author: Mr. Justice GRIER

text:
    Union Bank of Louisiana, Complainants and Appellants, v. Josiah S. Stafford and Jeannetta Kirkland, his wife, Defendants.
    The 25th section of the law of Louisiana incorporating the Union Bank of Louisiana declares that in all hypothecary contracts and obligations entered into by any married individual with the bank, it shall bo lawful for the wife to unite with him; and in such case the property of the wife; whether dotal or of any other description, shall be affected by the contract.
    Where a wife united with her husband in mortgaging property to the bank, the mortgage was good under this clause.
    A sale of the mortgaged property for a twelve months’ bond under an order of seizure and sale was not á novation or extinguishment of the original mortgage.
    Where the mortgage is payable by instalments, some of which were not due at the filing of the bill, the statute of limitations will not apply. The possession of the mortgagor -was not adverse to the mortgagee.
    Where other parties had a nominal interest as defendants, and resided beyond the jurisdiction of the court, it was error in the Circuit Court to dismiss the bill because they were not made'parties. Under the act of Congress of 1839, the court should have gone on td decree against the actual defendants; and in this case all who have a beneficial interest are in court.
    This was an appeal from the District Court of the United ■ States for the District of Texas.
    The facts are set forth in- the opinion of the court, to which the reader is referred.
    It was argued by Mr. Hale and Mr. Coxe for the appellants, and Mr. Harris for the appellees.
    The points made by the appellants’ counsel were the following: —
    IV. The matters of defence set up by Mrs. Stafford are not sufficient to prevent this court from pronouncing a decree against her. The first of her defences consists of the bar of the statute of limitations of Texas, passed Feb. 5,1841, which provides “that all actions of debt-grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action accrued and not after,” and “ that if any person against whom there is or shall be cause of action, is or shall be without the limits of this republic at-the time of. the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the republic, and the time of such persons’ absence shall not be accounted, or taken as a part of the time limited by this act. Hartley’s Dig. sects. 2377, 2395.
    1. This plea is not applicable to an equitable demand of this nature. The debt may be barred, and yet the right to foreclose subsist. Bank of Metropolis v. Guttschlick, 14 Pet. 20, 32; Thayer v. Mann, 19 Pick. 536; Baldwin v. Norton, 2 Conn. R. 163; Clark v. Bull’s Ex’r. 2 Root, 329; 1 Powell on Mort. 392 a, 396 b; Angell on Lim. 494, note 1; Elmendorf v. Taylor, 10 Wheat. 152; Case of Cholmondeley v. Clinton, explained by Stewart v. Nichols, 1 Tamlyn, 207.
    2. The fact that the bill was filed- within four years after the removal of the defendants to Texas, is sufficient of itself to remove the bar; and the language of the 22d section of the act has always hitherto been construed to apply to strangers. Southerst v. Graeme, 3 Wills, 145; 5 Bac. Ab. 236; Dwight v. Clark, 7 Mass. 518; Bulger v. Roche, 11 Pick. 39, 40; Little v. Blunt, 16 Id. 363; Ruggles v. Keeler, 3 Johns. 257; Chomqua v. Mason, 1 Gall. 344, 346; Estis v. Rawlins, 5 How. Miss. 258; Hysinger v. Baltzell, 3 Gill & Johns. 158; Sissons v. Bicknell, 6 N. Hamp. 557; Dunning v. Chamberlin, 6 Verm. 127; Case v. Cushman, 1 Penn. State R. 241; King v. Lane, 7 Mis. R. 241.
    3. The opposite construction, given to the 1st and 22d sections of the act by the Supreme Court of Texas, will not be followed by this court, because it would give the act an extra-territorial effect, is contrary to reason, and cannot apply to cases within the chancery jurisdiction of the United States. And this court has never held a less period than twenty years as sufficient to bar the enforcement of a trust or equitable demand. Reimsdyk v. Kane, 1 Gall. 380, 381; Boyle v. Zacharie, 6 Pet. 659; Robinson v. Campbell, 3 Wheat. 212; United States v. Howland, 4 Id. 108; Fletcher et al. v. Morey, 2 Story, 567; Gordon v. Hobart, 2 Sumn. 402; Flagg v. Mann, Id. 544; Thomas v. Hatch, 3 Id. 176; Bellows v. Peck, 3 Story, 434; Hughes v. Edwards, 9 Wheat. 489; Elmendorf v. Taylor, 10 Id. 162; Prevost v. Gratz, 6 Id. 481; Michoud et al. v. Giroud et al. 4 How. 561; Dexter et al. v. Arnold, 1 Sumn. 110; Gordon et al. v. Hobart et al. 2 Id. 401; Gould v. Gould et al. 3 Story, 536; Piatt v. Vattier, 1 McLean, 160, 162; Rhode Island v. Massachusetts, 15 Pet. 233.
    4. The terms of the .obligation and mortgage of 1841, show that a new cause of action accrued on the failure to pay each successive instalment, as they became due; and such a cause of action did therefore accrue within four years before filing the bill. 1 Pothier, Obi. Evans, 404; Baltimore Turnp. Co. v. Barnes, 6 Harr. & J. Rep. 57; Angell on Lim. 105. And the running of the time was' sufficiently interrupted by the proceedings upon the twelve months’bond of William M. Stafford against the mortgaged slaves, in February and March, 1845, Print. R. 350, 354, 440, 441, 444.
    5. The complainants have used all the diligence in their power, under the circumstances of the case, to enforce their demand, and are not culpable for laches.
    V. The defence of coverture is also insufficient, because by the laws of Louisiana, Mrs. Stafford was authorized to become surety for her husband’s debts by renouncing her privileges; and by the charter of the bank, she was specially empowered to do so; and there is'’no satisfactory proof of her separate interest in the property.
    Beauregard’s Ex’rs v. Piernas and wife, 1 Mart. 294; Brognier v. Forstall, 3 Mart. 577; Chappellon and wife v. St. Maxent’s heirs, 5 Mart. 167; Perry v. Grebeau, 7 Mart. 489; Banks v. Trudeua, 2 N. S. 39; Tremé v. Lanaux’s Syndie, 4 N. S. 230; Drew v. His Creditors, 4 N. S. 659; Civ. Co. La. sect. 2412; Gasquet v. Dimitry, 9 La. R. 586; Act of La. March 27, 1835; Bank of La. v. Farrar and wife, 1 Ann. R. 49; Mechanics and Traders Bank v. Rowley, Ann. R. 1847, 373; Farrar v. N. O. Gas-light Co. Ann. R. 1847, 874; Bein v. Heath, 6 How. 223; Print. R. 309, 323, 324; Civ. Co. La. sect. 2403; Bertie v. Walker, Sheriff, 1 Rob. 431; Civ. Co. La. sect. 2355; Babin v. Brosset, 11 La. R. 59; Lasé v. Dimitry, 7 La. R. 479.
    VI. The defence resting on the ground that the order of seizure and sale on the mortgage of 1841, was a merger of the debt, is simply absurd; the mortgage itself being the judgment, and the order the mere- mode of executing it. Code Pr. La. sect. 732, 733, 734.
    VII. The defence set up in argument that the mortgage lien was discharged by the sale in 1843 to William M. Stafford, cannot be sustained; because, 1st, the facts are not pleaded as constituting such defence nor for that object. 2 Dan. Ch. Pr. 815 ; Cline v. Beaumont, 13 Jur. 326.
    2d. Because the sale is not .proved, the sheriff’s return being fatally defective in not showing a- compliance with the Code of Practice of Louisiana, in the particulars mentioned in the objections filed by the counsel for the complainants, and no act of sale having been produced. Patterson v. Gaines and wife, 6 How. 601; Code Pr. La. sect. 664, 665, 666, 667, 671, 681 682; Lawrence, syndic, v. Bowman, 6 Rob. 21; Duke v. Routh, Ann. R. 1847, 385, 386; Wright v. Higginbottom, 10 Rob. 30; Code Pr. La. sect. 691-698; Dufour v. Camfrane, 11 Mart. R. 675, 706, 709.
    3. Because a sheriff’s sale for credit, on a twelve months’ bond for the payment of the price, cannot, by the laws of Louisiana, or the Constitution of the United States, extinguish the debt or release the mortgage lien. Civil. Co. La. sects. 2186, 2188; Pothier on Obi. Nos. 559, 564; Mülenbruch, Doct. Pand. sect. 475; Just. II. 29, 3; Partidas, V. 14, 15; Bouillo, syndic, v. Merle et al. 9 La. R. 216, 224; Pointz et al. v. Duplantier, 2 Mart. 178, 331; Williams v. Brent, 7 N. S. 205; Reboul’s Heirs v. Behren et al. 9 La. R. 90; Turner v. Parker et al. 10 Rob. 154; Dunlap v. Sims, 2 Ann. R. 1847, 239; Const. U. S. art. 1, sect. 10; and the language of the case of Offut v. Hendsley et al. 9 La. Rep. 1, is readily explained, and only applies when the twelve months’ bond is paid. Troplong, Comm. de Priviléges, No. 996 et seq. iboropared with Nos. 720, 721; Civ. Co. La. sect. 3374 ; Code Nap. 2180; Dig. XX.‘ 6 fr. 6, sect. 1, 2 (Ulpian); Mackeldey, Mod. Civ. Law, vol. 1, 399.
    VIII. The objection to the want of M’Waters, William M. Stafford, and Thomas, as parties, is also unavailing, as their interest is not sufficiently proved, and they reside out of the jurisdiction of the court, and have not, although apprised of the pending of the suit, made themselves parties voluntarily. The act.of Congress of Feb. 28, 1839, was intended to provide for all such cases, and introduces a more indulgent rule. Answer of Mrs. Stafford, Print. R. 122, 123; Story,1 Eq. PI. sect. 79, 135; Mallow v. Hinde, 12 Wheat. 193; Depositions of Thomas and M’Waters. Print. R. 378, 383; Act of Congress, Feb. 28, 1839, Ch. 36, sec. 1 (15 Stat. at Large, 321); Rules in Chancery, xlvii.; McCoy v. Rhodes, 11 How. 41.
    As to M’ Waters, the conveyance in trust to him was not proved, and the trust property and beneficiary are both within the jurisdiction of the court; no decree is sought against him personally.
    As to William M. Stafford, he has parted with all the interest he ever had, and in fact he possessed none, never having paid the price bid for the slaves at the sheriff’s sale.
    As to Isaac Thomas, he sets up no interest, and is shown to have divested himself of all title. The Canal Bank appears to be the only party concerned under Thomas’s purchase in 1840, and the rights of the two banks, which are prosecuting their suits together, and unite in holding by the receiver, the property in dispute, may be settled in the District Court. The sale tp Thomas, being under a mortgage given by Mrs. Stafford in 1836, when she was a minor, is inferior to the title of the complainants under their mortgage of 1837, ratified in 1841, the ratification, relating back even against third parties. Troplong, Comm, de Priviléges Nos. 495, 486, seq.
    IX. The last objection material tó be noticed is that no relief can be given, as the title to about forty-eight of the slaves appears to be in other persons than the defendants; and there is nothing to show what particular slaves are thus exempt from the operation of the mortgage. • In answer to this we say, that the defendants set up title to all the slaves- in themselves, and cannot avail themselves of this objection. Also that the ground of the objection is not true, since the mortgage of 1837, being ratified, binds the defendants, and the title to the slaves referred to purchased by Thomas in 1840, is not shown ever' to have legally passed from them. .If.any party is interested in these 'Slaves it is the'Canal Bank,'and the contending claims of the two banks may be decided by a reference to a master in the District Court. Thomas having left the slaves once claimed by him in the possession of the defendants, without reasserting his claim, or recording his conveyance in Texas, these slaves fall again within the mortgage of the Union Bank. Act of Texas, Feb. 5, 1840, sect. 12; Hartley’s Dig. sect. 2774.
    It is also insisted that the state of the case cannot prevent a decree, even upon the ground taken by the defendants; and that in any event this court would not dismiss the bill, but remand the cause, with leave to take further proof, and to make parties, if" necessary. Doddridge v. Washington’s Ex’rs, 2 Pet. 370; Hunt v. Wickliffe, Id. 201; Caldwell v. Taggart et al. 4 Id. 190.
    X. Should a decree be. rendered for the appellants in this court, they are clearly entitled, under their prayer for general relief, to the application of the hire of the slaves while in the possession of the receiver, amounting now to about $15,000, to be appropriated to the satisfaction of the mortgage debt. Boone v. Chiles, 10 Pet. 177; Caldwell v. His Creditors, 9 La. Rep. 267; Skillman and Wife v. Lacy, 5 N. S. 52; Hutching’s Widow and Heirs v. Johnson’s Heirs, 19 La. Rep. 437; Troplong, Comm. de Privileges, Nos. 404, 697, 778, 840. 2; Expropriation Forcée, No. 29; Proudhon, Dom. de Propriété, Nos, 92, 95, 719; Dig. XX. 1 fr. 16, sedt. 4; Civ. Code La. sect. 461, 467, 537, 3148, 3371.

