residue thereof^ or any surplus in money, by the sale thereof, should be paid or conveyed to Enfield Johnson, or her assigns. The mortgage also contained a stipulation for the sale of the premises, to meet the payment of the debt.due to the bank. In April, 1823, the debt due and thus secured to the bank remaining unpaid, a bill for a foreclosure and sale was brought by the bank, in the Circuit Court of the United States for the District of Kentucky; and to that hill Gabriel J. Johnson, Enfield Johnson, and Whiting were made parties. -But Breckeriridgé was not made a party. At the November term of the Circuit Court, A. D. 1826, a decree of foreclosure of all the" equity or right of resumption of the defendants in the mortgaged premises, was passed; and a further decree, that the premises should be sold by commissioners. The sale took place accordingly,; the bank became the purchasers, and the sale was confirmed by the ■ Circuit Court, at May term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on the 26th of February, 1827, Whiting died in Massachusetts, leaving the plaintiffs in the present bill, Paulina Whiting, and Helen B. Whiting, and one L. R. Whiting (since dead without issue) his children and heirs at law — who were then infants under age; and the youngest, Helen, did not come of age until 1831..
    The present bill is brought by Paulina Whiting and Helen B. Whiting, by 'James Richardson, administrator of Ruggles Whiting, and by Gabriel J. Johnson and Enfield Johnson, against the Bank of the United States: and after stating the proceedings in the original suit upon the mortgage, and that the sale was made at a great sacrifice of the property, it relies on the following grounds of error in the proceeding, decree and sale in the original suit. 1. That it was irregular and erroneous to entertain the bill, and pronounce the decree for foreclosure and sale, without Breckenridge being made a party defendant. 2. That it was irregular and erroneous to sell the’ property mortgaged without a revival of the suit. against the heirs of Whiting. 3. That it was unjust and oppressive to sell in the manner and at the price at which the sale took place.
    . The answer of the bank denies all equity in the plaintiffs, and insists that die decree and sale were fair and just. It also denies that Whiting and Breckenridge had any title to th? propertv; and insista that they joined in the mortgage, merely to complete the arrangements made between Johnson and themselves. It also denies that, the death of Whiting was known at the time of the sale. It states that the property was, after the purcha.se by the hank, improved, and parts thereof sold to bona'fide purchasers, for-valuable considerations; and by reason of the improvements, and the extension of the city, parts of the grounds so sold are now among the most beautiful and densely built parts of the city. The answer- also states, that Whiting died insolvent and deeply indebted to the hank, by certain other judgments and notes.”
    The case was argued by Mr. Underwood, at. the -bár, and by a printed argument .submitted by Mr. Lovering for the appellants'; and by Mr. Serjeant for the appellees.

