author: Mr. Justice McLEAN

text:
    The United States, Plaintiffs, in error, v. Daniel H. Bromley.
    The act of Congress passed on the 3d of March, 1845, (5 Stat. at Large, 736, ) forbids the transportation of letters, packages, or other mailable matter, except such, as may have relation to some part of the cargo or some article at the same time conveyed in a stage or other vehicle, when'such transportation is over a mail route.
    A letter or order, although tínsealed, directing tobacco to be sent by the return boat as a commercial transaction, was within the prohibition of the Statute.
    Under the act of Congress passed on the 31st of May, 1844, (5 Stat. at Large, 658,) directing that final judgments in a circuit court in any civil action'brought by the United States for the enforcement of the revenue laws may be reviewed in this court without regard to the sum or'value in controversy, tins court can exercise jurisdiction. The revenue of the Post-Office Department is a part of the revenue of the government.
    This case was brought up. by writ of error, from the Circuit Court of the United States for the Northern District -of New York.
    It was an action of debt on.statute, commenced in the District Court of Northern New .York, founded on the tenth section of the act of 3d March, 1845: “ An act to reduce the rates of postage; to limit the use, and correct the abuse, of the franking privilege; and for the prevention of frauds on the revenue of the Post-Office Department.”
    The section is as follows: “ That it shall not be lawful for any stage-coach, railroad ear, steamboat, packet-boat, or other vehicle or vessel, nor any of the owners, manager^, servants, or crews of either, which regularly performs trips at stated periods on a post-route, or between two or more cities^ towns, or other places, from one to the other of which the United States mail is regularly conveyed under the authority of the Post-Office Department, to transport or convey, otherwise than in the mail, any letter or letters, packet or packages of letters, or other mailable matter whatsoever, except such as may have relation to some part of the cargo of such steamboat, packet-boat, or other vessel, or to some article at the same time conveyed by the same stage-coach, railroad car, or other vehicle; and excepting also newspapers, pamphlets, magazines, and periodicals; and for every such offence, the owner or owners of the stage-coach, railroad car, steamboat, packet-boat, or other vehicle- or vessel, shall forfeit and pay the sum of one hundred dollars; and the driver, captain, conductor, or person having charge of any such stage-coach, railroad car, steamboat, packet-boat, or other vehicle or vessel at the time of the commission of any such offence, and who shall not at that time be the owner thereof, in whole or in part, shall in like manner forfeit and pay, in every such case of offence, the sum of fifty dollars.” 5 Stat. at Large, 736.

      What constitutes mailable matter, is defined in the fifteenth section.' Ib. 737.
    The declaration contains ten counts, and in substance, they all and each of them charge, that Bromley, the defendant, was the captain of the packet-boat Empire, which regularly performed trips, at stated periods,, between two places, from one to the other of which places the United States mail was regularly conveyed, under the authority of the Post-Office Department, to wit, between Albion and Rochester; and that the said packet-boat, and the said defendant so being such captain, and the managers, servants, and crews of the said packet-boat, did, while the said defendant was such captain thereof, and while the said packet-boat did regularly perform trips, at stated periods, between the said places, the said United States mail being regularly conveyed, under the authority of the Post-Office Department, from one to the other of the said places, transport and convey, otherwise than in the mail, divers letters, packets, and packages of letters, to wit, ten letters, ten packets, arid ten packages of letters, then and there being mailable matter, other than newspapers, &c.; and which said letters, packets, and packages of letters, did not, nor did any or either of .them, have relation to any part of the cargo of the said packet-boat, from one to the other of the said places, from one to the other of which said places the United States mail was then and there regularly conveyed as aforesaid, under the authority of the Post-Office Department, contrary to - the intent of the act;. whereby the defendant did then and there forfeit, and became liable to pay the plaintiffs the sum of fifty dollars; by means whereof an action hath accrued to the plaintiffs to demand and have of and from the defendant the sum of fifty dollars.
    . To this declaration the defendant pleaded nil debet, to which the plaintiffs joined issue.
    The cause coming on to be tried, the plaintiffs offered certain evidence set forth in the bill of exceptions, as follows :
    Wallace Sherman, to whom it was objected on behalf of the defendant, that he was informer in the case, but the court overruled the objection.
    The said witness was therefore examined in chief by the said United States Attorney, and testified, that he was clerk-in the post-office at Albion, from about the middle of August, 1846, during all which dime the mail was regularly carried under the authority of the Post-Office. Department, between Albion and Rochester* New York, daily. H. I. Sickles was postmaster at Albion; that he had seen the defendant, and knew him by sight; that he believed he was captain of the packet-boat Empire, on the Erie Canal, in 1845, and part of 1846 5 that the packet-boat Empire, during the season of navigation, performed regular trips between Rochester and Buffalo; that Albion was -.on the canal between Rochester and Buffalo; that he had seen Kelsey, the steward of the boat; that he was steward of the boat while the defendant was captain ; that he saw a letter or letters given to Kelsey in 1846, he thought in May ; that it was while the defendant was captain, and while the boat was at Albion; Kelsey was the steward of the boat, which was going from Buffalo to Rochester; that he thought two letters were given to him, one by Bráinard and one by Parmlee; that he did not know as any thing else was given to the steward ; that he, the witness, was not far off; that he did not know whether both the letters were given to the steward at the same instant of time.
    ' On cross-examination by the counsel for the defendant, this witness testified that this was between 10 and 11 o’clock at night; the boat did not stop at Albion over fifteen minutes; that on the occasion spoken of he and one White got on the boat; that he had seen the defendant on the boat Empire since that time ; that he did 'not abandon the boat very early in 1846; that after the defendant quit, Kelsey run the boat as captain; that, he, the witness, was not acquainted with Brainard, who was a tobacco peddler; Parmlee attended the fiar at the Mansion House in Albion; the papers handed to the steward were folded in the shape and size of letters ; he, the witness, did not know whether they were sealed or j|not; Kelsey got- on the boat after he took the letters; they did not contain over one sheet of paper each.
    On a reexamination by the said United States Attorney, the Witness testified, .that he saw the report of the case by the postmaster to the United States Attorney. It is shown to and identified by the witness, who stated the report to be dated May 7, 1846. .
    William V. White was then called as a witness for the said United States, and testified that he resided at Brockport, and was at Albion in the spring of 1846, he thought in May, and stayed at Albion ‘from dark until 10 or 11 o’clock the same night; and then went from Albion to Rochester in the packet-boat Empire, of which the defendant was the captain.
    That the last witness, Sherman, came down to the wharf to see the witness off. That he, the witness, did not. see any thing handed to the steward, or any hand on the boat. That he arrived at Rochester about 7 o’clock the next morning, and saw Kelsey, the steward, have something of paper, which he handed to a.boy. . That he did not see the size of t-heL.paper, or whether sealed or open. That he did riot see from what part of his person the steward took the paper. That the boy to whom the paper was delivered belonged to the boat; he thought there was no more than one paper, and that he should think they were folded. That he did not notice any writing on the papers. That this was almost half an hour after the boat arrived at Rochester. The said United States Attorney thereupon asked the said witness whether the said steward, when he gave the said papers to the boy, gave any directions to the boy in respect to said papers. And the said counsel for the said defendant did then and there object, and insist that the said question was improper, and that the said witness ought not to answer the same. And the said court did thereupon then and there decide, that the said question was incompetent, and that the same should not be answered by the witness; to which opinion and. decision the said United States Attorney did then and there except.
    On cross-examination, the said witness testified that he was with Sherman most of the time after nine o’clock of the evening of - the transaction spoken of, until the packet-boat left Albion. That it was between the 1st and 15th of May, 1846. That the defendant was on the boat as captain that night.
    James Brainard was then called and sworn as a witness on behalf of the United States, and testified that in May, 1846, he was at work peddling tobacco for Mr. Palmer; that he was at Albion every two weeks, and thought he was there in- May; that he was there the forepart of the week, but did not recollect the time of the month; that he recollected offering Kelsey a letter at Albion to carry to Mr. Palmer, his employer, at Rochester, and Kelsey would not carry it, and said he was not permitted to carry letters. That this was in front of the hotel at Albion, at 10 or 11 o’clock at night; that he (the witness) kept the letter, and wrote an order on his employer for some tobacco, and gave it to Kelsey to carry; that he wrote it op a half sheet of paper, and wrote, it half oyer and tore off the residue. That he folded it over the width of the sheet, and then once at right angles with the first fold, and directed it on the outside to Mr. Palmer, at Rochester. That the order to Mr. Palmer was a request to send some-tobacco to him (the witness) at Albion, by the boat Empire, or by the, (irst boat; and the witness thinks the request was to send it by the first boat; and this was the substance of the paper. That he did not give, the steward any thing for carrying the- letter. That he received the tobacco the next day. He found it at the hotel at Albion, when he came back from Berne Centre..
    On cross-examination, this witness testified, that he supposed, when he wrote, that the Empire would be the first boat out of Rochester, after -the receipt of the order by Palmer. That he told Palmer to send the tobacco bv the first boat; that he paid nothing for bringing the tobacco.