      Mr. Harris, for the appellees
    contended, that the court below ought not to have taken jurisdiction of this cause, because the proper and necessary parties have not been, and cannot be, made. It is submitted that Isaac Thomas, in his own right, and as the executor of M. P. Flint, has an interest in this case. The mortgage to Thomas and Flint is anterior to that of the bank, and their rights and claims were not released or renounced by what was done, but merely postponed. They only agreed that the bank should have a preference over them, but they have an adverse interest to that institution, in adjusting the amount for which this preference shall exist. They have also - the right to avail themselves of any act of the bank, or its agents, since the confirmatory act of 1841, which might tend to defeat the claim of the complainants entirely, and bestow upon them their original preference. For this purpose, it is contended, they could make any defence to the action. Besides, the mortgage shows Isaac Thomas has a prior claim to about forty-eight of the said slaves..
    Mr. Stafford is also a proper and necessary party. He, at th fe instance of the bank, purchased the property in controversy, under the same mortgage which the plaintiffs are now endeavoring a second time to foreclose. This they are seeking to do, in the absence of any allegation in the bill that this sale to William M. Stafford is either void or voidable. The record not only dis.closes the fact that the sale of this property was,' at the instance of the bank, made to William M. Stafford, but that he has made a partial payment of the purchase-money, and has received a credit therefor. Can. the bank cause the sale to be made ? Can it subsequently in effect confirm it, by receiving (and still holding) a portion of the purchase-money; and can it then, in a court of equity, treat this sale as a mere nullity ? Under such circumstances, it is most respectfully submitted, that William M. Stafford ought not to be passed by as an unnecessary party to this cause.
    It is conceived to be not less obvious that James A. M’Waters, the trustee to whom this property was conveyed by William M. Stafford, ought not to be regarded as an unnecessary party.
    The first and third answers of Mrs. Stafford to the interrogatories propounded to her by the complainant, and the evidence of Frey and Frenet prove that the obligation and mortgage were not given in consideration of money loaned by the bank.
    Exhibit No. 4, and the sheriff’s return, show that this mortgage was foreclosed, and that William M. Stafford purchased the slaves in controversy.
    By the art. 2412 of the La. Code, (notwithstanding art. 2256,) the wife cannot in any manner bind herself for the debts of her husband. The true nature of the contract, (whatever may be its form,) will be inquired into under the laws of Louisiana, where this was made and executed. 2d N. S. Martin’s Rep. 39; 5th Id. 431; 7th Id. 252; 8th Id. 693; 9 La. Rep. 590; 10th Id. 147.
    In the year 1824 the Civil Code of Louisiana was adopted by the legislature, and it went into effect in June, 1825, containing the article 2412. This was but a reenactment of the old law. _At the same session of the legislature the Bank of Louisiana was chartered. A clause was inserted in this charter, permitting married women to become bound with their husbands in certain obligations to that institution. It is submitted that this being an exception to the general law, should be strictly construed. A similar provision was accorded to several other bank charters; and in 1832 the Union Bank was created. By the 25th section of the act, it is provided that in all hypothecary contracts and obligations entered into “ according to the true intent and meaning of this act,” it shall be lawful for the wife to bind herself with her husband, &c. So she can only bind herself in an hypothecary’ contract made according to the intention of the charter.
    The first class of these hypothecary contracts was such, as is contemplated by sections 2, 3, 4, 8, and to these the 25th section would apply. But Stafford and wife not being stockholders, the provisions of these sections cannot be made to apply to this case.
    The next class to which the 25th section was intended to apply, was hypothecary contracts of the husband and wife for the loan of money from the bank. By the laws of Louisiana, a bank cannot loan any thing but specie or its own notes, the representatives of specie. It cannot pay out the notes of another bank at its counter, consequently it cannot make a loan of them. Then, with much, less propriety could' it be said, it would loan or pay out, in this instance, the insolvent obligations of Thomas Barrett & Co. See article 12 Louisiana Code, 4th Louisiana R. 57; 6th Id. 243; and article 2412 of the code, which is a prohibitory law. These, construed in connection with the 25th section of the charter, it is submitted that, under the laws of Louisiana, Mrs. Stafford was not bound by the contract of 1837 or that of 1841.
    It is further contended that the original debt of Stafford and wife (if any ever existed) was extinguished by novation, one of the modes by which obligations may become extinct. See Louisiana Code, art. 2126 and 2181, and notes in Pothier on Obligations, part 3, chap. 2, No. 546, vol. 1, 339.
    The debt (if any) being extinguished as prescribed. by art. 2,126, the mortgage being only a security for its payment, must also be extinguished. See articles 3251, 3252, 3374, Louisiana Code.
    If a debt ever existed it was extinguished by novation, accounting to the provisions of art. 2185 Louisiana Code. See also Barrow v. How, 2d N. S. Mart. Rep. 144, where a creditor took a note in payment of an account, &c.; also, Abat, &c. v. Nolte, &c., 6th N. S., 637, and Hunt v. Boyd & Co. 2d Louisiana R. 111; also art. 2185 Louisiana Code, and Pothier, No; 563, p. 39. The two last authorities show, when taken in connection with the evidence' of Mr. Frey, the cashier, and that of the other witnesses, that the bank, by its agreement and its action in execution thereof, made William M. Stafford its new debtor. in the place of J. S. Stafford and Wife, and thereby discharged the liability of the latter. By agreement the purchaser was to pay by instalments.
    It is contended that' the sale of the property by the bank to William M. Stafford, by virtue of an execution and under an agreement with the purchaser, that he was' to give no security upon his. twelve months’ bond, (which the law required should be given,) fully released the defendants from all liability which might have existed on account of said debt. See 3d Robinson Rep. 156; case of Overton v. Ricaud, in Ann. Rep. 1847, No. 9, page 805; and Co. Pract. art. 681.
    It will be seen by the testimony of Mr. Frey, that a payment was made by William M. Stafford, the purchaser, and a credit given on his twelve months’ bond by the bank.
    When William M. Stafford became the purchaser' of this property, independently of his special contract with the bank, the law would have created a new debt and a new security. Code of Practice., art. 681. In case the new agreement was not complied with, execution must have issued on the bond, and not on. the original mortgage. 10 Martin’s Rep. 425 ; Code Prac. art. 719, 720; see also art. 703, 705; 9 La. Rep. 92; Bullard and Curry’s Dig. 435, sect. 15.
    The record shows that when William M. Stafford purchased the slaves, he also purchased a plantation, belonging to J.. S. Stafford and wife. Upon the twelve months’ bond the bank issued an execution, sold this as the property of William M. Stafford, and became the purchaser of it. Then the bank understood William M. Stafford to be the debtor, and treated him accordingly. ■ If he acquired title to the land by purchase under this execution, why did he not acquire a title to the slaves also ? They were purchased at the same time, and under the same execution. La. Code, art. 3252.
    But it is contended, that though, in this instance, the debt might exist, the mortgage would be extinguished. La. Code, art. 3374; 6th La. Rep. 283.
    If the sale had been irregular it would be contended that the bank could not annul or attack it. For it was made at the instance qnd under the directions of the bank,-and that institution, as the warrantor- of Mr. William M. Stafford, is bound to make his title valid. La. Code, art. 2599, and authorities cited under it. The. sale on execution transfers the property of the thing to the purchaser. La. Code, art. 2508; C. Prac. art. 711; 4 La, R. 9,10 ; Martin’s Rep. 222.
    By.taking out execution on the twelve months’ bond the plaintiff ratified this sale. La. Code, arts. 2252, 2254.
    The adjudication of the sheriff is a complete sale. La. Code, arts. 2585, 2586, 2601; 9th La. R. 180; Code of Practice, arts. 690-695.
    The plaintiff in .execution is the warrantor of the purchaser under it. He cannot have the sale made and then repudiate it. See La. Code, art. 2599.
    The bill alleges that Ihe slaves in controversy remained in the State of Louisiana until about the 28th February, 1845, and that the defendants then unlawfully, and with the intent to defraud the complainants of their just rights in the premises, and of their claims, liens, and privileges, &c. Sec., upon said slaves, fraudulently removed, and caused to be removed, said slaves from the said State of Louisiana to' the Republic of Texas. Record, p. 161, shows that said slaves had been, at the instance of the bank, previously sold to William M. Stafford. This is relied on, in part, to show that the trustee and Mrs. Stafford held adverse' possession of the sales for more than two years before the filing of the bill. See Angell on Limitations, 171 and 513; 2 Story’s Eq. 1520, and note.
    The bill, the allegations contained in the plea, and the petition of the bank, show that the right of action on the obligation and mortgage accrued to the complainants on the 1st of March, 1842.
    It is further contended that the plea of the statute of limitations of four years is a bar to the plaintiff’s action. For the 22d section of this act intended that the statute should cease to run only in the case in which a resident should absent himself from Texas. The supplement to the aet must have this effect, or have none at all. This has now become the settled law by'the decisions of the Supreme Court of the State of Texas. See the case of Snodely v. Cage, and Love v. Dock and Tims.
   Mr. Justice GRIER