      T or the appellants, -Paulina and Helen Whiting, if was contended, they have an evident interest in the-land.. Being all infants -at the death of their father, in February, and at the rendition of the last ■ decree in May, they are within the exceptions of every statute of limitations operating by direct or remote analogy on this case; -and. their rights being joint, the disabilities, must be removed before the statute can run. In England the limitation to- bills, of review is twenty years, and by the law of the ■ United States fives years, on writs of error; which furnishes the criterion in this case.. Act of the Legislature of Kentucky, bf 1816. May vs. Marsh, 2 Litt. Rep. 148
    The interest'of Whiting in the land was also certain and evident, and material. The title- to the hank was his only security for- a.part,at least, of- his' large -demand, and the only- consideration for his' assumption of the debts of -Johnson to the- bank. • The .hopeless insolvency.óf Johnson'rendered the security of the'"land the only means of indemnity for his'responsibility for the debt of teii thousand, dollars-? — the hank held the property as a trustee for his benefit.
    The proceeding "in the original causé-was-to be regulated by the laws of Kentucky; and as Breckenridge‘had an interest in the pro-. perty, he should’ have -been made a party.. The record shows' the existence of this interest,'' and' he has been deprived of it by the ■ decree of tbe Cburt; -and yet no notice of the proceedings has been.. given to him.
    By the laws of Kentucky the assignee of a promissory, note is. liable to the assignor, .if due diligence ¡has not been used to collect the note; and Brackenridge was the endorser of notes given -for a steamboat. -Whiting had proceeded oii-the notes against Johnson^ and. had obtained. judgment - against Johnson. He then made' an - agreement'to discharge Johnson, holding Breckenridge liable on his endorsements.' The mortgage was tbe means of-indemnity to Breckenridge, and for this reason he was a • necessary-party in the proceedings to foreclose. Any balance which should remain after paying the debt to the bank, would have been applied for the relief of Breckenridge, on the notes of Johnson. Morrett vs. Western, 2 Vern. 663. Haines vs. Beach, 3 Johns. Ch. Rep. 456. 4 Ch. Rep. 605. Ensworth vs. Lambert, 6 Ch. Rep. 450. 4 Con. Rep. Su. Ct. U. S. 190. Caldwell vs. Taggart, 4 Peters, 190. Mayo vs. Tompkins, 6 Mun. 520.
    The sale of the property after .the decree of foreclosure was irregular, without reviving the proceedings against the representatives of Whiting. His death before the sale made it as necessary to make his heirs and representatives parties.'as it was originally necessary to make Whiting a party. If it is said, that there was a right to sell-under a levy made before the death of the defendant; a number of authorities sustain the contrary position.
    The party defendant has a right to come in after a sale, and object to it; if any thing in the proceedings has been irregular or illegal. If the return to the order of sale had stated that all the pa ’- ties were dead, would the Court have confirmed the sale ? Bytne laws of Kentucky the defendant has a right'to point out what part of the estate-may be sold under an order of sale. The necessity of the presence of the defendant at the sale, is therefore apparent. Both Breckenridge and Whiting were dead at the time of the sale, and yet the saie was confirmed. ■ The decree confirming the-sale should therefore be opened, and the parties now before the Court should be allowed to. come in and redeem. Allen vs. Belcher et al. 2 Hen. & Mun. 595. Also Mackey vs. Bell, 2 Mun. 523. Lovell vs. Dana, 2 Mun. 367. Forman vs. Hunt, Ibid, 622.
    The interest in the complainants is sufficient for a bill of review. 4 John J. Marshall’s Reports, 500. This case shows that a bill of review will lie in such a matter as that now presented to the Court.
    -This case will be decided by the cases which have been decided in the Courts of Kentucky. In Kentucky bills of review are allowed for errors on the face of the record, and not in cases where the error is in the decree only. In Kentucky a bill of review lies for any error in-the proceedings injthe. case. .There the decree does not, .as in England, set -forth the whole matter in the cause; and to deny a bill of review on the principles which apply to the cases in the Court of Chancery in England, would be to deny it altogether..
    If this is the law,- and it will not be denied, the record exhibits such errors as may be brought before the -Court by a bill of review. Brackenridge was a necessary party. He had a deep interest in the proceedings against the land.
    No exception will lie to the bill on the ground of the interference of the statute of limitations. It was filed within five years after the sale, and the termination of the minority of the children of Whiting. The law of the United States saves the rights of minors.
    While it is admitted that no case has béen cited in which a bill of review has been sustained, principally like that now before the Court; -yet it is claimed that in such a case a writ of error would lie if the proceedings had been at law; and the bill of review in a chancery case is analogous to a writ of error in a ease at law. The argument for the appellees ts, that if in the course of the proceedings to sell the property, exceptions were not taken to their regularity, they cannot now he taken notice of by a bill of review. . Yet writs of error are maintained in suits on the ground of want of parties.. The practice is to send back the proceedings, and allow amendments to be made which will bring the merits of the case forward. This .is a similar case. 6 John J. Marshall’s Rep. 197.
    The heirs may come in and show they were not parties to the sale, and may examine the manner in which it was conducted. This is essential to the proceedings in the case.
    It is said that the decree is final on the. order of foreclosure of the mortgage; but thisus erroneous. The proceedings in the cáse are not final until the property is sold, and the proceedings of sale con.firmed.by the Court. The equity of redemption continues, until the salé of the property and the ratification of the sale. A party who has a' decree of foreclosure in his favour, in proceedings on a mortgage, cannot hold the property under the decree. By the decisions of ,the Courts of Kentucky, a.sale of the mortgaged premises must be made*; and the residue of the proceeds, of the sale, after payment of the debt, must be paid to the mortgagor. Suppose part of the estate sold and the mortgage satisfied; does not the residue belong to the mortgagor ? This shows a continuing interest in the property mortgaged, until the proceedings of sale are completed.*
    Mr., Serg ant for the appellees.—
    . The objections by the appellants are to the sale of the property. The first matter to be noticed is, that the interests in the land sold under the decree of foreclosure, have essentially changed: The property has been sold without warranty, and large and expensive buildings have been erected upon it. This is stated in the answer of the Bank of the United States to the complainant’s bill; and in the agreed statement of facts.
    It is admitted that the bank pulled down a plain brick dwelling-house, as appears in said will, No. 2, on said lot where Fifth Cross ..Street,. if extended, would run and extend said street to Walnut Street, and they sold, as stated in the answer, to different persons, and the improvements .stated of the Roman Catholic church and others, extensión of the str'eet and other improvements have been made and put upon the ground, and that the persons named are living on the lot aforesaid.”
    All these persons have expended large sums in the improvement of the property, and the question before the Court is, whether all that was done in 1827 shall be undone ; and the parties be permitted to come in and redeem. This is what is asked. It is not the course of a Court of equity, on a bill, of review, to bring into review whát has been decided. If such a bill were allowed, if would be in the nature of an answer, and bring again into controversy all that had been passed upon by the Court... The res adjudicata, is in equity as at law. The rule must be the same.
    There are bills of review in the nature of original bills, as when a person has not been made a party to the original proceedings, and may be affected by them. Mr. Breekenridge might in this case have come in, if he had been injured.
    There are two other descriptions of bills of review in England. 1. A bill filed after the original bill has been enrolled, or there has been a final decree. 2. A hill filed when the decree has not been made, and before enrollment.
    The error must be apparent on the face of the decree, and the Court cannot go into the evidence in the original proceedings. Story’s Equity, 334. Lord Eldon in Perry vs. Philips, 17 Vez. 178. No persons but parties or privies can have a bill of review. Gilbert, For. Rom. 186. Slingsby vs. Hale, 1 Chan. Cas. 122. And none but those who halve an interest in the proceedings can maintain such a bill; nor unless they suffer from the particular error assigned, or pointed out in the decree. Webb vs. Pell, 3 Paige, 368. Mitford (by Jeremy), 205. Other persons in interest, and privies in title or estate, who are aggrieved by the decree, may have an original bill in the .nature of a bill of review, so far as their own interests are concerned. Wyatt, 98. 100. Mitford, 92.
    ■ Opportunities, during the' proceedings on a bill 'in chancery, to interpose and correct errors, are. always afforded, as by demurrer or by plea, when proper parties may be introduced! 16 Vez. 325. Mitford, 180. Cowper, 185. 3 Paige, 222. 2 Paige, 281. The Court will then decide on the ■ matters presented, and.if necessary there may be an-amended bill, ox. a supplemental bill. But such a decision .would not be an error in the decree to entitle to a bill of review. .This-is much stronger where a party has been omitted and does not complain; as in the case before the Court, in which Breckénridge is not a party.
    But in addition to all these matters, Whiting had not a title to the property, or any interest in it. It had never been his, and the proceeding tó foreclose against him, divested every equitable claim.lH could set up. The decree of foreclosure was in the lifetime Whiting, barring him and his heirs, and the statute of limitations began to run from the time of the decree. An execution levied does not stop by the death of the party. The sale did not require as a prerequisite to its proceeding and completion, that the heirs should be brought in.
    Finally. The bill of review is- barred by length of time. Elmendorf vs. Taylor, 10 Wheat. 150. More than-five years have elapsed from the decree to the .filing of the bill of review. The statute, as has been said, began to run its course in the life of Whiting; and it was not stopped by disabilities occurring on his death.
   Mr. Justice Story