      James H. Palmer was then called and sworn, as a witness on behalf of the United States, and testified that he was the person of that name referred to in the testimony of the last witness, and had charge of the business of the firm at Rochester, for whom Brainard was peddling tobacco in May, 1846. That he frequently received orders from Brainard by mail and otherwise ; that the orders were all destroyed; that he never sent tobacco to peddlers except upon orders, unless they requested it before they left Rochester.
    On cross-examination, he testified that he recollected sending tobacco by the defendant’s boat, in May, 1846, to Brainard.
    William Parmlee was then sworn, and called as a witness on behalf of the United States, and testified that, in May, 1846, he attended bar for Mr. Hopkins, at Albion. That he did not recollect handing any paper or letter to Kelsey, to be carried by him, or for any other purpose; that he had offered letters to Kelsey to carry, and he refused to carry them; that he recollected seeing Brainard giving a note to Kelsey, written on two thirds of a sheet of foolscap paper, and folded in about the size of an ordinary letter, to be carried to Rochester.
    On cross-examination, the witness testified that the. boat Empire brought the tobacco from Rochester for Brainard; and he (the witness) paid the steward (Kelsey) half a dollar for bringing it, which Brainard afterwards repaid him.
    Said Kelsey was then calléd as a witness for the said United States, and testified that in May, 1846, he was steward of the Empire. The defendant was captain of the said boat; that he recollected the circumstances spoken of by Brainard and Sherman ; that Brainard came with a letter, and he (the witness) refused to take it; and that he soon afterwards brought the order spokén of, which he (the witness) took, and, when he arrived at Rochester, sent to Mr. Palmer, and received the tobacco and carried it to Albion, for which he received a half dollar, which was a perquisite of his own.
    The said United States Attorney thereupon rested the said cause, and the counsel for the defendant did then and there ask •the said judge to direct the said jury that the said evidence did not establish a cause of action against the said defendant; and that the said defendant, upon the said evidence, was entitled to a verdict; and the said judge did thereupon, then and there declare and decide, that the said evidence, so as aforesaid given, did not establish a cause of action against the said defendant; and that the said paper, carried and conveyed by the steward of the said boat, from Albion to .Rochester, as aforesaid described by the witnesses, was not a letter or mailable matter within the meaning of tne act of Congress, but was a paper having a differ ént and distinct character of its own, and could be lawfully carried by the said steward of the packet-boat aforesaid; and did then and there, for the reason aforesaid, direct the said jury, to find’ a verdict for the said defendant. To which said opinion and decision the said United States Attorney did then and there except; and the said jury did thereupon, in pursuance of the said opinion and decision, without leaving the box, find a verdict for the defendant.
    The cause was afterwards removed by writ of error into the Circuit Court, when the judgment of the District Court was affirmed.
    The United States then sued out writ of error and brought the case up to this court.
    It was argued by Mr. Crittenden, Attorney-General, for the United States, and by Mr. Sackett, for the defendant in error.

