author: Mr. Justice NELSON

text:
    Christopher Ford, Appellant, v. Archibald Douglas, Maxwell W. Bland, and Emeline, his Wife, Appellees.
    By, the laws of Louisiana,' where tnere has been a judicial sale of the succession by a probate judge, a creditor of the estate, who .obtains a judgment', cannot levy an execution upon, the property so transferred, upon the ground that the sale was fraudulent and void. He should first bring an action to set the sale aside.
    The purchaser under the judicial sale having filed a bill and obtained an injunction upon the creditor to stay the execution, it was an irregular mode of raising the ■ question of fraud for the creditor to file an answer setting it forth, and alleging the sale to be void upon that ground. He should have filed a cross bill.. Exceptions' to the answer upon thi.s account were properly sustained by the court below.
    But if the court below should perpetuate the injunction, upon the defendants’ refusal to answer further, the injunction should be free from doubt, in leaving me creditor to pursue other property under his judgment, and also at’liberty to file a -' cross bill. If the injunction does not clearly reserve these rights to the creditor it goes too far, and the judgment of the.court below must be reversed.
    This was an appeal from the Circuit Court of the'United States for the Eastern District of Louisiana, sitting as a court of equity.
    As the merits of the case were not involved in the decision of the court, it will only be necessary.to give such a narrative of the-facts as-will illustrate the points of law upon.which the decision-turned.
    On the 24th of November, 1837, James S. Douglas, of the-State of Louisiana, made his last will and testament, as follows : —
    I, James S. Douglas, of the parish of Concordia, and State of' Louisiana, being feeble in body, and knowing the uncertainty of this life, but of sound and disposing mind and memory, do make and publish this my last will and testament.
    First. I direct that all my just debts be paid as . soon after my decease as my executors shall realize the same from the real and personal estate intrusted to their care and management.
    Secondly. Reposing the utmost confidence in my beloved wife, Emeline Douglas, Thereby constitute and appoint her executrix, and my brother, Stephen Douglas, and my friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being in the State of Mississippi.
    Thirdly. I also appoint ,my brother, Stephen Douglas, and my. friend, Passmore Hoopes, executors of all my estate, real and personal, lying and being ’in the said State of Louisiana.
    In witness whereof, I have hereunto set my hand and seal, this twenty-fourth day of November, one thousand eight hundred and thirty-seven. •
    Signed, James -S. Douglas, [seal.]
    This will, being duly attested, was admitted to probate in Mississippi on the'25th of December, 1837, and letters, testamentary granted. It. is not necessary to. follow the proceedings in Mississippi further.
    In 1838, May 26th, in the State of Louisiana, before Richard Charles Downes, phrish judge in and for the parish' of Madison, ex officio judge of probates, came Stephen Douglas, presented his petition, setting forth the death of his' brother, James S. Douglas, as happening in November, 1837 ; that he made his last will and testament, wherein he appointed the said Stephen Douglas and Passmore Hoopes testamentary executors of his estate in Louisia-'-na ; that’ probate of the will had been made'.in Claiborne county, Mississippi ; therefore, praying letters in pursuance of the testament, and an inventory whereupon, the judge ordered that, upon probate of the testament, an inventory be taken.
    On the 30th of March, 1839, the will was proved in Louisiana, as' it had before been' in Mississippi. Amongst Other claims against the estate, Stephen Douglas, the executor, filed an account, claiming a debt due to him of $ 53,150.42.
    On the 31st of October,_1839, Emeline Douglas, the widow, was appointed guardian of her four children, and Archibald Douglas, a-younger brother of Stephen, was appointed under tutor or guardian. A family meeting was called, and attended the' parish judge, which advised the sale of the plantation and slaves, imple- , ments, cattle, &c., at the head of Lake St. Joseph’s, to satisfy the balance due to Stephen Douglas, the executor.
    The sale was accordingly ordered by the parish judge, and took place on the 23d of March, 1840, when Mrs.- Emeline Douglas and Archibald Douglas became the purchasers.
    On the 1st of April, 1840, Emeline Douglas obtained a judgment iri her favor against the estate for $76,634.74, and, on the 22d of April, the parish judge ordered another sale- to take place'for the purpose of paying this debt.