delivered the opinion of the Court.

This is the case of .a bill, purporting to be a bill of review. The substantial facts, a? they appear on the record, are as follows: Gabriel J. Johnson being the owner in remainder of a five .acre lot, No. 9, in Louisville,.Kentucky, of which his mother, Enfield Johnson, was tenant for life, under the will of his father, and being also the owner in fee, by another title, of another piece of land adjoining the five acre lot, (a part of the slip No. 3,) on the 12th day of November, A. D. 1818, conveyed the same in mortgage to James D. Breckenridge, to secure the latter for his endorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes and contracts which Breckenridge should thereafter make, execute, accept, or endorse, for the benefit of Johnson. Afterwards, on-the 9th day of August, A. D. 1820, Johnson, and Breckenridge, as his surety, being indebted to the Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars and thirty-seven .cents, arrangements were made between them and Whiting, by which Whiting assumed-the payment of the same debt, and gave his note-therefor to the bank accordingly; and as security for the due payment thereof, Johnson and his mother, Enfield Johnson, Breckenridge, and Whiting, on the same day executed a mortgage of the .five acre lot and slip of land above mentioned, to the Bank of the United States, reciting, among other things, the foregoing arrangement.

The condition of the mortgage, among other things, stated, that it was agreed by the parties, that after the satisfaction of the said demands due by Whiting to the bank, and by Gabriel-J. Johnson to Whiting, the estate, or the residue thereof, or any surplus, if money, by the sale thereof, should be paid or conveyed to Enfield Johnson or her assigns. . The mortgage also contained a stipulation for the sale of the .premises, to meet the payment of the debt due to the bank. In April, 1823, the debt due and thus secured to the bank remaining unpaid, a bill for a foreclosure and sale was brought by the bank, in the Circuit Court of the United States for the District of Kentucky; and to that bill, Gabriel J. Johnson, Enfield Johnson, and Whiting were made parties. But Breckenridge was not made a party. At the November term of the Circuit Court, A. D. 1826, a decree of foreclosure of all' the' equity or right of redemption of the defendants in the mortgaged premises was passed; ana a further decree, that the premises should be" sold by commissioners. The sale took place accordingly; the bank became the purchasers; and the sale was confirmed by the Circuit Court, at the May term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on the 26th of February, 1827, Whiting died in Massachusetts, leaving the'plaintiffs in the present bill, Paulina Whiting, and Helen B. Whiting, and one L. R. Whiting (since dead without issue) his children and heirs at law; who were then infants under age; and the youngest, Helen, did not come of age until 1831.

The present bill is brought .by Paulina Whiting and Helen B. "Whiting, by James Richardson, administrator of Ruggles Whiting, and by ..Gabriel J. Johnson and Enfield Johnson, against the Bank of the United States; and after stating the proceedings in the original suit upon the mortgage, and that the sale was made at a great sacrifice of the property, it relies on the following grounds of error in the proceedings, decree, and sale in the original suit. 1. That it was irregular and erroneous to entertain the bill and pronounce the decree for foreclosure and sale, without Breckenridge being made a •party defendant. 2. That it was irregular and erroneous to sell the property mortgaged, without a revival- of the suit against the heirs, of Whiting. 3. That it was unjust and oppressive to sell in the manner and at the'price-when the sale took place.

The answer of the bank denies all équity in the plaintiffs, and insists that the decree and sale were fair and just. It also denies that Whiting or Breckenridge had any title to the property; and insists that they joined in the mortgage merely to complete the arrangements made between Johnson and themselves. It also denies that the death of Whiting was known at the time of the sale. It states that the property was, after the purchase by the bank, improved, and parts thereof sold to bona fide purchasers for valuable considerations ; and by reason of the improvements and the extension of the city, parts of the grounds so sold are now among the most beautiful and densely built parts of the city. The answer also states, tha-' Whiting died insolvent and deeply indebted to the bank, by certain other judgments and notes.

Such are the material facts and statements in the case, and upon them, so far at least as the present bill of review is concerned, there is no controversy between' the. parties. ' The prayer of the bill is, that the proceedings may be revived, (as the word stands on the record, probably by mistake, for reviewed;) and that the decrees anísale may be set aside, that the plaintiffs may be permitted to redeem.; and for other relief.