      Mr. Crittenden contended:
    1. That, although the amount in controversy is under the sum of two thousand dollars, yet this court has jurisdiction, under the act of 31st May, 1844: “ An act to amend the Judiciary act, passed the 24th September, 1789,” whereby it is enacted, “ that final judgments in any Circuit Court of the United States, in any civil action, brought by the United States, for the enforcement of the revenue laws of the United States, or for the collection of the duties due, or alleged to be due, on merchandise imported therein, may be reexamined, and reversed or affirmed in the Supreme Court of the United States, without regard to the sum or value in controversy in such action, at the instance of either party.” 5, Stat. at Large, 658. And that the laws relating to the revenue of the Post-Office Department are revenue laws, within the meaning of the above act. The act under which the suit is brought is entitled “ An act to reduce the rates of postage, &e., and for the prevention of frauds on the revenue of. the Post-Office Department.” 5 Stat. at Large, '736. See also act of 3d March, 1845: “ An act to change the organization of the Post-Office Department, and to provide more effectually for the settlement of the accounts thereof,” particularly the first, third, twelfth, and forty-fifth sections. 5 Stat. at Large, et seq.
    2. That the paper conveyed by .the steward of the packet-boat Empire was a letter within the meaning of the statute. See testimony of Parmlee and Brainard.
    1st. The law'under which the suit was brought is a revenue law, and is to be liberally construed, so as to effect the intention of Congress. Taylor v. United States, 3 How. 197.
    2d. A letter is a written communication from one person to another; neither external direction, nor sealing, nor envelope, are essential to a letter.
    3d. The paper in question being directed externally, was mailable matter; that is, had every requisite to enable it to be effectively transmitted by post.
    . 4th. That here was an attempt to évade the statute. The steward rejected what he describes as a letter, but conveyed a paper with, the same contents and direction. See Kelsey’s testimony

      Mr. Sackett contended:
    1. This Court has no jurisdiction, less than $2,000 being in controversy.
    The act of 31st cif May, 1844, (5 Stat. at Large, 658,) giving to this court the right of review, on error, to a circuit court, in all “ civil actions for the enforcement of the revenue laws of the United States,” does not apply to the act under which this suit is brought. That act is a law to carry out the power vested in Congress in relation, to post-offices and post-roads, and nof a revenue act. Art. 1, sec. 8, of the Constitution.
    The system of postages, established by that act, is. not a system of revenue. It is a plan of compensation for the .services of government in carrying the mails.
    Revenue laws must be uniform. Sec. 8, Constitution. This law is but a graduated scale of rates charged for labor performed. Indeed, there is no power in Congress to convert its power “ to establish post-offices and post-roads” into a revenue power. And though postages, however unequally levied, may incidentally produce revenue, they are not levied as revenue. Official fees of marshals, attorneys, &c., that go into the Treasury, may as well be claimed to arise from the taxing or revenue power.
    But if this be held to be a revenue law, query, does the act of 31st of May reach suits for penalties for its violation ? Such suits are not suits to enforcé the law, but to punish for a breach of it.
    2. The paper carried by Kelsey was not “ mailable matter.” It was not a letter, and there is no other specification of “ mailable . matter,” except letters, by which this case is even supposed to be embraced. The parties acted sincerely, and, as they believed, lawfully. It is said, on the other side, that the same thing was contained in the order, that was in the destroyed letter. . There is no proof of this; but if true it is of no legal consequence. The same word might have been sent verbally, and it would have been as much an evasion in one case as the other, so, far as payment was concerned.
    This paper was not a letter, a packet, or package ; it was an open request, a memorandum. To compel such papers to pass through the mails would be a most useless clog to business, and utterly derange the customs and conveniences of society. ' It is not intended by the post-office act to compel business into' the mails, but only to prevent what- naturally belongs to them from being drawn out by private hands. 5 Stat. at Large, 737, sec. 15.
    . 3. If the paper carried was “mailable matter,” standing, alone, it was not so in its connection with the “ cargo ” of the boat. The act clearly contemplates that boats and vessels may do their own business in-relation to their own cargo, whether on board or to be procured. This will be seen from the language of the act. The 10th section, in stating the exceptions, says, “ except such as may have relation to some part of the cargo of such steamboat, packet-boat, or vessel, or to some article at the same time conveyed by the same stage-coach, railroad car, or other vehicle.”
    In fact, if vessels on lakes, rivers, and canals, are not to be permitted to carry memorandums or orders, in relation to their cargo, either on board or to be procured, they will suffer endless inconvenience. For instance, a boat is passing, and a shipper wishes “ cargo ” put on board a few miles ahead; the mail may not pass in three days ; he wants to send by the boat an order to his agent to ship, under the rule contended for he cannot do it.
    4. The act is a penal one, and must be construed strictly. Its penal character is very extraordinary. It makes the innocent pay the penalty for the guilty. So in this case.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a case on error, from the Circuit Court of- the Northern District of New York.

An action of debt was brought in the District Court, under the tenth section of the act of the 3d of March, 1825, entitled “An act to reduce the rates of postage, &c., and for the prevention of frauds on the revenue of the Post-Office Department.” ' It prohibits, under the penalties provided, any stagecoach, railroad car, steamboat, or other vehicle or vessel, Or any of the owners, managers, servants, or crews of either, which regularly performs trips on a post-route, on which the mail is carried, from transporting letters, packages, or other mailable matter, except such as may have relation to some part of the cargo, or to some article at the same time conveyed in a stage or other vehicle.

The declaration charged the defendant Bromley, as the captain of the packet-boat Empire, which regularly performed trips on the canal between Albion and Rochester, in the State of New York, on which line the mail was transported, under the authority of the Post-Office Department, with transporting, otherwise than in the mail, divers letters, packets, and packages of letters, then and there being mailable matter, other than newspapers, &c., not having relation to the cargo.

Thé defendant pleaded nil debet, and the plaintiffs joined issue.

Evidence Was given to show that the defendant was captain of the boat Empire, which performed trips between the places stated, and that the mail was regularly conveyed on the same route in 1845 and 1846. That Brainard, one of the witnesses, gave a note to Kelgey, the steward of the boat, written on two thirds of a. sheet of foolscap paper, and folded the size of an ordinary letter, with a direction upon it, to be carried to Rochester. That the letter, was an order to Mr. Palmer for tobacco, which was sent by the return boat, and for which Kelsey, the bearer, received fifty cents.

The testimony being closed, the defendant prayed the judge to instruct the jury that it did not establish a cause of action against the defendant; and the judge instructed the jury that the paper conveyed by the steward of the boat, Kelsey, from Albion to Rochester, as sworn to by the witnesses, was not a letter or mailable matter, within the meaning of the act of Congress ; but was a paper having a different and distinct character of its own, and could be lawfully carried by the said steward of the packet-boat aforesaid, and did therefore direct the jury to find for the defendant, which they did; and to which instruction the plaintiff excepted.

The cause was afterwards removed to the Circuit Court by writ of error, and by which court the • judgment of the District Court was affirmed. This judgment of affirmance is now before us for revision.