delivered the opinion of the court.

The Union Bank of Louisiana filed a bill in the District Court of the United States for Texas, claiming the seizure ánd sale of certain negro slaves which had been mortgaged to them by the defendants in Louisiana and afterwards removed to Texas. The bill was dismissed by the court below for want of proper parties,, and the complainants have appealed to this court. It will be necessary to select, from the voluminous record of the case, only so much of the allegations in the pleadings and of the evidence connected therewith, as will exhibit the several points of law -which have been argued and relied upon in this court. -

The bill sets forth a mortgage made by the respondents through their attorney to the complainants, dated on the 6th of June, 1837, to secure the payment of a loan of $45,000, payable in one year from its date. Among other things, this mortgage included 102 slaves, with their increase. When this mortgage became due, the defendants refused to pay, and opposed the sale of the slaves,, on the ground that, at the time of its execution, Mrs, Stafford was a minor: After some time a compromise was effected between the parties by the intervention of friends. The bank accepted the notes of J. S. Stafford for about twenty thousand dollars of their debt, and Mrs. Stafford joined her luisband in a mortgage on the same property for the sum of $30,000 payable, the interest annually, and the principal in. annual instalments, commencing on the first of March, 1844, and ending in 1851. This mortgage is dated on the 22d of May,-1841. It recites the' original mortgage of 1837, acknowledges the loan of $45,000 by the bank to respondents “ for the purpose of assisting them .in their pecuniary matters and for the particular purpose of paying debts due by the wife.” • It recites that the wife being now of full age, “ is anxious to do away with any vice, defect, or informality which might vitiate of impair the previous mortgage,” and thereby “ approves, ratifies, and confirms it to the amount and extent of $30,000, so that the two instruments shall be considered as one mortgage.” Isaac Thomas also intervened and became a party to this mortgage, in his own right, and as administrator of Michah P. Flint, stating that Stafford had given a mortgage to Flint in his lifetime on a part of these negroes (dated 9th June, 1836) to secure him for indorsements, and likewise a mortgage to said Thomas and Flint, dated 22d of April, 1837, for $100,000 for the same purpose ; and agreeing to release and discharge both these mortgages so far as to give priority to the mortgage to the Union Bank. “ This waiver and postponement by said Thomas, however, being made without prejudice to the rights acquired by him in a portion (about 48 in number) of the above-named slaves, at a sheriff’s sale of the property at the suit of the New Orleans Canal- and Banking Company on the 8th. day of August, 1840.”

The bill further alleges, (and this allegation is fully proved by the evidence in the cause) that these slaves remained in the possession of the respondents from the date of the mortgage till February, 1845, when they were fraudulently removed by them to the State of Texas for the purpose of evading the payment of this and other debts seemed upon them; and that Stafford has threatened to remove them out of that State to Mexico if such a step should be necessary to prevent them from being seized to satisfy his debts.

To prevent this, a receiver was appointed by the epurt, and by means of a writ of assistance, a part of the slaves have been taken into his possession with much difficulty and at great expense.

The answer of Mrs. Stafford admits the mortgages, and that the slaves have been brought to Texas, and that she holds them in her possession, subject to the order of the court. Without attempting to give an abridgment of the various matters alleged in this answer, we shall proceed to notice the several points of defence made by counsel-in the argument, stating the allegations, and facts which tend to elucidate them; without regarding the order or peculiar statement of them in the answer.

I. Was this, mortgage valid and effectual to pass or bind the interest, “ property, and right of the wife, whether dotal or of any other description ? ”

In the decision of this question, it is not necessary to take into consideration the doctrines of the civil law or of the Louisiana Code (art. 2412) concerning the power of the wife to bind herself as surety for the debts of her husband; as we are of opinion that the 25th section <$f the act of April 2d, 1832, incorporating the 'Union Bank of Louisiana, is conclusive upon this point. It is as follows:

“ Sect. 25. Be it further enacted, &c., that, in all hypothecary contracts and obligations entered into by any married individual, with or in favor of said Union Bank of Louisiana, Or with any of its offices of discount and deposit, according to the true intent and meaning of this act, it shall be lawful for the wife of the said individual to bind and oblige herself jointly and in solido with him; and in such case, the property, and right of the wife, whether dotal or of any other description, shall be affected by the said contracts or obligations : Provided, That the said wife be of the age of majority at the time of entering into such obligations or contracts.”

Now, it s admitted that, when the latter instrument of mortgage was executed, the wife was of full age.

That it is a hypothecary contract for the loan of money by the bank, is evident from the face of the deed. And if the recital in the mortgage, that it was given for a loan of money, be not conclusive evidence of that fact, the testimony in the case fully shows that the consideration of it was the loan of $45,000, which was set to the credit of Stafford on the books of the bank, and drawn out by his checks. The purpose to which this money was applied was a matter with which the bank had no concern, and which cannot affect the validity of its security.

This instrument was a public áct, duly acknowledged, and was therefore a binding contract or obligation, to affect the “ property and right of the wife, whether dotal or of any Other description,” and by the laws of Louisiana, operated as a judgment,' with lien on the property specially described in it. See Bank of Louisiana v. Farrar, 1 Ann. Rep. 49.