Some suggestions have been made as to the nature and character • of the present bill — whether it is to be treated as a bill of review, or what other is its appropriate denomination. As the original decree, which it seeks to review, was properly, according to our course of practice, to be deemed recorded and enrolled as of the term in ■which the final decree was passed, it is certainly a bill of'review in contradistinction to a bill in the nature of a bill of review; which latter bill lies only when there has beén no enrollment of the decree. Being a bill brought by the original parties and their privies in representation, it is also properly a bill of review in contradistinction' to an original bill in the nature of a bill of review; which latter bill brings forward the interests affected by the decree other than those which are'founded in privity of representation. The present bill seeks to revive the suit by introducing the heirs of Whiting before the Court; and so far it has the character of a bill of revivor. It seeks also to state a new fact, viz., the death of Whiting, before the sale; and so far it is supplementary. It is, therefore, a compound bih of review, of supplement, and of revivor; and it is entirely, maintainable as such, if it presents facts which go to the merits of the original decree of foreclosure and sale.

It has also been suggested at the bar, that no bill of review lies for errors of law-, except where such eprorsAre apparent on the face of. the decree of the Court. That is true in the sense in-which the . language is used in the English practice. In England, the decree alwavs recites the substance of the bill and answer and pleadings, and also the facts on which the Court founds its decree. But in America the decree does not ordinarily recite either the bill, or answer, or pleadings; and generally not the facts, on which, the decree is founded. But with us the bill, answer, and other pleadings, together with the decree, constitute what is properly considered as the record. And, .therefore, in truth, the rule in each country is precisely the same, in legal effect; although expressed in different language; viz., that the bill of review must be. founded on some error apparent upon the bill, answer, and other pleadings,-and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree, founded on the supposed mistake of the Court in its own deductions from the evidence.

Having made these explanations, which seemed proper with reference to the arguments pressed at the bar, we may now return to the consideration of the direct points presented for the consideration of the Court. The third and - last error 'relied on in the bill, has been abandoned at the argument; and therefore it need not be examined. The other two remain to be disposed of. And first, as to the supposed error in not making Breckenridge a party to the original bill. Assuming that he was a proper party to that bill, still it is to be considered, that it was an. objection which ought properly to have "been taken by the present parties at the original hearing, or upon the appeal (if any) before the appellate' Court. And upon a bül of review it cannot properly be relied on as matter of error, unless it can be shown that the nonjoinder has operated as an injury or mischief to the rights of the present plaintiffs. . No such injury or mischief has been shown, or is pretended. Breckenridge is not bound by the original decree, because he was no party thereto; and, therefore,his interests cannot be prejudiced thereby. But if they were, he, and he alone, has a right to complain, and -to seek redress from the Court; aiid not the plaintiffs, who are not his representatives, or entrusted with the vindication of his rights.' Breckenridge has made no complaint and sought no redress. -We think, therefore, that this error, if any there be, not being to the prejudice of the plaintiffs, cannot furnish any ground for them to maintain the present bill; for no party to a decree can, by the general principles of equity,- claim a reversal- of a decree upon a bill of review,'unless he has been aggrieved by it; whatever may have been his rights to insist on the error ,at the original hearing, or on an appeal.’

In the next place, as to the sale of the mortgaged premises after the death of Whiting, without a. revival, of the suit against his'heirs. It is not,even, pretended in the bill of review, that; there was any fraud iii the sale; nor upon the argument has any irregularity even been~insisted on. What then is. the--gravamen ? That the land was sold honestly and fairly, but for a less price than its real value. Now, such an objections, everi in the month of Whiting himself, if he had been living, would have constituted no valid objection to the sale, or the confirmation thereof; but at most would have furnished only a motive to induce the Court, in its discretion, to have Ordered a resale, or to have opened the biddings. It would be no matter of error whatever., If this be a correct view of .the subject, it is plain that the heirs of Whiting-cannot be entitled to be put in a better predicament than Whiting himself; and no decree in equity ought to be reversed for matter of mere favour, and not of right.

But is the objection itself, in principle, well founded ? That de-r pends upon this; whether-the decree of foreclosure and sale is to be considered as the final decree in the sense of a Court of Equity, and the proceedings on that decree a mere mode of enforcing the rights of the creditor, and for the benefit of the debtor; or whether the decree is to be deemed final Only after the return and confirmation of the sale by a decretal order of the Court. We are of opinion that the former is the true view of the matter. ' The original decree of foreclosure land sale was final, upon the merits of the controversy. ‘. The defendants had a right to appeal from that decree, as final upon those merits, as. soon as it was pronounced, in order to prevent an irreparable mischief to themselves. For, if the sale had been completed under the decree, the title-of the'purchaser under the decree would not have been overthrown, or invalidated even by a reversal of the decree; and consequently the title of the defendants to the lands would have been extinguished; and their redress upon the reversal would have been of a different sort from that of a restitution of the land sold. In Ray vs. Law, (3 Cranch R. 179,) it was held.by this Court, that a decree of sale .of mortgaged premises, was a final decree in the sense of the Act of Congress, upon whi ... an appeal would lie to the Supreme Court. This decision must have been made upon the'general ground, that" a decree, final upon the merits of. the controversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior proceedings. Indeed, the ulterior-pro-, ceedings are but a mode of executing the original decree, like the award of an execution at law. If this be the true view of the present decree, and the proceedings thereon, then it is plain that this bill of review is not maintainable for two reasons, each of which is equally conclusive. The first is, tjhat no error is shown in the original decree, for the only pretended error is in the sale under the decree. The second is, that this bill of review was not brought within five years after the original decree was rendered in the lifetime of Whiting; and the statute of limitations, having once begun, to .run, cannot be stopped by any subsequent intervening disabilities.