This writ of error was issued under the act of the 31st. of May, 1844, entitled (tAn act to amend the Judiciary Act passed the 24th September,' 1789, which provides that final judgments in any Circuit Court of the United States, in any civil action brought by the United States for the enforcement of the revenue laws of the United States, or for the collection of the duties due on merchandise imported therein, may be. examined, and reversed or affirmed in the Supreme Court of the United States, without regard to the sum or value in controversy in such action, at the instance of- either party.”

That the act which prescribes the offence charged is a revenue law, there would seem to be .no doubt. In its title, it is declared to.be an act to reduce the rates of postage, and for the “ prevention of frauds on the revenue of the Post-Office Department.” In its character and object it is a revenue law* as it acts upon the rates of postage and increases the revenue by prohibiting and punishing fraudulent acts which lessen it. Under the act of 1836, the revenue of the Post-Office Department is paid into the treasury. Revenue is the income of a State, and the revenue of the Post-Office Department, being raised by a,tax on mailable matter, conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports.

We think the instruction of the court was erroneous. The letter or order, as it is called by some of the witnesses, was folded in the form of a letter and directed as such, though it was not sealed. A seal was not necessary to constitute it a letter or to make it chargeable with postage. The letter was not within the exception of the statute, as it did not relate to-the cargo or to any article on board of the boat. It was an order for tobacco on Mr. Palmer, of Rochester, who was a dealer in that article. Among merchants, an order to the wholesale dealer for merchandise is a common subject of correspondence. And it may be doubted whether any other subject can be named on which more letters are -\toitten and forwarded in the mail. Two thirds of the half sheet which composed the letter was covered with writing, from which an inference may be drawn, that something more than a mere order for goods was requested by the writer. But an order for goods, folded and directed as a letter, is clearly mailable matter, and a conveyance of it, as charged, is a violation of the law.

The judgment of the Circuit Court is reversed, and the cause is remanded to that court for further proceedings, according to law.

Order.

This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Northern District of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed; and that -this cause be, and the same is hereby, remanded to the said Circuit Court for further proceedings to be had therein, according to law.


source: Caselaw Access Project

author: Mr. Justice CURTIS

license: Public Domain

text:
    Hall Neilson, (United States) Plaintiff in error, v. Clark B. Lagow, David H. Lagow, and Elizabeth S. Lagow, Children and Devisees of Wilson Lagow, deceased.
    The act of Congress, passed on 1st May, 1820, (3 Stat. at Targe, 568,) enacts, “ That no land shall be purchased on account of the United States, except under a law authorizing such purchase.” t
    Whore land was conveyed to trastees, for the pulposo of paying a debt due to the United States, and the highest court of a State decided against a title set iip under that deed, upon the ground that the deed was in violation of the act of Congress, this court has jurisdiction,- under the twenty-fifth section of the Judiciary Act, to review that decision.
    The deed to the trustees being an authority to sell so much of the land as might be necessary to pay the debt, this was not such a purchase as is forbidden by the statute. Nor does the act of Congress prohibit the acquisition, directly, by the United States, of the legal title to land, when it is taken by way of security for a debt.
    Where the trustees purchased, and paid for out of money belonging to the United States, the equitable title, where the legal title to the land had been previously conveyed to them, the acquisition of this equitable title was nothing more than relieving the land of an incumbrance, and was not such a purchase as was forbidden by the statute.
    Where the gro tnds of the decision of the Supreme Court of the State are not stated in the recort, this court will look into the, bill of exceptions taken in the court of original jurisdiction, to see what points were carried up to the Supreme Court, and whether they were necessarily involved in the judgment of the Supreme Court.
    A deed to trustees and their successors in trust to sell and convey a feersimple absolute, vested such an. estate in them without the insertion of the word “ heirs ” in' the deed.
    This case was brought up from the Supreme Court of Indiana, by a writ of error issued under the 25th section of the Judiciary Act. It originally stood in the name of Wilson Lagow, the ancestor of the present defendants in error.
    The point involved was the construction of the act of Congress, passed on the 1st May, 1820, (3 Stat. at Large, 568,) which forbids land from being-purchased on account of the United States except under a law authorizing such purchase.
    At a preceding term of this court a motion was maeje to dismiss the case for want- of jurisdiction, which is reported in 7 How. 772. A brief history of the case -js there given ; and a more particular one is given' in the presen#-bpinion of the court, which renders - any further statement by tljé-Beporter unnecessary.
    It was argued by Mr. Gillet and Mr. Crittenden, (Attorney-General,) for the plaintiff in error, and Mr. Judah for the defendant in error.
    The counsel for the plaintiff in error contended, that the exposition of the statute, given by the court, if true, renders null the security given by , the bank for the debt of $120,308, and interest due to the United States; renders null all other, securities taken for the benefit of the United States upon lands, in any form or manner, from their debtors for thirty years last past; and until after that statute of May 1st, 1820, shall be modified or repealed, it annuls the titles of all purchasers of lands under securities given to the United States within that period by their debtors;, for the instruction, says the act of Congress, “ means any and every mode of acquiring an interest in real estate other than by inheritance; ” “ and the interest which the bank then had in the land remained in the bank.”
    This construction, applied to the facts of the case, has extended a disabling effect of the act of Congress to the uttermost; has strained the disability to a mischievous end, not within the reason, meaning, and intent of the act; has misconceived the purpose of the statute; has overlooked the settled distinctions between legal titles and requisites, between titles to lands and securities for money, or for the performance of an act deemed valuable in law; it has overturned the established principles respecting deeds of trust executed to assure the payment of money; in fine, it has perverted a statute made to prevent the Secretaries of the Tit '¡sury, War, and Navy Departments, from diverting the moneys appropriated from the objects of appropriation, from spending the public money, and running the government in debt on account of purchase of lands, into a statute to inhibit them from securing and collecting debts due to the United States.
    By the deed of trust the trustees had a discretion to demise and lease the whole or any part of the said lands, lots, and houses, until such time or times as a sale or sales thereof could be made, and receive and take the rents and profits ; “ also to foreclose the said mortgage and collect the said notes,” (to wit, the notes of Willis Fellows, of $7,000, for the purchase of the square lot surrounded by streets, and the mortgage on the square lot to secure the purchase-money, which notes and mortgage were assigned by the deed of trust to the trustees, and the subject of the decree of sale, and sale and deed to the trustees, given in evidence by Neilson;) they had a discretion vested in them, or a majority of them, as to the sales to be made, “for cash,.or on credit,” “ on such terms, and in such parts and parcels, as to them shall seem most advantageous,” “retaining thereout, however, their, the said trustees’, expenditures, and a reasonable compensation for their trouble and services,” and, after paying the debt and interest due by the bank to the United States, to return the surplus to the bank, and also all such parts of the said lands and premises, either in fee or in mortgage, as shall remain unsold,” &c. pp. 10, 11, 12. Such being the terms of the deed, the land must remain in the trustees to enable them to perform the trust. Therefore, the statute of uses, or statute for transferring uses into possession, did not operate so as to transfer the land, or the title, or the possession, to the cestui que use, or cestui que trust, the United States. 2 Black. Com. ch. 20, p. 336.
    . Upon the deed of trust it is palpable that the United States are not the purchasers of the land, the title is not in them, nor. the possession; all that they have a right to is the money arising out of the rents, issues, and profits, and sales, when made by the trustees; the money, to the sum of the debt and interest due from the bank, as mentioned in the deed of trust, was all that the United States had a right to demand and have from the trustees ; all that the United States could rightfully demand and enforce in a court of equity, with costs of suit. The land itself the United States could not rightfully demand and have, either by a suit at law or in equity, nor the possession of the land. The deed of trust was but a security for money, not a sale and purchase of the land between the bank and the United States.
    That the defendant, Neilson, was subjected to the action of Lagow, and to judgment of eviction from the land, and mulcted in costs, was induced solely by the erroneous construction of the statute given by the court. From such a suit, such a judgment, and such costs, the defendant, Neilson, had the right and privilege to be exempted; he claimed his right, privilege, and exemption, but was deprived of them by the erroneous construction of the statute as contained in the bill of exceptions taken in the Circuit Cdurt. The errors assigned in the Supreme Court of Indiana brought up for review the construction of the. statute as contained in the bill of exceptions. The Supreme Court of Indiana affirmed the judgment of the Knox .Circuit Court in all things.
    Upon the jurisdiction of this court to. revise the decision of the Supreme Court of Indiana, as being a case properly within the 25th section of the Judiciary Act, it is sufficient to cite the cases of Crowell v. Randell, and Shoemaker v. Randell, 10 Peters, 391 to 399, in which fourteen previous cases upon this 25th section are noticed, and the doctrine is reaffirmed: “ That it is not necessary that the question should appear on the record to have been raised in direct and positive terms ipsissimis verbis, but it is sufficient if it appears, by clear and necessary intendment, that the question must have been raised and must have been decided in order to have induced the judgment.”
    No such verdict and judgment could have been rendered against the defendant, Neilson, in the Knox Circuit Court; if it had not been induced by the erroneous exposition of the statute of May 1,1820, given by the Circuit Court; ■ and the affirmance in the Supreme Court of Indiana clearly and necessarily decides that question raised by the assignment of errors, and affirms that erroneous exposition of the statute of the United States.