II. It is alleged, in' the answer, that this contract .of mortgage has been novated and extinguished.

The facts on which this objection rests are as follows:— The instrument of mortgage contains a covenant that, “ in case of failure on the part of the mortgagors to pay any or either of said instalments, or any or either of the amounts of interest, it shall be sufficient cause to foreclose the same and enforce the payment by such legal process as the 5 we of the case shall or may require.” The mortgagors, having failed to make any payment of the annual instalments of interest, in April, 1843, the bank obtained an order of seizure and sale of the mortgaged property. According to the usual course of proceeding in such cases, when the sheriff cannot obtain a bid for cash, to the amount of two thirds of the appraised value of the property, it is again offered for sale on a credit of one year-, the purchaser giving what is called a twelve months’ bond; and if the purchase-money be not paid in that time, the mortgagee may have an order of seizure and sale on this bond. On this last sale, the property is sold .for cash (subject to all previous liens) to the highest bidder. In this case-the mortgaged property was bid off by William M. Stafford, a biother of respondents’; he gave his twelve months’ bond; the property remained, as usual, in the possession of the respondents; and no part of the purchase-money was paid at the end of the year. The bank then issued process for a final sale of the property to the highest bidder, for cash. The lands included in the mortgage were sold; but the negroes were fraudulently carried off by the defendants to Texas. The amount for which the lands sold did not satisfy the first instalment of the principal of the mortgage, due in March, 1844. .

The question which arises on these facts, is, whether this sale to William M. Stafford, and his twelve months’ bond, is a novation or extinguishment of the original mortgage. If it was, the complainants should have filed their bill on the twelve months’ bond, which operated as a judgment and mortgage on the property, and not on the original mortgage, as has been done in this case.

“A novation takes place in three ways” (Louis. Code, art. 2185.). “ 1st. .When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished. 2d.. When a new debtor is substituted to the old one, who is discharged by the creditor. 3d. When, by the effect of a new engagement, a new creditor is substituted to the old, With regard to whom the debtor is discharged.”

Whether • this twelve months’ bond operates as a novation, and discharges the mortgage or judgment without actual payment or satisfaction, is a’ question depending so entirely on the peculiar laws of Louisiana, that we must look alone to the decisions of the tribunals of that State for its solution. The cases of Offut v. Hundsley, 9 Louis. Rep. 1; Reboul v. Behren, Id. 90; and Dunlap v. Sims, 2 Ann. Rep. 239, are directly in point on this question. In the latter case, the court says, “No principle is. better settled in our law than that a .sale.of property ünder execution, on a credit of twelve months, neither satisfies the judgment nor novates the debt.”

On this point of defence, therefore, we must decide, that the sale to William M. Stafford and his twelve-months’ bond (which it is admitted has never been paid) did not novate or extinguish the lien or debt secured by the original mortgage .to the bank. This result is consonant with the true equity and justice of the case, as it is transparently clear, from the whole transaction, that William M. Stafford’s interposition in this matter was merely to gain further time for the respondents, he being wholly unable to satisfy the debt of the bank, according to the tenor of his bond. His transfer of the negroes to Mrs. Stafford, or to M’Waters as her trustee, left the case, as between these parties, in precisely the same position as it stood at first. The negroes always remained in possession of respondents, subject to the lien of the mortgage, notwithstanding this complication of sales and nominal transferees.

III. The respondent, both by her pleas and in her answer, sets up the statute of limitations of Texas as a bar to the proceeding in this case; she relies, first, on the section which limits all actions of debt, upon any contract in writing, to four years; and, secondly, that all actions for detaining personal property, or for converting such property to one’s own use, shall be commenced and sued within two years next after the cause of - such action or suit, and not after;” and alleges that “ she-has converted the slaves to her own use, and held- them adversely to the complainant, from the 9th of April, 1845, until after the commencement of this suit, that is to say, for more than two years before the filing of this bill.”

However much it may be the policy of Texas (as it is alleged in the cases of Love v. Dock, and Snodely v. Cage, lately decided in the Supreme Court of that State) to give a liberal construction to then statutes of limitation in favor of debtors, for the purpose of encouraging immigration, it is abundantly apparent that these sections can have no application to a bill in equity to enforce the sale of mortgaged property, whether the slaves in question be considered either as personalty or realty.

The first of the eight instalments of the principal debt became ’due on the 1st of March, 1844, and the last in 1851; and the bill was filed in February, 1848, less than four years after the first instalment became due; so that, if this were an action of- debt, the plea could apply only to the instalments of interest payable before 1844. And, in such an actipn, it would be no answer to this objection to the plea of the statute, that the creditor had a right to sell the mortgaged property on the failure or neglect of the mortgagor to pay the first instalment. In cases of concurrent jurisdiction, courts of equity are said to act in obedience to the statutes of limitation, and in other case's they act upon the analogy of the limitations of law. A bill to foreclose a mortgage and enforce the sale of the mortgaged property has no analogy to an action of trover, detinue, or trespass, The claim of the mortgagee is a “jus ad rem ” not a “jus in re.” He does not claim as owner of the property. The possession of the mortgagor is not adverse, but under the mortgagee. And, although this species of realty is movable, and may be carried away or fraudulently concealed from the pursuit of the mortgagee, such acts cannot be alleged in a eourt of equity as an adverse possession, which will defeat the lien of the creditor after two years, in analogy to. the limitation of actions at law for taking and carrying away or converting to one’s own use the property of another. A chancellor- will not permit a party to plead his own fraud to defeat the equity of the complainant. This plea must therefore be overruled.

IV. The court below decided the three points of defence which we have just considered against the respondents, but dismissed the bill of complainants for want of proper parties.

This constitutes the fourth and last ground of defence which has been urged in the argument of the case in this court.

It is contended, that William M. Stafford, James A. M’Waters, and’Isaac Thomas should have been made parties to this bill, and that without such parties the court cannot proceed to a decree in favor of complainants.

It is admitted, that William M. Stafford, James A. M’Waters, ahd Isaac Thomas reside in the State of Louisiana, and out of the jurisdiction of the court. And it is contended that, as the complainant cannot therefore compel them to become parties, he is utterly remediless, notwithstanding the original mortgagors arein court, and have in their possession the property subject- to the lien of his mortgage.

It is true that, if these persons had been within the jurisdiction of the court, they might properly have been made parties ; but there is no decree sought against either of them, nor will a decree in favor of the complainants affect any rights which they may have.

It is unnecessary, in the consideration of this point, to bring under review the doctrines advanced on this subject in treatises on equity practice and pleadings, or cases decided in England or elsewhere. The act of Congress of 28th of February, 1839, is conclusive of this point. It enacts, “ that where, in any suit at law or in equity commenced in any court in the United States, .there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within, the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction and procéed to trial and adjudication of such suit between the parties who • may be properly before it. But the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer ; and the nonjoinder of the parties who are not so inhabitants, or found within, the district, shall constitute no matter of abatement or other objection to said suit.” Notwithstanding the complication of mortgages, sales, and transfers of the slaves now in question, it must be observed, that they have never been out of the possession of the respondents till seized with a strong hand by the marshal oñ á writ of assistance, and delivered to the receiver appointed in this case. And, as we have seen, the transfer to William M- Stafford by the sheriff,, on his giving a twelve months’ bond, left them still subject to the lien of the mortgagees, as the bond was never paid. • The transfer from Stafford to M’Waters, for the separate use.of Mrs. Stafford, one of the original mortgagors, did not affect the rights of the mortgagees; neither Stafford nor M’Waters have or claim any beneficial interest in the property. M’Waters was examined as a witness, and might have been made a party if he chose. It would be a strange perversion of justice, if the remedy on a mortgage could be defeated by transfers of this description to persons living out of. the jurisdiction of the court. If this act of Congress had never been passed, a court of equity would not suffer the remedy of ¿ mortgagee to be defeated by such a scheme.

If it were true’ that Isaac Thomas still retained his claim to forty-eight of the slaves included in the mortgage, it would be no reason why the complainant should not be entitled to his decree as against thfe respondents, leaving Thomas to prosecute his claims, if he had any, at such time qnd in such manner as he might elect. But the plea set up in the answer on this point must be taken with the facts connected with- it, as alleged by the respondent, in connection with the testimony of .Thomas himself, who was examined as a witness in the case. By these it appears that the New Orleans Canal and Banking Company had a previous mortgage for $10,000 on these forty-eight slaves, executed by Stafford and wife; that a writ of seizure and sale issued thereon, and these slaves were sold to Isaac Thomas, who left them in possession of the respondents, but never paid for them; that the slaves were then sold as the property of Thomas, and purchased by one Flint, who afterwards released his right to the Canal Bank, who sold to William M. Stafford, who transferred ■his right, to M’Waters in trust for Mrs. Stafford. It appears also, by the record, that the Canal Bank have filed their bill, claiming their lien, on these slaves, who aré in the hands of the receiver appointed- in this case, and who, by arrangement be-' tween the parties, holds them subject to their respective rights. The Canal Bank, though not formally made a party to this bill, is in court claiming its rights through Thomas. The court have therefore before them all the parties claiming any beneficial interest ■ in these slaves, and before they distribute the proceeds of the mortgaged property, can compel the parties interested either ■to settle their respective claims amicably, or by action, or inter-pleader, and thus make a final decision binding on all the parties who have any claim to the' property.