If, then, the original decree was unobjectionable and conclusive; if there has been no fraud in the subsequent sale, pursuant to that decree; and if.there has been, in a legal sense, no-prejudice to any rights of the plaintiffe in the original decree, or the sale, then, although there was no revivor before the sale, there is no error upon which a bill of review will lie to entitle the parties to a reversal. We do not say whether the Circuit Court might or might not in its discretion have required a revival of the suit before the sale was . confirmed, if the fact of the death of Whiting had been distinctly brought to its knowledge. But we do mean to say, that the non-revival was not matter of error, for which the proceeding on the . sale under the original decree, (for that is all which the present bill seeks to redress,) can or ought to be reversed.

The decree of the Circuit Circuit dismissing the bill, is, therefore, affirmed with costs.

This cause came on to be heard on. the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and-was argued by counsel.' On consideration whereof, it is now here ordered and decreed by this Court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.


source: Caselaw Access Project

author: Mr. Chief Justice Taney.

license: Public Domain

text:
    John P. Van Ness and William Jones, Plaintiffs in error, vs. The Bank of the United States, Defendant in error.
    The proceedings of the Courts of- the state of Maryland, and the laws of that state prior to. the passing of laws by Congress providing for the government of the District of Columbia, were in full force and operation in that part of the district ceded by the state of Maryland, until Congress had legislated for the government of the District of Columbia; and the decree of the Gourt of Chancery of Maryland, affecting property in the District of Columbia, in a cause entertained in that Court, operated in the district until Congrft . took upon itself the government of the district.
    The state of Maryland, and the United States, both intended that the suits pending in the Courts of Maryland, should be proceeded in until the rights of the parties should be deft nitively decided; and that the judgments and decrees there made, should be as valid ant-' conclusive as if the sovereignty had not been transferred.
    Congress, by the 13th section of the Act of February 27, 1801, placed judgments and decrees thereafter to be obtained in the state Courts of the state of which the District of Columbia had formed a part, on the same footing with judgments and. decrees- rendered before.
    If a guardian appointed by the Court of the state of Maryland; in a cause instituted after Congress had legislated for the District of Columbia, had been ordered, by a decree of the-Court, to- make a deed of lands within the district, and had died, of had refused to make the cotoeyance as ordered, the Court of the district would, on application, have been bound to appoint .another person to execute the deed; and'would not have been authorized to open again and re-examine the questions whícifhad been decided, in the Maryland: Court.
    A deed was executed and acknowledged “ W. M. Djuncanson, guardian for Marcia Burnes; and-acknowledged by the guardian “to be his act and died as guardian aforesaid, and thereby the act and deed of the said Marcia.” This is a good-execution,and acknowledgment
    The Acts of the Assembly of Maryland, prescribing the mode in which deeds should ,be-acknowledged for the conveyance of real properly,' were adopted by Congress Iiifhe act assuming'jurisdiction in the District of Columbia, together jvith the other laws of Maryland then in force. The Agís qf tha Assembly of Maryland relating-to- the acknowledgment of deeds, do not require that justices of the peace, or other Officers who have authority to take acknowledgments, shall describejm their certificates their official character. Whenever it is established by proof that the- acknowledgment was made before-persons authorized.to take it, it must fife presumed to have been taken by them in their official capacity.
    .The soundest reasons of justice and policy seem to demand that every reasonable intend-ment should be made to support the titles, of bona fidefpúrchasers of real property.
    In the declaration in ejectment, various.demises were laid, and the verdict of this jury, and 'the judgment of the Circuit Court, were,entered on one of the demises only; and it was contended that the Court ought not to have entered a judgment on the issue found for the plaintiff, hut should have awarded a venire de novo.; and that this irregularity might, be taken advantage of upon a- writ of error. Held: that if this objection had been made in the Circuit Court on a motion ie-yrrest- of judgment, the plaintiff would have been permitted to strike out all the demises for "the declaration but that on which the verdict was givem The omission to strike' out these demises was only, therefore, an omission of form; dud the Act of Congress of 1789, ch. 20, see. 32, expressly provides that no judgment shall be reversed for any defect or want'of form; but that the Courts of the-United States shall proceed and give judgment, according as the right of the cause and matter in law shall appeár to them, without regarding any imperfections, defects, or want of form in the judgment or course of proceeding, except that specially, demurred to.
    IN error to the Circuit Court of the United States for the District .of Columbia, sitting for the county of Washington.
    This case came before the Court from the District of Columbia, and was argued by Coxe for the plaintiffs in error, and by Mr. Key for the, defendants.
   Mr. Chief Justice Taney.

The case is fully stated in the following opinion of the Court, delivered by

This case comes before'the Court upon a writ of error, directed to the judges of the Circuit Court for the District of Columbia, sitting for the county of Washington.

' ft is an. action of ejectment brought by the Bank of the United States, to recover sundry lots of ground in the city of Washington. The declaration contains four demises, purporting to have been made for the same, premises by different lessors. The jury found' for the plaintiff- upon one of -the demises, but said nothing of the other three; and the judgment of'the Court is entered, in like manner, iiport the .particular demise on which the jury found for the plaintiff; and( without taking any notice of the others.