      Mr. Judah, for the defendants in error.
    The question is, Had the bank any interest in the premises after executing the deed of the 1st July, 1822, to the trustees 1

    And this question' resolves itself into these:
    1. Was that deed valid ?
    2. If that deed was valid, did it convey the whole interest of the bank ?
    1. We assert that the deed was void by virtue of the seventh section of the act of Congress of the 1st May, 1820, in relation to the Treasury, War, and Navy Departments. That section is as follows: — “ That no land shall be purchased on account of the United States, except under a law authorizing such purchase.”
    That this law was understood by the proper officers at Washington to be in force in 1822, and so late as 1824, is proven by a letter, of Mr. Pleasanton, then Agent of the Treasury, to the House of Representatives, 8th March, 1824, and printed in the American State Papers. Public Lands, vol. 8, 563. And this, too, is shown by the act of May 26th, 1824, which gives to the officers of the Treasury a limited power to purchase on execution. It is decided that the United States may “ enter into contracts not prohibited by law.” United States v. Tingey, 5 Peters, 115, 128; United States v. Bradley, 10 Peters, 348, 359. But where, in the bond or deed, there is a condition or grant which is prohibited, that is illegal and void. United States v. Bradley, 10 Peters, 363.
    If it is said that the interposition of trustees will take this case out of the statute, we reply,
    1. That such a contrivance would be a fraud on the statute. Coke’s rule is as follows: — Quando aliquid prohibetur fieri ex directo, prohibetur et per obliquwm. Co. ‘Lit. 223, b; and see 2 Term Rep. 251-2, quotations from Lord Northington; and Doe v. Carter, 8 T. R. 300.
    2. We assert that, by the deed from the bank, only a life estate was conveyed to Badollett, Harrison, and Buntin.
    Indiana is a' common law State. In its courts the distinction between the jurisdiction at law and that in equity is strictly preserved. The present is a common law action, and the question is as to the legal title. The words in the deed, “ and their successors,” are mere surplusage, not sufficient, to pass a fee-simple. Clearwater v. Rose, 1 Blackf. 137; Roberts v. Forsythe, 3 Dev. 26; 4 Cruise, Dig. 335, 366.

      A grant to a natural person and his successors, passes only an estate for life. Co. Lit. 9, v. And hence, if the deed is void, the title remained in the bank, and, on its. forfeiture, reverted to the Steam-Mill Company, and passed to Lagow. If the deed is valid, but oply passed a life estate, the reversion in fee remained in the bank, reverted to the Steam-Mill Company, and passed to Lagow, and, on the determination of the life estate by the deaths of the grantees, took effect in possession. In either case Lagow has the legal estate, and is entitled to recover at law. If the law, on either of the above positions, is with the defendants in error, we presume this court will decide in their favor. But there is another view of the case which the, counsel for the defendant in error is unwilling to abandon.
    The Supreme Court of Indiana were required to determine whether a new trial should have been granted, and that depended on the question whether, on the whole case, the verdict was right. This required the solution of one, or of two questions. If the deed only conveyed a life estate, and the grantees were dead, it was not material whether the deed was valid of invalid. We deny that there is any thing in this record to show that the court did determine the validity of the deed. It is true that there are instructions on the record in which this question is made, but it is as true that there are on the record the facts from which the other question does necessarily arise. Both questions might have been determined; but it is usual for appellate courts to pass over questions not necessary for the determination of the case before them. And hence we ask, Is it a “necessary intendment” that the Supreme Court of Indiana did decide both the questions in this case ? For we understand that it must appear to this court, if not expressly, by “ necessary intendment,” that some question within the jurisdiction of this court did arise and was.decided; that it is not enough that such question might have arisen and might have been decided. Smith v. Hunter, 7 How. 738, 742; 16 Pet. 281, 285; 10 Id. 368, 391.
   Mr. Justice CURTIS

delivered the opinion of the court.