The decision of the District Court dismissing the bill for want of proper parties must therefore be reversed, and the record remitted to the court below, with directions to enter a decree in favor of the complainants, and have such further proceeding as to justice and equity may appertain.

Order.

This cause, came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District 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 District Court, with directions to that court to enter a decree in favor of the complainant, and for such further proceedings to be had therein as to law and justice may appertain.


source: Caselaw Access Project

license: Public Domain

text:
    New Orleans Canal and Banking Company, Appellants, v. Josiah S. Stafford and Jenanetta Kirkland, his Wife.
    The principles established in the preceding case of the Union Bank of Louisiana, against Stafford and wife, again affirmed.
    This was an appeal from the District Court of the Uniied States for the District of Texas.
    Although the complainants were not the same as in the preceding case of the Union Bank of Louisiana v. Stafford and Wife, yet the respondents were the same and the subject-matter was a breach of the same transaction. The only difference is stated fully in the opinion of the court; and by agreement of parties the two cases were consolidated in the court below and to be argued together.
    It was argued by Mr. Crittenden, (Attorney-General) for the appellants, and Mr. Harris for the appellees.

      Mr. Crittenden contended,
    1. That the court below erred in dismissing the bill for the want of proper parties, and cited 6 Wheat. 559; 10 Wheat. 167; 11 Wheat. 133, 134. Act of Congress, 28 Feb. 1839; 5 Stat. at Large, 321, sect. 1.
    2. That there was no proof of Mrs. Stafford’s minority, and if there were, that she afterwards confirmed the mortgage.
    3. That there was no proof of her matrimonial or dotal rights or their amount.
    4. That the statute of limitations could not apply. No court of equity would sanction a fraudulent removal of the property with á view to found a place of limitations upon it. 2 Story’s Eq. 188, ch. 23, sect. 903. Eden on Injunctions, ch. 16, pp. 349, 350.
   Mr. Justice GRIER

delivered the opinion of the court.

The New Orleans Canal and Banking Company filed their bill in the District Court of the United States for Texas against Josiah S. Stafford and wife, setting forth that the bank by an act of contract of sale and mortgage made on the 12th of July, 1844, in the parish of Rapides and State of Louisiana, sold to William Mainer Stafford thirty-three negro slaves, which the bank had purchased at a sheriff’s sale of the property of Isaac Thomas, at the suit of Adelia E. Flint. By this act of sale and mortgage, Wiliam M. Stafford covenanted to pay, as the price of the slaves, the sum of $12,853, with ^interest in eight annual instalments. That in addition to the vendor’s privilege reserved on the slaves sold, William M. Stafford further mortgaged his interest in some other slaves which said Stafford had purchased on the 6th of November, 1843 at a sheriff’s sale at the suit of the Union Bank of Louisiana. That Stafford agreed that in case any of the instalments were'not paid when they severally became due, then the bank might obtain an order of seizure- and sale, (or judgment in the ordinary way at their option) and sell the mortgaged premises to .the highest bidder without benefit of appraisement'. That the respondents, with full notice of this act of sale and mortgage and of the claims of the complainant, fraudulently removed and transported all the slaves to Texas, and now hold and detain them,- and endeavor to scatter and secrete them, for the purpoise of evading the just claims of complainant. That the slaves are now in possession of the court by a receiver in a certain suit pending between the Union Bank of Louisiana and the respondents. That four of the notes secured .by complainant’s mortfage fire due and payable, and remain unpaid. That William I. Stafford has no property in Louisiana; that he resides ih the State of Louisiana and without the jurisdiction of the court, and cannot therefore be made a party to the bill.

This bill was taken pro confesso against the husband. The wife filed an answer in which she admits the contract of sale and mortgage between the bank and William M. Stafford, but alleges a purchase of them by James A. M’Waters, who holds them by a deed of trust for her separate use. She claims that .she is a .feme covert, and that by the laws of Louisiana she has a lien upon all the slaves in the bill mentioned for the security of her matrimonial, dotal, -and paraphernal rights, to the amount of ¡$66,000. She admits the slaves were all brought to Texas except five, four of whom are dead, and that the others are now in possession or ordered to be delivered to a receiver appointed by the court at the suit of the Union Bank of Louisiana, and prays that the bill may be dismissed, because William M. Stafford, James A. M’Waters, and the Union Bank are not made parties-to the bill. .

To meet the allegation of matrimonial, dotal, and paraphernal rights, the complainants amended their bill and gave in evidence a mortgage by respondents, duly acknowledged to bar the rights of the wife, dated 11th May, 1836; and including the thirty-three slaves now in question, with some others. Also, that an order of seizure and sale of forty-five negroes, including these thirty-three, was regularly, issued, and the slaves sold to General Isaac Thomas on the 8th of August, 1840.

■ That on the 15th of September, 1840, Thomas mortgaged them again to the bank to secure the payment of ten thousand dollars. That in November, 1842, Adelia E. Flint, by. execution on a judgment which had a lien on the property of Thomas anterior to the mortgage of the bank, sold at sheriff’s sale thirty-three of said negroes, which were purchased and paid for by the Canal Bank in 1844.

The amended answer of the wife sets up the defence, that she was a minor in 1836, and therefore the first mortgage to the bank was not valid to bind or affect her rights; she pleads, also, the statute of limitation of two years, averring that, since the slaves were brought to Texas, she has held them adversely to the claim of the mortgagee. But there is no evidence on the record to show that she was a minor in 1836, or that William M. Stafford sold the slaves in question to M’Waters, or that M’Waters had any title to them whatever. That the slaves were carried to Texas by respondent’s husband clandestinely,-to avoid the pursuit of creditors, is also satisfactorily proved.

The defences made on the argument in this court were:-—

1. The minority of the plaintiff.

This was an allegation of the answer not responsive to the bill, and there was no proof to substantiate it.

The statement of a witness, in' his cross-examination, that he heard Stafford say his wife was not of age in 1836, was not responsive to any question proposed to Mm by the respondents, and is no evidence of the fact.

2. The charter of the Canal Bank, complainant, has a section in the same words with that which we have noticed in the opinion just delivered in the case of the Union Bank; and what we have said in that case, as to the power of the wife to join her husband in such securities to the bank, equally applies to the present case, and need not be repeated.

3. The plea of the statute of limitations has also been disposed of in the preceding case.

4. What was said in the previous case, as to the propriety of dismissing the bill for want of proper parties, equally applies to this.

The forty-five slaves sold to Thomas, including the thirty-three now in question, were never taken from the possession of respondents ; and, though Thomas proves that he offered a reward of $500, he was unable to get information by which to distinguish or sever them from the other slaves in possession of respondents. Hence we see the reasons for these transfers to William M. Stafford, the younger brother of respondents, who was without means to pay; and the very'liberal terms given by the bank were evidently for the purpose of favoring the defendants, and leaving the slaves in their possession.' We cannot shut our eyes also to the fact that respondents were the real actors and persons interested in' all these manifold and complicated mortgages, sales, and transfers, which all seemed to have but one result, to wit, that the respondents kept possession of the slaves, and never paid their debts. And having clandestinely earned them away and attempted to scatter and .conceal them from the pursuit of their creditors, it would be a reproach to a court of equity, if it could be truly said that it was unable to afford the complainants a remedy because the nominal and insolvent obligee in the mortgage lived in a different State from those who, in combination with him,-have transported tip mortgaged property within the bounds of a different jurisdiction.

The difficulty arising from the conflicting claims of the Union Bank, can be settled by The court, as we have already shown in our opinion in that case. In fact, this bill is itself in the nature of an intervention, setting up the claim of complainants to property already in possession of the court. And the court have it fully in their power to compel the banks to interplead with one another as to the priority of their lien or rights to the property or its proceeds; as each of them has shown a right to a decree as against the title of the respondents, they will be indifferent as to the result, unless the property shall produce more than sufficient to pay both mortgages.

The décree of the District Court is therefore reversed, and the -record remitted with directions to enter a decree in favor of complainant, and cause such other proceedings as to justice and equity may appertain.

Order

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by'this court, that the decree of the said District 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 District Court, with directions to that court to enter a decree in favor of the complainant, and for such further , proceedings to be had therein as to law and justice may appertain.


author: Mr, Justice NELSON Mr. Justice DANIEL

text:
    Abraham Rich and James Harris, claimants of the Ship Martha, her tackle, apparel, and furniture, Appellant, v. Charles Lambert and Robert Lambert, copartners, trading under the firm of Lambert and Brother, and others. Same v. South Carolina Railroad Company.
    Where several owners of a cargo filed libels in ram against the vessel for damages done to the goods, and these libels were consolidated by order of the court, which afterwards decreed damages in favor of the libellants, in some cases to more and in. some to less than $2,000, those cases where the .damages are less than that suiñ must be dismissed, on an appeal to this court, for want of jurisdiction.
    Where further evidence was taken after the appeal to this court was entered, under the authority of an act of Congress passed in 1803, (2 Stat. at Large, 244,) the issuing of the commission by the clerk of the Circuit Court, and the uniting by both parties in its execution, furnish a presumption that the proper order was given. ’ If not, the parties have waived all objection.
    Where goods on board of a ship received a damage which must necessarily have accrued during the voyage, the onus probandi is upon the master and owners to show that it was occasioned by one of the perils of navigation within the exception of the bill of lading.
    The master is not to blame for bringing sacks of salt between decks, if it be well stowed and packed, and secured with proper dunnage. The usage of trade is to carry salt in that way.
    The evidence in the present case shows' that the damage was caused by the perils of navigation.
    These two cases were included in the same judgment of the Circuit Court of the United States for the District of South Carolina, and were argued together in this court, upon an appeal from that judgment.