• At the'trial in the Circuit Court/it was admitted that David Burnes was seized in fee of the premises in controversy in his life time, and-thathe died seized thereof, intestate, leaving Marcia Burnes his only child and heiress at law. The plaintiff in the Court, below, then offered in evidence the exemplification of a record from the Court of Chancery of Maryland, duly certified, by which it appeared that a'certain isaac-Pollock, on the 17th of May/1800, filed his bill •in the said Court, against Marcia Burnes, then an infant,in order to obtain the conveyance of-a large number of lots, in the city of Washington, among.which are the lots now in controversy; and claiming the same under’a contract made with David Bumes in his life time, which, had-not been carried into execution .by proper conveyances at the time of his death. It further appeared, by the said record from the Court of Chancery, that after various proceedings in the case, the chancellor, on the 1st of November,.1800, decreed, that upon the ■ complainant’s securing the purchase money to the satisfaction of the chancellor, the infant defendant, Marcia Burnes, should, by William Mayne Duncanson, who had been appointed her guardian ad litem, convey the said lots to Pollock in fee. Afterwards, •further proceedings having been had, the Court,, on the 26th of October, 1801, passed another decree, approving the security which Pollock offered, (which was security on other real property,) and directing that , upon the complainant’s executing mortgages for the said .real property to the said Marcia, to secure the. payment of the purchase money, she should make the conveyance by her guardian, as directed by the former decree: ■’ It is .unnecessary to state more in detail the proceedings in the Maryland Court, because it is admitted that they were fully warranted by the laws of that state. The plaintiff in the Circuit Court offered also in evidence, together with this record, the deeds of mortgage executed by the said Pollock, pursiiant to the aforesaid decree; and. also a deed of conveyance for the said lots from Marcia Bumes to Pollock, executed by William Mayne Duncanson as her guardian.. This deed- is dated January 13, 1802, after Congress had assumed the government of this district. The defendant in the Circuit Court objected to the admissibility and competency of all -the evidence above stated; but the objection was overruled by the Court, and this forms the first exception.

In the further progress of the trial in the Circuit Court, various other deeds were Offered in evidence on the part of the plaintiff, in order to show a title derived from Isaac Pollock; and among the deeds thus offered, was one from Walter Smith to Benjamin Stoddart, dated March 5, 1807, acknowledged before Richard Parrott and Thomas Corcoran. This acknowledgment was dated “ District of Columbia, Washington County, to wit;” but it was not stated in the acknowledgment, nor did it appear by that instrument, that Parrott and Corcoran were justices of the peace for Washington county. In point of fact, however, they were such justices, and it is so admitted in the exception. The defendant objected to the admissibility of this deed; and this forms the substance of the second exception; for although other papers are mentioned as objected to at the time,' the only point raised here is upon the acknowledgment of this deed.

Upon the first exception the plaintiffs in error insist that the deed of conveyance from Marcia Burnes to Pollock, of the 12th of January, 1802, executed by her guardian as .above mentioned, pursuant to the decree of the Maryland Court of Chancery, conveyed no title ; that the sovereignty of Maryland over Washington county, in this .district, having terminated on the 27th of February, lSOf, when Congress assumed the jurisdiction, the decree of the state Court could not be. executed without filing' an exemplification of the record, according, to thé' 13th section of the Act of Congress; which provided for the government of the territory; and obtaining' an order for the execution of' the decree, from the Chancery* Court of. this district.

This objection cannot De sustained. The Act of Assembly of Maryland, of 1791, ch. 45, which ceded the territory to the United States, provided, “ That the jurisdiction of the laws of- the state over the persons and property of individuals residing within the limits of the cession, should not cease or determine until Congress should by law provide for the government thereof under their jurisdiction.” -The United States accepted the cession made by this law of the state; and the conditions above mentioned, therefore, formed a part of the contract between the parties; and consequently, the laws of Maryland, and the jurisdiction of its Courts, continued in full force, until Congress took upon itself the, government of the district:' and as it was uncertain át whát time the United S’tates would' assume the jurisdiction, it must have been foreseen,'that whenever that event should happen.many suits would be foünd pending and undetermined in. the state Courts. It was certainly not the intention of the parties to the;"Session, that sucb suits, should abate* and .that individuals who had rightfully instituted proceedings in the tribunals of the state, and incurred the expen'se and delays which are' unavoidable in .-such cases, shouldimmediately upon the assumption of jurisdiction by the United States, be compelled to abandon the state Courts, and to begin anew in the Courts of the district.. There could be no reason of policy or justice for adopting such a.measure: and without stopping to inquire what, upon general, principles of law, would-be the effect of a cession of territory, upon, suits then pending in the Coürts of the ceding sovereignty, it is. evident that in this case, the state and the United States both intended that the suits then pending in the Maryland tribunals should be proceeded in until the rights of the parties should be finally decided; and that the judgments and decrees there made, should be as valid and conclusivé as if the sovereignty had not been transferred. We have already’stated' the provisions of the Act of Assembly of Maryland; and Congress in • assuming.the jurisdiction recognised-the rights of the state Courts, and by the 13th section of the Act’of February 27th, 1801, placed judgments and decre.es thereafter tó be Obtained in. the state Courts, in suits then pending, upon the same footing with judgments and decrees rendered before.' In either case, upon :filing an exemplification of the proceedings had in-the state Courts, it authorized process of execution from the District Court of the United States, in the same manner as if the judgment or descree had been there rendered. It makes no exception in -regard to real- property, situated ih the district; and the rights to such -property.then'in litigation are placed on the saíne ground with rights to' pergonal, property and personal rights, and like them, are íeft 'to the final adjudication of the. Courts of the states. - And although upon a strict and technical construction of the 13 th section of the Act of Congress before referred to, it may be doubted whether this decree falls within that description of judgments and decrees for which provision is there made;. yet when the conditions npon which the cession was made by Maryland, and accepted By Congress, are considered, it is very clear, that if the guardian appointed by the state Court had died or had refused to make the conveyance as ordered, the Court of this district would, upon the application, of Polloek have been bound to appoint .another person to-execute .the deed, and would-not have been authorized to open .again and' re-examine the questions which.had been decided rin the Maryland Court. And in. such' a case the conveyance to Pollock, by.- the infant heiress of Burnes, would have owed its validity-altogether to the decree -of the- state tribunal; and the title of thé garantee would have received no additional strength from .the order of the District Court. We can,.therefore, see ho necessity for an order from that Court, when . the.guardian appointed was willing to execute, it, and did execute-it, in. obedience to the decree of thé Maryland Court.