This case comes here by a writ of error to the Supreme Court of the State of Indiana. The record shows that Lagow, the defendant in error, instituted an action of disseisin in a Circuit Court of the State of Indiana, whereby he sought to recover of Neilson, the plaintiff' in error, a tract of land described in the counts. The tenant having pleaded the general issue, the case was committed to a jury. At the trial, it appeared that Lagow, together with Nathaniel Ewing, John D. Hay, and Caroline Smith, whose title, if any, Lagow is alleged to have afterwards acquired, were in possession of the demanded premises in the year 1820, claiming to own the same, and upon this evidence of title he rested his case.. The defendant then introduced a deed, bearing date September 19th, 1821, from Lagow, Ewing, Hay, and Smith, conveying to the Bank of Vincennes, the State Bank of Indiana, the lands in controversy, excepting a certain square therein described. He also put in evidence another deed ffom the bank to Badollett, Harrison, and Buntin, conveying the same lands acquired'by the bank under the deed last mentioned, and also transferring to the grantees some equitable title to the square excepted out of that deed. This conveyance is made to the grantees and their successors in the trusts declared by the deed, which' are: “ until the sale hereinafter authorized shall be made, the trustees, or a majority of them, or their successor or successors herein appointed, or who may hereafter be appointed agreeably to the mode hereinafter directed, shall and may demise or lease the whole or any part of the said lands, lots, and houses, until such time or times as a sale or sales thereof can be made, and receive and take the rents and profits thereof, also foreclose the said mortgages and collect the said notes; in trust nevertheless, for the use of the Secretary of the Treasury of the United States in extinguishment of the debt due by the said Bank of Vincennes tq the United States; and upon this further trust and confidence that the said trustees, or a majority of them, and their survivor or survivors herein appointed, or which shall hereafter be appointed, agreeably to the mode hereinafter directed, shall and do, whenever thereto requested by the -Secretary of the Treasury of the United States, for the best price that can be got, sell and dispose of, for cash or on credit, on such terms, and in such parts or parcels, as to them shall seem most advantageous, all or any part of the above-described and conveyed lands, tenements, and hereditaments, to any person or persons who may be inclined to purchase the same; and to execute and to acknowledge, in due form of law, deed or deeds of conveyance, unto the purchaser or purchasers, his heir or their heirs and .assigns in fee-simple absolute and upon the further trust that they, the said trustees, or a majority of them, or the survivors of them herein appointed, or hereafter to be appointed agreeably to the mode hereinafter directed, shall and do pay and apply, of and every the sum and sums of money or other proceeds to be raised or paid by the rents or sales of the said lands and collections of the said notes, or any.part or parts thereof, to the proper use of the United States, until the sum of one hundred and twenty thousand three hundred and eight dollars, which is now agreed upon by the said parties, of the first .part, of the one part; and the Honorable Jesse B. Thomas, as the legally authorized agent of the United States, of the other part, as the sum now due, together with interest on the said sum of money, at the rate of six per centum per annum until paid; retaining thereout, however, their, the said trustees’, expenditures, and a reasonable compensation for their trouble and services, returning and paying the overplus, if any, to the said President, Directors, and Company of the said Bank of Vincennes, their successors or assignees ; and also upon this further trust, as to all such parts of the said lands and premises, either in fee' or under mortgage, as shall remain unsold, that they, the said trustees, and their successors, shall stand seized thereof to the use of the United States, until the debt aforesaid shall be fully paid and discharged, and there afterwards to the use of the said President, Directors, and Company, their successors and "assigns forever, provided always, and it is hereby expressly agreed and declared by and between the parties of these presents, that in case of the death of either or any one or more of the said trustees hereinbefore named, or of any trustees hereafter to be appointed, it shall and may be lawful, to and for the said Secretary of the Treasury of the United States for the time being, at any time or times thereafter, by deed duly executed, to fill" up such vacancies; and the said, trustees, when so appointed by the Secretary of the Treasury as aforesaid, shall all of them have the like power and authority to act in the several trusts according to the true intent and meaning of these presents, as fully and amply, to all intents and purposes, as if such new or other trustee or trustees had been actually named herein by the said President, Directors, and Company-of the said Bank of Vincennes; and provided, also, that no trustee now appointed, or to be hereafter named and appointed as above directed, shall in any event be liable for any more than he shall receive, nor for any" loss or damage not occasioned wilfully and designedly by such trustee, or through his gross and wilful negligence.”

Neither the habendum nor the grant in this need contains the word heirs.

The tenant further, offered in evidence, proceedings under a judicial sale of the title to the excepted square above mentioned, by which'Badollett, Harrison, and Buntin, the trustees under the deed of the bank, became the purchasers of the legal title to that square, which was conveyed to them in fee-simple in 1827, and also introduced evidence to show that he was in possession under the trustees with a contract to purchase of them the' entire tract of land demanded.

The plaintiff then put in evidence the récord of a quo warranto against the bank, by which it appeared that in July, 1822, a judgment of forfeiture was rendered against that corporation, and all its franchises and property seized intojthe possession of the State; and he offered proof that Badoliett, Harrison, and Buntin purchased the legal title to the reserved square as trustees, and that the money paid by them was from the funds of the United States, supplied by the order of the Secretary of the Treasury, and that all the trustees were deceased, when the action was brought.

At the request of the plaintiff the court gave the followihg instructions:

1. That on the proof of possession as owners by the Steam-Mill Company in 1820, and of the conveyance by, the company to Lagow, of June, 1827, Lagow, the plaintiff, is entitled to recover, unless the defendant has shown a better title.

2. That the 7th section of the act of Congress of 1st of May, 1820, forbids “ the purchase of any land on account of the United States,” unless authorized by act of Congress.

3. That the term purchase of land ” in law, and in the act of Congress, means any and every mode of acquiring an interest in real estate other than by inheritance.

4. That if the government is prohibited from purchasing land directly in its own name, it is alsd prohibited from purchasing indirectly in the name of an agent or trustee.

5. That if there is any act of Congress or law authorizing the conveyance from the bank to the trustees, it is incumbent on the defendant to show it; and from the fact that the defendant does not set up any such act or law, the jury may infer there is none.