      Originally, ten several libels were filed by the owners or consignees of goods shipped on bpard the Martha at Liverpool, bound to Charleston. The libels claimed damages on, account of injury to the property by the negligence or misconduct of the respondents, and particularly that a large quantity of Salt was improperly stowed. The proceeding was in rem against the vessel, in the District Court of the United States.
    Richard Rich, captain of the ship, intervened for himself as master, and for the owners, Abraham Rich and James Harris of Massachusetts, and Samuel Snow of Maine.
    The answers denied all charges of neglect and mismanagement, and averred that all the cargo on board was well and securely stowed according to the usage of shipping; that the ship was sound, stanch, and every way fitted for the voyage; that she encountered severe gales and heavy seas on the voyage, and made much water, and in consequence thereof, and of the leakage of the ship, and the change of latitude and consequent warm weather, the water so taken in became warmed and was converted into steam, and' caused a damp atmosphere to pervade the lower hold of the ship, which no power, care, or diligence, on the part of the master, could have avoided, but that the same was the inevitable result of the ordinary dangers of navigation, &c.
    The answers further aver, that the salt on board was stowed on the second deck, where it was necessary to be stowed in order to steady the ship and prevent injury to the cargo in the hold; that access between that deck and the hold where the libellants’ goods were stowed, was wholly and effectually cut off, .and was independent of the cargo in the hold, and could have no effect upon the same more than if it had been stowed in another ship; that the salt was well stowed in the ordinary and customary part of the ship, according to the approved usage of vessels trading to the United States from Liverpool.
    Nine of the ten separate libels were ordered by the court to be consolidated. The tenth case, in which the South Carolina Railroad Company were libellants, was not included in this order. ■
    • Atrial was had in the District'Court upon libels, answers, and proofs, which resulted in the passage of a decree in favor of the libellants, awarding to them, separately, the following sums of money:
    No. 1 Claim of Lambert & Brother $2,077 39-
    “ 2 “ John Graveley . , 447 90
    “3 “ Barnwell & Ravenel 1,628 42
    “ 4 “ A. Moffett & Son . 136 97
    “ 5 W. & J. E. Adger ' 868- 29

      No. .6 Claim of A. Gordon . $442 34
    «7 “ . W. L. Timmons . 806 77
    Dick & Crews..... 350 02 « §
    “ 9 Morton & Courtney . . . 214 64
    “ 10 Jas. Adger & Co..... 623 40
    S. N. Hart . “ 11 368 02
    Watson & Johnston . . . 460 26 “ 12
    “ 13 Rooseyelt, Hyde & Clark . . 172 09
    “ 14 S. Mowry & Son . ■ . . . 173 69
    “ 15 South Carolina Railroad Company - 2,045 11
    $10,815 31
    From this decree, the claimants appealed to the Circuit Court, where further evidence was heard, and the decree of the District Court affirmed, with the further addition of $774.90, which had in the interim been paid to the respondents by the South Carolina R. R. Company.
    The respondents appealed to this Court, and after the entry of the appeal took further evidence under the act of Congress of 3d March, 1803. 2 Stat. at Large, 244.
    It was argued by Mr. Evans and Mr. Hunt, for the appellants, and by Mr. Coxe and Mr. Butler for the appellees.
    The points made by the counsel for the appellants
    were the following:
    The allegation in the libel is that the ship was loaded betweén decks with a quantity of salt in bags; that the goods damaged were stowed in the lower hold, under the middle deck, and that the salt, between decks, leaked and passed through the deck, and damaged the goods.
    Unless this proposition is established as a fact, the libellants "have no case. The ground taken is, that such stowage was unskilful and dangerous, and therefore the storms and tempests, which were proved to have occurred, will not excuse this unseamanlike and dangerous stowage.
    This leading allegation of the libellants is denied, and it is .contended that the proof establishes, —
    I. That, in point of fact, the salt did not leak or drip any brine, upon the goods in the hold, for these reasons:
    1st. That the bags, when unloaded, were dry.
    2d. That the dunnage was dry.
    3d. That the surface of the between-decks was unstained around the.piles of salt. •

      4th. That the quantity of salt water, which all admit was necessary to produce the injury, say, “ many hogsheads,” could not, in the. nature of things, have deliquesced from the salt, between decks, without wetting the bags and decks. The hatches being found tight, and being higher than the surface of the deck, the brine, if any did leak, must have gone through the seams of the second deck, and yet no external stain was found around the-piles of salt.
    II. That the stowage was seamanlike and necessary; the weight of the salt being required to steady the ship.
    III. That the decks were well calked when the voyage commenced ; and if any injury-had occurred, if is solely attributable to stress of weather. This point was partially established by the testimony taken before the district and circuit judge, but has since been put beyond controversy by the examination of the ship-carpenter, taken by commission, and now introduced for the first time, so that the case of the claimants depends upon these two propositions: 1st. That the salt stowed between decks did not, and in the nature of things could not, have caused the damage. 2d. That the stowage, under the circumstances, was well warranted by the usage in such instances, and if any damage was caused by it, it resulted from a change of facts produced by heavy storms and working of the vessel.
    IV. These being established, the next important proposition is, that the storms and waves, as fully proved to have' been met on the voyage, is the only remaining cause of loss, and is a risk which falls on the insurer, and not on the carrier; as we contend that, as soon as the liability of the insurer begins, that of common-carrie.r ends.
    Certainly, if on the inception of the voyagé, the cargo was properly stowed, and the vessel sea-worthy, the allegations being identical and confined to one fact, the stowage of the salt, we must look to the answer which raises the issue.
    The issue is raised in the pleadings by the allegations by libellants, that certain salt stowed between decks was the cause of injury, by the, salt dripping in large quanties through the second deck, and injuring the goods stowed in the hold; and a full or unequivocal denial, by claimants, that said salt was improperly stowed, and especially, that it was delivered safely in Charleston, dry and in good order, and that none but the goods in the hold were injured,, and fully accounted for by the dangers of the.seás.
    This issue is to be resolved by the testimony, which, on behalf of the libellants, failed in any positive proof that the salt caused the injury, or that it was unseamanlike stowage.
    The counter proof was positive. The admitted fact that the salt was found dry on opening the hatches, not a stain on the lower bags, no marks of brine from the pile of bags, all rendered it a physical impossibility that a large quantity of brine had leaked out during the voyage; and, consequently, being impossible, it was not true.
    The witnesses may be divided into the following classes :
    1. Those who examined the vessel when the hatches were taken off, and broke out the cargo.

      2. Those who state the usages of shipmasters to prove the salt well stowed.
    3. The crew and captain, and the new testimony of the ship-carpenter, to prove the vessel was stanch, and particularly that the decks were well calked, and but for the storms the goods would have been safely landed.
    The testimony was then examined.
    The counsel for the appellees contended: —
    1st. That so far as regards the eight libellants, to wpom these decrees award sums less than $2,000, the appeals should be dismissed for want of jurisdiction. The interest of these parties are wholly distinct and independent; as such they were presented in separate libels ; as such they were established .by independent evidence; as such they were reported on by the clerk; and as such they are adjudicated upon by both the District and Circuit Courts. '
    The decisions of this court have established this principle so far as the interests of the claimants are separable. Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 Id. 11; Spear v. Place, 11 How. 522.
    2d. On the mérits. There does not seem to be any contrariety in the evidence as to the principal fact in the case, viz., that the goods of the libellants sustained damage during the voyage from Liverpool to Charleston. The main question which presented itself was as to the cause of that damage.
    The following points are established by the evidence:
    1. The goods were shipped in good order and condition, as shown by the bills of lading. Benjamin v. Sinclair, 1 Bailey. S. C. Rep. 174.
    2. That they were damaged when delivered at the nort of discharge.
    3. This throws upon the carrier the burden of showing that the injury resulted from some cause for which he is not responsible. Forward v. Pittard, 1 T. R. 27; Story on Bailm. 509; 2 Kent’s Com. 602; 1 Bing. 607.
    4. The evidence shows that this injury did not result from a storm or the dangers of the seas, for the vessel appears to have sustained no injury.

      5. It did result from the salt which was on board between decks.
    6. The evidence is not, when properly examined, contradictory, but if so, it preponderates against the appellants.
   Mr, Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States, held in and for the District of South Carolina in admiralty.