      On the 8th of June, 1840, the parish judge made sale of a plantation called Buck Ridge, slaves, cattle, corn, &c., all of which belonged, jointly, to James S. Douglas, the deceased, and Stephen Douglas, the executor. This property was purchased by Emeline Douglas and Archibald Douglas for $ 83,000.
    In December, 1840, and January, 1842, Ford, a citizen of Virginia, obtained the three following judgments against the executor, in the Circuit Court of the United States, viz. : —the one judgment obtained on the 23d of December,-1840, for $ 9,180, with interest, at the rate of eight per cent per- year, from the 15th of January, 1838, on one half thereof, and from-15th of'January, 1839, on the other half thereof, besides costs.
    Another judgment, of the 26th of December, 1840, for $4,590, with interest at same rate from 15th of January, 1840, besides costs.
    The third, of January 3d, 1842, for $4,590, with interest at same rate until paid, besides costs, — making together $18,360, besides interest and costs.
    Executions were issued upon these judgments and levied upon the property which had been purchased by Emeline Douglas and Archibald Douglas.
    On the 21st of December, 1842, Archibald Douglas, Maxwell W. Bland, and Emeline, his wife (late Emeline Douglas), filed their. bill in the Circuit Court of the United States for the Eastern District of Louisiana, against Christopher Ford and the marshal, praying for an injunction to stay further proceedings udder the judgments, and that they might be quieted in their possession of the property which they had purchased.
    ■ On the 30th of December, 1842, an injunction was issued accordingly.
    On the 21st of April, 1843, Ford filed his answer, in which he alleged that the proceedings under the will, as well in Mississippi as in Louisiana, were the result of fraud, collusion, and combination, in consequence of which they were null and vóid, and.passed no title to the complainants. The answer then proceeded to set forth, with great particularity, the acts of which he complained, and concluded as follows : —
    “ This respondent, having answered the allegations in said petition set, forth, prays this honorable court that the said petition may be decreed to be dismissed, and the injunction had and obtained in this case may be dissolved, and a judgment rendered against the said petitioners and the sureties on their injunction-bond for damages, according to law. That this honorable court make such' other judgment, orders, and decrees, as may be found legal and proper, to declare void and null the sales relied on in said petition ; to finally dissolve the said injunction with legal_ damages in favor of this respondent ; to dismiss said petition and-relieve this respondent from the opposition of said petitioners ; to order the .marshal to proceed to the sale of said property under the said three writ's of fieri facias, for the satisfaction' of the said judgments of this respondent; and th¿t this respondent have judgment for his costs.
    And this respondent will ever pray, &c.
    Signed, Christopher Ford.”
    . On the 22d of April, 1843, the following exception to the answer was filed : —
    The said plaintiffs except to the answer-filed by the said defendants in this behalf, because the matters and things set forth in the said answer cannot, by iaw, be inquired into in the present suit or proceedings instituted by the said plaintiffs. And the said plaintiffs, not admitting any of the facts or matters set forth and alleged in the said answer of the said defendants, but, on thé contrary, denying and protesting against the truth of all and every part thereof, and alleging that the truth thereof cannot be inquired into in this action, pray that they may have the benefit of their injunction, and that the same may be made perpetual, &c.
    Signed, ■ Jno. R. Grvmes, for Plaintiffs.

    And on the same day and year aforesaid, to wit, on the 22d day of April, 1843, the following agreement was filed : —■
    Douglas et al. v. C. Ford et al.
    Circuit Coúrt of the United States, Eastern District of Louisiana : — •
    It is agreed that this case may be set down for argument on the matters of law arising on the petition and answer, as on an exception to the answer ; and that if the judgment of the court, on the matters of law, should be for the -defendant, the'plaintiffs may join issue on the facts, sa»d the testimony taken in the usual manner. The plaintiffs to be at liberty, at any time before hearing, to file special exceptions in writing.
    Signed, Jno. R. Gry s, for Plaintiffs.

    On the 22d of April, 1846,. the cause came on for trial upon the plaintiffs’ exceptions to. the answer of the defendant, - and on the 24th the following order of court was entered of record : — .

      Monday, .April 24th, 1843. .
    The court met pursuant to adjournment. Present, the Honorable John McKinley, Presiding Judge ; the Honorable. Theodore H. McCaleb, District Judge.
    Christopher Douglass et al. v. Christopher Ford et al.
    The consideration of exception filed in this case to the answer of the défendant was this day resumed before the ctíurt, the complainants not appearing either in person or by his solicitor, and F. Houston, Esq., for the defendant. Whereupon, the arguments of counsel' being closed, it is ordered, adjudged, and decreed, by the court, that the exception of the complainants .to defendants’ answer be sustained,- and that the defendant answer over.
    'Archibald Douglas et al. v. Christopher Ford et al.
    The defendant, Christopher Ford, by his counsel, declines to answer further in this case the bill of the plaintiffs, relying' and insisting on the sufficiency of the ample and conclusive answer filed, by him in this cause, and the utterly null and void character of the title set up by said plaintiffs, apparent on their said bill, and the record of the mortuary proceedings of the succession of the said James S. Douglas, deceased.’ The defendant having declined to answer further in this case, and to submit it to the court to render such final decree in the case as may appear to them to be proper, it is therefore ordered, adjudged, and decreed, that the injunction heretofore awarded in this case be and the same is made "perpetual ; and it is further ordered, adjudged, and decreed, that the plaintiffs recover the costs of suit, without prejudice to the right of the defendant to' any action he may think proper.
    From this decree, Ford appealed to this court.
    The Gause was argued by Mr Bibb, for the appellant, and Mr. Meredith, for the appellees.