6. That all acts, deeds, and agreements, contrary to the plain langu'age, or even to the policy, of an act of Congress, are void.

7. That if the deed of trust from the bank is contrary to the letter or to the spirit and meaning, or to the policy of the act of the 1st May, 1820, it is void; and the interest' which the bank then had in the land remained in the bank.

The court refused to give the following instruction requested by the defendant:

. “ That it was competent for the Bank of Vincennes to make a deed to trustees for the benefit of the United States, and such a deed is valid and lawful for the purpose for which it was made. To which refusal of the court the defendant at the time excepted.”

A verdict having been rendered in favor of the plaintiff, a motion for a new trial was made and refused, and in conformity with the practice of that court, exceptions were taken to such refusal, and having been allowed, the case went by appeal to the Supreme Court of Indiana, which is the highest court of that State. So that the record, presented to the Supreme Court an assignment of three alleged errors, being the same relied on as causes for a new trial in the court below, viz.:

1. For the error of the court in misdirecting the jury.

2. For the refusal of the court to give the instructions to the jury asked by the defendant.

3. Because the verdict is contrary to the law and evidence.

The Supreme Court affirmed the judgment of the Circuit Court, and under the 25th section of the Judiciary Act, (1 Stat. at Large, 117,) the defendant has brought the record to this court by a writ of error.

To present intelligibly, the legal merits of the case at one view, and to show what question is here for decision, it should be stated, that by the law of Indiana, as expounded by the Supreme Court of that State, (State v. The State Bank, 1 Blackf. Rep.) whatever real property was held by the bank, when its charter was annulled, went to the grantors thereof; .that as Lagow and others, whose rights he is alleged to have acquired, were the grantors of this land to the bank, it became material to ascertain, whether the bank had any and what title to the land, when its franchises were seized; that the bank having conveyed by deed to Badollett and others as trustees, before the forfeiture took effect, the validity of that deed was necessarily drawn in question; that the court did in effect decide, that according to the true construction of section 7th of the act of Congress of May 1, 1820, (3 Stat. at Large, 568,) the defendant could take no title under, or through that deed, the same being void by. force of that act; and consequently the title remained in the bank and passed to Lagow when the charter of the bank was vacated.

The question, therefore, which arises upon this writ of error is, whether the Supreme Court of Indiana rightly construed the act of Congress, which is in these words : That no land shall be purchased on account of the United States, except under a law authorizing such purchase.”

The deed in question conveyed the land to Badollett and others, in trust to sell so much thereof as might be necessary to raise sufficient money to pay a debt due from the. bank to the United States. . It is clear this was not in any sense a purchase of land on account of the United States. In the land itself, the United States acquired by the deed, no interest. They were not even clothed with an equitable right to acquire such an interest through the aid of a court of equity; for their title was not to the whole, proceeds of the lands, whatever they might be, but only to so much of them as might be necessary to pay the debt of the bank. To this extent both the creditor and the debtor had the right to insist on a sale, and whatever residue of land should remain, was by force of the deed, operating by means of a shifting, or secondary use, to go to the bank upon payment in full of the debt due to the United States. It is true, the deed contains some language, which, taken by itself, might raise a use,.executed in the United States; but it is well settled that such language is controlled, by an intent, manifested in -the instrument, to have the legal estate remain in trustees, to enable them to execute a trust which the deed declares ; and where, as in this case, the trust is to sell and convey in fee-simple absolute, a legal estate is vested in the trustees commensurate with the interest which they must convey in execution of the trust. Mott v. Buxton, 7 Ves. 201; Leonard v. Sussex, 2 Vern. 526; and the cases in note (f) to Chapman v. Blissett, Cas. Temp. Talbot, 145-150; Trent v. Hanning, 7 East, 99; Doe v. Willan, 2 B. & A. 84.

It is clear, therefore, that these trustees, and not the' United States, took the land under this deed, and that the latter acquired no interest in the land as such. This court has applied the same principles to the case of an alien, in Craig v. Leslie, 3 Wheat. R. 50, which settles that a devise of land to a citizen as a trustee, upon a trust to sell the land and pay over the proceeds to an alien, is a valid trust, and the interest of the alien is not subject to forfeiture. See also Anstice v. Brown, 6 Paige, 448. If it were necessary, therefore, we should hold that the act of Congress was not applicable to this conveyance, because by it no title to land was purchased on account of the United States.

But we do not think it necessary to rest the decision of the ease exclusively on this ground; for in our judgment the act of Congress does not prohibit the acquisition by the United States of the legal title to land, without express legislative authority, when it is taken by way of security for a debt. It is the duty of the Secretary of the Treasury to superintend the collection of the revenue, and of the Comptroller of the Treasury to provide for the regular and punctual payment of all moneys which may be collected, and to direct prosecutions for all debts which may be due to the United States. 1 Stat. at Large, 65, 66. To deny to them the power to take security for a debt on a<v count of the United States, according to the usual methods provided by law for that end, would deprive the government of a means of obtaining payment, often useful, and sometimes indispensably necessary. That such power exists as an incident to the general right of sovereignty, and rfiay be exercised by the proper- department if not' prohibited by legislation, we -consider settled by the cases of Dugan’s Ex’rs. v. United States, 3 Wheat. 172; United States v. Tingey, 5 Pet. 117; United States v. Bradley, 10 Pet. 343; United States v. Linn, 15 Pet. 290.