The several libels were filed in the District Court, against the ship Martha, by the owners of cargo brought in the same from Liverpool to Charleston, for damage done to the goods in the course of the voyage.

Five of the separate owners of cargo joined in one of the libels, and each of the others filed separate lib'els; to each of which answers were put in by the respondents, and the parties proceeded in the usual way to take their proofs. Pending the proceedings, all the cases were consolidated by an order of the .court on the motion of the proctors for the libellants.

The District Court held the respondents liable, as carriers, for the damage done to the goods; and referred the cases to the clerk to take the necessary proofs, and ascertain the loss which each of the several parties had sustained, and report the amount, which was done accordingly. And, in the coming in of the report, a decree was entered adjudging to each of the fifteen several owners the amount of the loss, they had respectively sustained.

On an appeal by the respondents to the Circuit Court, this decree was affirmed. And the cases are now before us on an appeal to this court from that decree.

With the exception of two of the cases, the sum decreed against the respondents in favor of the several owners of the cargo is below the amount that authorizes an appeal to this court. ' And, it is insisted, on the part of the appellees, that the áppeal should be dismissed for want of jurisdiction as to all parts of the decree, except the' part relating to the two cases mentioned.

On the part of the appellants, it is contended, that the objection to the jurisdiction is not available to the five separate owners joining in the libel, as the aggregate amount decreed to them exceeds two thousand dollars; nor to any of the parties, on the ground that all the cases were consolidated by- the orders of the District -Court on the motion of the proctors for the libellants.

We are of opinion that neither of these grounds are sufficient to maintain the jurisdiction, and that the appeal must be- dismissed as to all the cases except the two in each'of which the amount in the decree exceeds the two thousand dollars;

The joining of several owners of cargo conveyed in the same ship in ’a libel in rent for damages done to the goods in the course of shipment, and the consolidation of libels filed separately by the respective owners for like damage, is allowed by the practice of the court for its convenience, and the saving of time and expense to the parties. It is a practice deserving commendation and encouragement in all cases where it can be adopted without complicating too much the proceedings, and thereby prejudicing the rights of the parties.

In cases where the several claims against the ship are founded upon a common injury and loss, the questions involved depending upon the same general rules of law, and the same evidence, equally ápplicable to all of them, it is fit and proper that the proceedings should be joint, either by' allowing the parties to unite in the libel, or by an order for consolidation, if separate suits have been instituted.

The defence will usually be the same in all the cases; but, if otherwise, the parties will not be prejudiced, as they, may avail themselves in the answers of any defence existing against either of the several owners. For, although the proceeding assumes the form of a joint suit, it is in.reality a mere joinder of distinct causes of action by distinct parties, arising out of a common injury, and which are heard and determined, so far as the merits are concerned,' the same as in the case of separate’libels for each cause of action. The same decree, also, is entered as in the case of separate suits.

We do not perceive, therefore, any ground for a distinction as to the right of appeal from a decree as entered in these- cases from that which exists where the proceedings have been distinct and separate throughout. Clearly, a libellant could not have appeal, unless his claim exceed two thousand dollars. Nor can the respondent, upon the same principle, unless the amount decreed against him in the particular case, exceeds that sum. The principle, in effect, we think, has been already decided in this court.. 6 Pet. 143; 8 Id. 11; 11 How. 522.

There is another preliminary question which it is necessary to notice before proceeding to the merits.

Further evidence has been taken, on the part of the respondents, since the appeal, to this court was entered, which is objected to by the appellants.

The act of 3d March, 1803, (2 Stat. at Large, 244) allows additional evidence to be furnished by either party before this court in cases of appeals in admiralty and prize causes. And by the 27th rule of the court the evidence is to be taken under a commission to be issued from this court, or from the Circuit Court, under the direction of any one of the -judges thereof.

The objection taken to the evidence is, that it does not appear from the record- that any order was obtained from either court for the issuing of the commission. We have, however, before us the commission itself, issued in the usual form by the clerk of the Circuit Court, and in the execution of which both parties have joined. An order, therefore, must have been entered, or, if not, it was waived by the act of the parties in suing out the commission, and joining in its execution. For these reasons we think the further evidence furnished to this court admissible.

This brings us to the merits of the case.

The different libels filed in the several cases are in form and substance the same. And so are the several answers of the respondents.

The libels charge that the ship Martha being at Liverpool on the 6th September, 1847, and bound on a voyage to Charleston, the libellants caused to be shipped on board the same, divers goods, wares, and merchandise, then in good order and condition, of gr> .at value, &c., to be taken care of and safely delivered in like good order, and condition, (the dangers and accidents of the seas and navigation excepted,) they'paying certain freight therefor as per bills of lading. That afterwards, on or about the twenty-first of the same month, the said ship, having on board the said goods, set sail from Liverpool, and on the ninth November following arrived at Charleston, and soon thereafter delivered the same to the said libellants.

That the said goods, wares, and merchandise were not taken care of and safely carried and delivered according to the tenor and effect of the bills of lading; but, on the contrary, although no damage accrued from any dangers or accidents of the seas, or navigation, the said goods were so badly taken care of by the said master, and the cargo of said ship, and particularly a quantity of salt on board thereof was stowed so improperly, that through the neglect, and mismanagement of the master, the said goods were greatly damaged, and great loss thereby sustained.

The answers of the respondents admit the taking on board of the vessel the goods as stated in the libels; and allege, that she was loaded with an assorted cargo in the hold and with sundry sacks of Liverpool salt between decks; that the ship was sound, stanch, and in every way well fitted and equipped for the voy-' age, and capable of carrying safely the cargo taken on board, the dangers of the seas only excepted. That the cargo was well and secürely stowed and packed with proper dunnage, and according to the usage, and custom of the trade, by the master and officers of the ship ; that the hatches leading from the between-decks and the lower hold were well secured and calked, wholly separating the one from the other.. That the ship encountered several violent gales, and very boisterous weather during her voyage, causing her to labor heavily, and straining her badly, the sea at times breaking over her, so that she shipped a great deal of water from leaks, and stress of weather, requiring the constant use of the pumps, which were faithfully attended to, and every effort made, to preserve the ship, and save the cargo from damage.

The respondents further allege that in consequence pf the heavy seas, and the leaking of the vessel, and the change of latitude from a cold to a warm climate, the water shipped became heated, producing steam, and a wet and damp atmosphere in the lower hold, which no care or diligence, on the part of the master and crew could have prevented; that this was the unavoidable result of the dangers of navigation, and proceeded • from the storms, winds and waves; and not from any defect in the ship or want of skill, care or diligence on the part of the master and hands, and caused the damage to the goods complained of. -

They further say, that the salt stowed between decks was safely carried, and delivered dry and in good order at Charleston; without being wet, or any evidence of drainage from the same either upon the sacks, the dunnage, and matting upon which the sacks were stowed, or upon the lower deck, through the seams of which the drainage must have passed to-the goods in .the hold, if at all; and they deny that the - damage to the goods in the hold proceeded from the salt thus stowed between decks.

. The proofs in the casé show, that a mixed cargo, consisting of crates, and boxes of dry goods, and hardware, and a quantity of bars of railroad iron, was stowed in the hold of the vessel, the railroad iron placed at the bottorri. And, that some twelve hundred sacks of salt were stowed between decks fore and aft the main hatch of the lower deck. That she left Liverpool on the 21st September, 1847, and arrived at Charleston on the 9th, of. November following, after a passage of forty-nine days;. that during the voyage she encountered on the first and second of October two very violent gales, the vessel on the wind at the time, causing her to roll heavily and the sea to break continually over her, and to ship great quantities of water, so that it was necessary to keep the pumps going most of the time while the storm continued.

On opening the upper hatches a day or two after the arrival of the vessel for the purpose of discharging the cargo, the salt between decks was found dry and in good condition; and, after the discharge of the same, no unusual wet or dampness appeared upon .the matting or dunnage upon which it was stowed, nor upon the flooring of the deck, nor any evidence of drainage from the sacks of salt in any part of the between-deeks. All the witnesses concur on this point who had the best opportunity of becoming acquainted with the facts ; and whose connection with the discharge of the salt precludes the possibility of mistake, including the port-warden present at the opening of the hatches, the purchasers of the salt, the consignee, the stevedores, the inspector of the customs, and. the mate of the vessefl. Nor is there any evidence in the case to the contrary.

On opening the hatches of the lower deck, leading to the hold of the ship, which was about the 15th November, five or six days after her arrival, great heat issued immediately therefrom, and much dampness and vapor, were found to pervade this part of the vessel; and on breaking the cargo' and commencing the discharge, the greater portion of it was found seriously damaged.