An objection has also been taken to the manner, in which this deed-is signed and acknowledged-. • It is signed, “ W. M. Duncan-son, guardian for Marcia Burnes;’’ and he. acknowledges it “ to he. his act and deed, as guardian as aforesaid, and thereby the act arid deed of-the said Marcia.”

It is argued that it should have been signed “ Marcia Bumes, by her guardian W. M. Duncanspn,” and in like manner acknow- . ledged “ as her act and deed.” This is a case, where no question arises as to the manner of executing an authority given by private persons, as to which the casé,of the lessee of Clark vs. Courtney, 5 Peters’ R. 319. 349, 350, may justly apply.. But is the case where an authority is to be exercised under the depree of a Court of Chancery, and therefore, where a .liberal construction may and ought to prevail; These two forms of signature and acknowledgment mean precisely the same thingand as this deed substantially conforms in the . manner of its execution to the directions contained in the decree, we consider it to be valid and effectual to corivey the . property therein mentioned.

Upon the. second exception, the plaintiff in error contends, that the acknowledgment of the deed from-Walter Smith to Benjamin Stoddart is defective, and the deed inoperative, because it does not appear in the certificate of acknowledgment endorsed upon the deed that the persons before whom it ryas made were at that timé justices of the peace for Washington couñty; and he insists that this omission cannot be. supplied by parol,

This question depends upon the construction of the Acts of As- . sembly of Maryland which prescribe the mode in which deeds shall be acknowledged for the conveyance of real property; those Acts of Assembly having been adopted by Congress in the Act assuming jurisdiction, together with the othér laws of Maryland then in force. We perceive nothing in theMaryland Acts of Assembly which requires justices of the peace or other officers to describe in their ceiv. tificates their official characters. It is no doubt usual and proper to do so, because the statement in the certificate is prima facie evidence of the fact, where the instrument has been received and recorded by the proper authority. But such a statement is not made necessary by the Maryland statutes. And whenever it is established by proof that the acknowledgment was made before persons authorized to' take it,, it must be presumed to have been taken by them in their official capacity; and when their official characters are sufficiently, shown by parol evidence, or by the admissions of the parties, we see no reason for requiring more where the Acts of the Legislature have not prescribed it. On the contrary, the soundest principles of-justice and policy would seem to. emand that every reasonable intendment should be made to support the titles of the bona fide purchasers of real property; and this Court is not disposéd to impair their safety, by insisting upon matters of form, unless they were evidently required by the legislative authority.

If the Maryland Courts had given a contrary construction to these Acts of Assembly, we should of course feel it to jbe our duty to follow their decision. But we do not find the point decided in ¿ny of the Maryland reports. In the case of Connelly vs. Bowie, 6 Har. & John. 141, the certificate of acknowledgment did not state that the persons .by whom it was taken were justices of the peace, and- there was no evidence in the record to prove their official character. The deed was, therefore, clearly inadmissible; and it was so ruled by the Court of Appeals. But it does not follow that the decision would have been the same if parol evidence had been given to prove their official character; arid from the language of the Court in that case, it may rather be inferred, that if other evidence had been offered, it would have been deemed admissible to supply the omission in the certificate .'endorsed on the deed.

The objection made to the verdict and judgment applies altogether to the form of the proceeding, and does not in any degree affect the merits of the controversy. The verdict and the judgment, it appears, are 'apon one of the demises only; and it is insisted that as the-jury did not find all of the issues committed to them by the pleadings, the Circuit Court ought not to have éntered a'judgment for the plaintiff upon the issue found' hi his favour; but should have awarded a venire de novo: and that this irregularity in the proceedings may be taken advantage, of upon a writ of error. It is not necessary to examine whether this objection could be maintained upon the practice and decisions of the English Courts in relation to the action of ejectment. For the Act of Congress of 1789, ch. 20, sec. 32, expressly provides, among other things, that no judgment shah be reversed for any defect or want of form; but that the Courts shaB proceed'and give judgment according as the right of the cause and matter in law shall- appear to them, without regarding any imperfections, defects, or want of form in the judgment or course of proceeding, except those specially demurred to. Now, the demises laid in a declaration in ejectment are known to be fictitious and mere form; and if the appellant had taken this objection in the Circuit Court, in arrest of judgment, the plaintiff would undoubtedly have been permitted to strike these demises from the declaration, and thus obviate the objection. The. omission of the plaintiff to do this was nothing more than an omission of a matter of form; and if, therefore, this proceeding in the Circuit Court should be held to be irregular, it is nothing more than an error of form; and as such, furnishes, no ground . for the reversal of the judgment.

The judgment, of the Circuit Court is-therefore affirmed, with Costs.