These cases decide, that the United States being a body politic, as an incident to their general right of sovereignty, have a capacity to enter into contracts and take bonds, by way of security, in cases within the sphere of their constitutional powers, and appropriate to the just exercise of those powers, through the instrumentality of the proper department, when not prohibited by law, although not required to do so by any legislative act; and we think this same power extends to and includes taking security upon property for a debt already due. The assumption, that Congress intended by the act in question to prohibit the just exercise of this useful power, is wholly inadmissible. In United States v. Hodge, et al. 6 How. 279, a postmaster had made a mortgage of property, real and personal, to secure to the Post-Office Department the surruof sixty-five thousand dollars, or such other sum as might be found due on a settlement six months after the mortgage. This mortgage embraced debts already due, and gave time to the debtor. The sureties on his official bond relied on its giving time as discharging them from their obligation. It is manifest that if the mortgage-were void there was an end of the case, yet it is nowhere suggested that it was invalid, and it is treated by the court as an operative and effectual instrument. The object of any form of conveyance by way of security is not to acquire the dominion and ownership of land, nor even to invest funds therein, but simply to obtain payment of the debt secured. This is the principal thing to which all others are incidental. It may happen that, by the foreclosure of a mortgagé containing no power of sale, the mortgagee may become the owner of the land under the mortgage; but this is not the. object which the parties have in- view when the mortgage is made, and takes place only because their main end is not attained, and by force of proceedings which ensue after-wards because their main end is not attained. Such a transaction is essentially different from a purchase of land in which the parties have nothing in view but to exchange for the present .dominion and title of the land acquired by the purchaser, the money, or other price paid to the seller, and in analogous cases the distinction between these transactions has been recognized. An alien cannot have an action to enforce-.the title to land which he has taken by way of purchase ; but this court has decided, in Hughes et al. v. Edwards et ux. 9 Wheat. 489, that an alien mortgagee may have the aid of a court of equity to foreclose a mortgage by a sale, because the debt is .the principal - thing and the land only an incident. So, though a corporation was by its charter authorized có take mortgages for debts previously contracted, it has been held that a mortgage to secure a debt contracted at the time the mortgage was given, was valid, because the intention of the legislature was only to'prevent the corporation from purchasing lands, and not to prohibit it from taking security, in good-faith, for the payment of its debts. Silver Lake Bank v. North, 4 Johns. C. R. 370 ; Baird v. Bank of Washington, 11 S. & R. 411. It is the opinion of the court, that by the true construction of the act of Congress now in question, the government are not prohibited from taking security upon lands, through the action of the proper department, for debts due to the United States, and that the court erred in giving the act such a construction as to avoid the deed from the bank, to the trustees.

The trustees purchased, at a judicial sale,"the legal title to the reserved square, and paid for it out of the money of the United States; but they had previously taken in trust, by way of security, an equitable title thereto, and this transaction, though under the forms of a purchase, was, in truth, nothing more than relieving this parcel of land of an incumbrance, so that, when they should sell, they might obtain the entire benefit of the security. The purpose was precisely the same as that which induced the conveyance to them by the bank, and is not a purchase by the United States, prohibited by the act of Congress, for the same reasons that the original conveyance is not within that act.

It remains to consider another view taken in argument by the counsel for the defendant in error. The argument is, that the Supreme Court of Indiana may have affirmed the judgment of the Circuit Court, upon the ground that the deed to the trustees not containing the word, neirs, conveyed only a life estate, the reversion remaining in the bank; and that, as the trustees were all dead when the action was brought, the estate in fee-simple in possession had reverted to the plaintiff, Lagow. It has been' settled, by a series of decisions in this court, beginning with Miller v. Nichols, 4 Wheat. 311, and coming down to Smith v. Hunter, 7 How. 738, that it must appear from the record that the highest court of the State passed on one of the ■questions described in the twenty-fifth section of the Judiciary Act; and different modes in which this may appear by the record are pointed out in Armstrong v. The Treasurer of Athens Company, 16 Peters, 281. It has never been held that the record of the proceedings of the highest court must state in terms a misconstruction by that court of the act of Congress. It is enough that it is an inference of law, from the inspection of the whole record, that the highest court did thus misconstrue an act of Congress, and annul a right or title, otherwise valid, by reason of such misconstruction. Any other rule, confining this court to an inspection of that part of the record which sets out the proceedings of the highest court alone, would be a departure from the general principle, that the whole of an instrument is to be looked at to determine the effect of each part of it, would present for decision an artificial and not a real case; and, inasmuch as th,e highest State court often simply affirms or reverses the judgment below, would, in all such cases, deprive the citizen of the rights secured to him by the Constitution ánd the twenty-fifth section of the Judiciary Act. And it has been the practice of this court, whenever necessary, to look .at the jecord of the proceedings of the inferior State court in connection with the proceedings of the highest court, in order to deduce therefrom the points decided by the latter. Now the bill of -exceptions taken in this case in the Circuit Court shows that the construction of the act of Congress was in question in that corut, was misconstrued there, and a deed, under which the plaintiff in error deduced title; was decided to be void by reason of such misconstruction. •

This decision being excepted to, was, by the appeal,, brought before the Supreme Court; and when that court determined that the judgment of the Circuit Court be in all things affirmed, it must be taken that the Supreme Court affirmed the correctness of the decision thus excepted to, unless it appears by the record that they proceeded on some other ground; and so the, inquiry still remains, Whether the Supreme Court did not affirm the judgment of the Circuit Court, upon the ground suggested in argument by the counsel for the defendant in error, that the deed in question conveyed only á life estate, which had terminated before action brought. We cannot make that deduction from this record. It does not appear that the question, what that deed conveyed, if valid, Was. in any manner raised in the Circuit or Supreme Court; and, assuming that the Supreme Court were not confined on the appeal to points raised in the court below, but might have decided upon any ground shown by the record before them to be tenable, we cannot infer that the decision rested on this ground, because we are of opinion it is not tenable. If it had appeared affirmatively in the record that the Supreme Court did decide that the deed conveyed only a life estate, this court would not inquire into the correctness of that decision; but when put to infer what points may have been raised, and what that court did decide, We cannot infer that they decided wrong; otherwise, nothing would be necessary in any case to prevent this court from reversing an erroneous judgment under the twenty-fifth' section of the Judiciary Act, but that counsel should raise on the record’ some point of local law, however erroneous, and suggest that the court below may have rested its judgment thereon.

Now, on looking into the deed from the bank to the trustees, we find that the grant is to them and their, successors, in trust, to sell and convey in fee-simple absolute. The legal estate being in trust, must be commensurate therewith, and. will be deemed to be so without the use of the usual words of limitation. Newhall v. Wheeler, 7 Mass. R. 189; Stearns v. Palmer, 10 Met. R. 32; Gould v. Lamb, 11 Met. R. 84; Fisher v. Fields, 10 Johns. R. 505; Welch v. Allen, 21 Wend. R. 147. As the execution of the trust required the trustees to have a fee-simple, in order to convey one, we are of opinion that the deed to them conveyed a fee, and consequently we cannot infer that the State Court decided that only a life estate passed by the deed.

The opinion of the court is, that the judgment of the court below should be reversed, and the cause remanded for another trial to be had therein.

Order.

This cause came on to be heard on the transcript of the record from .the .Supreme Court of the State of Indiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Supreme Court for further proceedings to be had therein, in conformity to the opinion of this court. ■