The boxes of dry goods were found wet, or danlp, and stained to a very considerable - extent,- and-the hardware,- and bars of railroad iron, wet and badly rusted; and indeed, the whole cargo throughout the hold more or less damaged.- Drops of water, or vapor, apparently formed from- the heat and dampness of the hold, or by' drainage from above, were found pendant from the seams of the under part of the lower deck, affording very satis^ factory evidence of the immediate cause of damage to the cargo'; but, leaving the question open to controversy as to the source whence these indications proceeded ; some of the witnesses, and. among them three of the port-wardens, testifying that these drops proceeded from the drainage of the salt that had been stowed between decks, and others, from the heat and. dampness of the .hold, aggravated, by. the quantity of sea-water shipped during the storm; and stress of the vessel

We have already stated, that the libellants charge in the several libels the damage to the goods to have. been occasioned exclusively from the improper stowagé of the cargo; and especially of the sacks of salt in the between-decks over the goods in' the hold of the vessel. This is denied in the. answers, and as the recovery must be had, if at all, according to the allegations in the pleadings, it is incumbent on .the. part of the libellants to maintain this ground by the- proofs, in order to charge the respondents.

The real, questions in the case therefore, are, Í. Whether or not the respondents were guilty of neglect, and mismanagement in the stowage of . the. cargo,- and especially of the stowage of the sacks of salt between decks ? And, 2. If they were, whether the damage to the' goods in the hold of the vessel was properly attributable to this cause ?

The goods- having been found t-o be damaged on the arrival of the ship, and which must necessarily have accrued in the course of the voyage, the burden devolved upon the respondents to show, in order to excuse themselves, that it was occasioned by one of the perils of navigation within the exception in the bill of lading. That burden they have assumed; and have shown by nearly an unbroken current of testimony, that the conveyance of the salt between decks, in a mixed cargo, was according to the' established custom and usage of the trade between Liverpool and this country; and that it was well stowed, and packed, and secured with proper and sufficient dunnage.

This ground, therefore, for charging the respondents with the damage to the goods, entirely fails.

They have shown further, that the vessel encountered severe gales and boisterous weather in the course of ,her voyage, during which she labored heavily, the sea frequently breaking over her, and much water shipped by stress of weather, so that it was necessary to keep the pumps in constant operation to preserve the vessel, and protect the cargo. Thus presenting a state of facts, in connection with the condition of the hold, and appearance of the goods on the opening of the hatches, when the vessel arrived at her port of destination, that might well account for all the damage by reason of the perils of the navigation.

It is to be observed also, that even assuming, according to the theory of the libellants, the damage was occasioned by the drainage of the salt coming in contact with sea-water, if the water was shipped from the violence of the storm, or stress of weather, as there was no fault chargeable to the master as to the place of stowage or as to the stowage itself, it is apparent,'that even in that aspect of the case, the damage would still be attributable to the perils of the seas, and not to.the fault of the master- or ship.

In order to avoid these necessary, conclusions the learned counsel for the libellants have sought to maintain upon the proofs, that the seams of the lower deck were not properly calked, but were open, so that the drain from the salt readily dripped through upon the cargo in the hold; and, that conceding it to have been properly stowed between decks, if the seams of the deck had been tight, the damage would not have happened.

Assuming the facts to be true, as contended for in this proposition, the conclusion is admitted. But if .the opening of the seams was occasioned by the straining of the vessel in the storms encountered during the voyage, and in favor of which view there is much evidence in the court below, the respondents would still not be answerable’. The further proof taken on this appeal-would seem to remove all doubt on this point that may have previously existed.

That shows the ship, when, about to sail from Liverpool, was inspected by a competent ship-builder, and repaired; and among other repairs, her lower deck was well calked and payed where any defects were discovered, and put- in good order. The fact, therefore, that the seams were open on the arrival of the vessel, if admitted, must have happened inr the course of the voyage, and may be fairly attributable to the storms she encountered.

But, it is not important to pursue this inquiry. For, the proofs in the case show beyond all reasonable doubt, that the damage could not have been occasioned by any drainage from the sacks of salt between decks. We have already referred to the witnesses on this point, and need not repeat the evidence.

The salt was taken from the stores at Liverpool, and not from lighters, and was dry when put on board, and also, when discharged at Charleston ; and there was not the slightest indication . of unusual wetness or dampness upon the sacks or the matting and dunnage upon which it was stowed, or upon the flooring or any part of the between-decks. On this branch of the case there is no contrariety or discrepancy in the evidence.

Arid all the witnesses concur who speak on' the subject, arid common observation confirms their conclusion, that, if the water came from drainage of the salt, so as to occasion the damage to the goods, some traces of its effects would have been- found upon the sacks, and upon the mats and dunnage and deck of the vessel. .

The only ground urged for a contrary conclusion is an inference drawn from the fact that drops of water of a brackish taste, indicating, as supposed, the presence of salt-in a'degree, beyond that of sea-water, was found along the seams underside the lower deck; and of salt in the concrete found upon .parts of the cargo in the hold. From these circumstances alone, three of the .port-wardens- out of four, expressed the opinion that the damage must have been occasioned by the drainage of the salt above, notwithstanding the decisive facts as to the condition of the salt when put on board, and when discharged, and the abseriCe of any traces of it in the between-decks.. •

Itwould be exceedingly difficult, if not impossible, to reconcile this opinion with the facts of the case, even if there was no other way to account for the circumstances stated, on which the opinion of the port-wardens was founded.'

But when all of them may be accounted for as the natural, if not necessary effect, of the presence of the quantity of sea-water shipped by stress of weather in the course of the voyage, wetting the .cargo as the vessel rolled and labored during the storrns she encountered, producing great heat, and dampness in the hold, we think the opinion altogether unsupported by the evidence.

As to the appearance of salt in the concrete upon parts of the goods, it is quite probable, that the water in the hold thrown' up the sides by the labor of the vessel in the gales may have brought it in contact with the salt between her timbers, and thps leaving traces of it upon the goods.

Most of the vessels that have been built for many years, particularly eastern vessels, are filled with salt between their side timbers and outside and inside plank or ceiling, up to the air-streak, for the purpose of preserving the timbers, and preventing them and the planks from shrinking. When water comes in con-tack with this salt either through the small openings below, or air-streak above, or otherwise, the tendency of it is to settle down in the space it occupies, by becoming more compact; and when the ship makes water in the hold, and rolls heavily by stress of weather, throwing the water up the sides, portions of the salt may escape from the small openings below and pass off along the water-way each side of the keelson to the well-pump. This, however, as is apparent, can happen rarely, if at all except when the ship labors heavily after having shipped much water in consequence of rough and boisterous weather. The effect of the salt, from its inherent tendency to attract and absorb moisture, is to tighten the seams of the ceiling, rather than open them, and thus prevent any escape of the particles of salt through them.

It has been suggested, that, assuming the presence of salt in the hold may be properly accounted'for in the way above stated, this should be considered as evidence of fault in the ship, so as to charge the respondents.

But in the first place, to permit the libellants to recover upon this ground would be a departure from that upon which they have chosen to place their right of action in the pleadings. That is founded exclusively upon their improper stowage of the salt between decks; and the proofs in the case, have been taken with reference to the issue upon that allegation.

In the next place, there is no evidence before us of any defect or fault in the vessel in respeet-to the ceiling or other parts of her connected with the process of thus salting the timbers. On the contrary, the port-wardens, themselves, speak of the seams of the ceiling as being tight and in good order.

The truth is, that all the cases proceeded below, on the part of the libellants throughout, upon the allegation in the libels that the damage was occasioned by drainage from the sacks of salt between deck$, where, as supposed, it was improperly stowed. And the evidence in the record in respect to the condition of the ceilings and other parts of the hold of the vessel, was mere incidental and casual, no point having been made in the proofs on that subiect.

We have already expressed our views upon this the main question involved in the case, and are satisfied, that the damage could not have been occasioned for the cause set forth in the libels; but happened from the perils of the navigation. We will simply add, what was omitted in the proper place, that nearly all the witnesses concur who speak on the subject, that the goods in the hold were most damaged by wet and dampness at the bottom, or lower tier, and diminishing in the advance to the upper. And that in many instances, the boxes of goods, and crates-of hardware were wet, or very damp, and stained at the bottom, and dry and sound on the top and sides, confirming the view that the damage proceeded from below.

Our conclusion is, that the decree of the court below is erroneous, and must be reversed with costs, as to' so much as awards damages to T. Lambert & Brother, and to the South Carolina Railroad Company, and that the proceedings be remitted to the court below with directions to enter a decree in favor of the appellants with costs; and as to the residue of the decree the appeal is dismissed for want of jurisdiction.

Mr. Justice DANIEL

dissented.

This case is one of a class over which, according to my opinion, heretofore repeatedly expressed, the admiralty courts of the United States have no jurisdiction under the Constitution*. It is the case of a contract entered into upon land, that is, in the city of Liverpool, to be fulfilled, partly, nay, chiefly on land; that is, by the delivery of merchandise in the city of Charleston. The remedy for the infraction of this undertaking, if any had in reality existed, would have been an action in a court of common law, upon the bill of lading, the written evidence of the undertaking of the carrier. In the exposition- made by the court, of the evidence, as explaining the origin and character of the injury complained of by the libellants, I entirely concur.

Order.

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 South Carolina, and was argued by counsel. On consideration whereof, it is mow here ordered, adjudged, and decreed by ¿Ms court, that the decree of the said Circuit court in this cause, be, and the same is hereby reversed withh costs, and that this cause, be, and the same is liereby remanded- to the said Circuit Court for further proceedings to be had .therein in conformity to the opinion of this court.