This cause came ori'tp be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holdén in and for the county of Washington, and was argued by counsel. On consideration whereof,- it* is how here ordered and adjudged by this Court, that the-judgment of the said Circuit Gourt in this cause be, and the sanie is hereby affirmed, with costs.


author: Mr. Chief Justice Taney Mr. Justice Baldwin

text:
    The State of Rhode Island vs. The State of Massachusetts.
    The State of Khode Island, on leave granted at January Term, 1838, to amend a bill previously filed by the state against tile state of Massachusetts, amended the bill at this term, by inserting in it references to papers filed at the term of 1838. The state of Massachusetts was allowed until the term of 1840 to answer.
    The rules which govern Courts of" Equity as to the. allowance of time for filing an answer and other proceedings in suits between individuals, will not be applied by the Supreme Court to controversies between states of the Union. The parties In such cases, must, in the nature of things, be incapable of acting with the promptness of an individual.
    MR. SOUTHARD, for the complainants, stated that the state of Rhode Island, with the' consent of the Court, obtained at last term, had amended the bill filed in this case; and he moved the Court for a rule on the. state of Massachusetts to answer-within a short time, so that the case might be disposed of during the term.
    Mr! Webster stated, that, although not authorized to appear in the casé, he thought it proper to say that the opinions of the Court ■delivered at the last term in this cause had been submitted to the government of Massachusetts; It was a short'time before the adjournment of the legislature of the state that they were communicated to them. The subject will be'again presented by the governor to the legislature, at the session now held; and it is expected that some action upon it will take place. . In the posture in which the case stood at the last term of this Court, the attorney general of the,state of Massachusetts has not thought it proper to do any thing. The movements of such bodies, as the defendants in this case, are slow.
    Mr. Hazard had'no objection to an allowance .of time to the defendants' to answer. He had a strong impression that he had seen . some proceedings, of the legislature of Massachusetts, at its last .session in 1838, by which the direction of this case was left to the counsel employed by the state. He did not think that the slow movements of. such bodies should' be allowed, when other parties are concerned! He .desired that a timé for the filing of an answer,, by the state of Massachusetts, should'be definitely fixed.
   Mr. Chief Justice Taney

delivered the opinion of the Court.— ,

A motion was, made by the complainant on Saturday last fpr an order on the defendant to answer the amended bill of the complainant, on of before the 26th day pf the present month of January. In deciding upon this motion it is necessary to refer to the orders of the Court heretofore passed in this case, and to see what steps have been taken upder them.

At the last term leave was given to Rhode Island to withdraw the general replication filed in the case, and to amend the bill: the amendment to be made on or before the first Monday of August last. At the same term, upon the motion of the counsel for Massachusetts, leave waa-granted lo withdraw the plea which the defendant had filed, and also to strike out the appearance of Massachusetts to the suit..

Nothing has since been done by the defendant under this leave, for reasons which have bteen stated at the bar. And as the appearance of Massachusetts has not yet been withdrawn, and ás Rhode Island has a right to the. usual orders to enable that state to proceed in the suit, the Court in passing them must look to the condition of the case as it appears on the record, and consider Massachusetts’ as still in Court, and as appearing in the case.

When the' motion was made at the last term to amend the bill, two docúments which Rhode Island desired to -introduce into the cause were filed with the motion; but the leave to amend was general^ and not confined to the papers then filed. Nothing appears to'have been done by the complainant until the second day of the present term, when the bill was amended by inserting in it the proper allegations, in relation to the two papers above mentioned; and adding also certain interrogatories- in relation to sundry matters charged in the bill,- which the complainant prays that the defendant may be required to answer. The amendment, therefore, was not rondé until the second .day of the present term. The defendant could •rictt'have answered until it was made; and, consequently, is not in default for not answering. The question now is, what time, ought to be given ?. " .

From the character of the parties, and the nature of the controversy, we cannot, without committing great injustice, apply to this case the rules as to time, which govern Courts of Equity in suits between individuals. In the last mentioned cases, the material allegations-in the bill are comparatively few in number, and' rest in the personal knowledge of the -individual who. is to put in his answer. .But a case like this, and one too of so many.years-standing, the parties, in the nature of things, must be incapable of acting .with the promptness of an individual. Agents must be employed, and much time may bé required to search, for historical documents, and to arrange and collate them, for the purpose of presenting to the Court the true grounds of the defence. It is impossible'for the Court to foresee what additional inquiries and explanations -may be found necessary; in consequence of the new allegations and' documents introduced into the bill; and the new interrogatories as to the verity of varioüs papers stated in the bill, which the defendant is now. called upon to answer^ And as the Court have received the amendment of the complainant at the present term, upon the leave granted at the last term, as herein before mentioned; we think that the same time should be given to the defendant to answer. The Court will, therefore, pass the following order.

. The bill heretofore filed by Rhode Island in this case, having-been amended on‘the second day of the present term, it is ordered by the Court, that Massachusetts be alloived until the first Monday in August next to elect whether that state will withdraw its appearance, pursuant to the leave granted at January term, 1838; and if the appearance of Massachusetts be withdrawn within the time above mentioned, that Rhode Island- be, thereupon, at liberty to proceed éx parte.

And if the. appearance of Massachusetts shall, not be withdrawn within the time above mentioned, it is then ordered, that the said state answer the amended bill óf the complainant on or before- the second day of January term, 1840.

The motion made by the complainant on Saturday, the 19th df the present month, is overruled.

January 26, 1839.

Mr. Justice Baldwin

did not consider-the state of Massachusetts before the Court; after .what had passed at the last term,not considering Massachusetts before the Court,'he had taken no part in the order now made by the Court.'