      Mr. Bibb

    examined the facts very minutely, as they' were presented in the record, with a view of sustaining the charge of fraud, and then proceeded.
    The appellant, assigns the errors following, as appellant on the record : —
    1. The judge erred in sustaining the exception to the answer1, and also in giving relief upon .the bill; thereby, id effect,.decreeing that the plaintiffs could, as complainants in equity, ask the court to aid them in consummating their unfair practice and frauds, ¿ppearing on the face of. their bill and exhibit referred to as part of-their bill.

      2. The judge erred in adjudging that 'the matters of fraud and collusion, alleged in the answer of the defendant, now. the appellant, were not defences competent, fit and proper, legal and equitable, to be inquired into in the suit prosecuted by the plaintiffs, now appellees.
    3. The court erred in sustaining the bill, and in giving any relief to the complainants upon.the bill.’ •
    4. The court erred in the nature and extent of the relief given to the said complainants.
    5. Upon the face of the bill and exhibit referred to, as the evidence of the title, claimed by the plaintiffs, it appears that the plaintiffs had no title, had not capacity to become purchasers, that they had paid no consideration,. and that the proceedings in -the' parish court were bad, done, and procured by fraud and collusion, -and combination between the said Emeline and Archibald Douglas-Stephen Douglas, the executor of the will and testament of James S. D.ouglas, and others, with intent and for the purpose of delaying, hindering, and defrauding the creditors of said téstator, James. S. Douglas, apd Christopher Ford in particular ; and therefore the bill should have been dismissed.
    6. Upon the bill and transcript of the proceedings in the Parish Court of Madison, Louisiana, exhibited by the plaintiffs in the court below, as the evidence of their title, it appears that the title pretended by the said plaintiffs is invalid, prohibited by the policy of the law, denounced and interdicted by the principles of equity ; and therefore the bill should have been dismissed.

      7- The bill does not contain any equity ; made no case proper for the aid of a court of equity.
    Having set forth the facts which are relied on in the answer, most of which are proved by recorded proceedings in' the two .courts respectively, — the court of probate, in Mississippi, and the parish court of Louisiana, — it remains to inquire whether, these matters of fact were admissible defences for the defendant against the bill and relief prayed.
    . The property levied upon by the marshal was confessedly of the estate of the testator-, James S. Douglas, at the time of his death, and liable to the' satisfaction of the executions' against Stephen Douglas, executor of James S. Douglas, unless the complainants, Emeline.Douglas, one of the testamentary executors, now Emeline Bland, and Archibald Douglas, they being the tutrix or guardian and under-guardian of the infants, have, by color of the sales and purchases had and contrived- by fraud and collusion, and without ever making payment, under their collusive fraudulent doings, changed the title, and are above the powers of a court of equity in relation to the frauds.
    At the threshold these questions áre presented : — Does a report that a person was the best bidder- for lands and slaves at public auction, advertised for sale for cash,' change the title and vest it in the bidder, without any report of payment of the price, without, any receipt, for the purchase or evidence of payment, without payment made, and without-ability in the bidder to make payment of the price ? Does the report of a sale of lands and slaves, as having been made by a parish judge in the State of Louisiana, to. a bidder at the price of $ 83,000, shield and defend the bidder from all.inquiries as to his fraud, collusion,, art, and part in procuring a fraudulent judgment and order of sale; and also as to the facts ef non-payment of'the purchase money, his inability to pay, and’that the bidder had never been let into possession ?
    .The complainants, Archibald and Emeline, to maintain their bill, and their exeception to the -answer of the defendant, Christopher. Ford, are under "the necessity to assert- the affirmative of these propositions.

      The record of the proceedings in thé parish court of Louisiana, offered by complainants in' equity as evidence of their title to the property levied upon by the marshal to satisfy the executions, contains no report of the payment of the prices which they bid; the complainants offer no proof of payment; their bill does not allege payment : the sum was above their circumstances and ability to -pay in cash ; the record abounds with evidence of fraud and collusion ; the answer charges, that the design, end, and aim of the whole proceeding to judgment and sale was by a sham sale and colorable purchase, to protect the property from the creditors of the testator, whilst Stephen Douglas yet is the possessor of the estate as before the pretended sale. The transcript of the proceedings in the probate court of .Claiborne county, Mississippi, corroborates and multiplies the acts of fraud and collusion ; and the averments in the answer of Christopher Ford, if true, leave no room to doubt the fraud.
    Shall these pass without inquiry, without examination, without trial, upon a bill brought by two of the confederates in the fraud and collusion, asking a court of equity to call its moral powers into activity to protect them and their confederate in the fruits of the fraud ?
    By the exception to the answer, and the decision of- the judge below, the frauds are said not to be proper subjects of inquiry “ in the present suit or proceedings instituted by the said plaintiffs.”
    The exception, as taken and sustained, implies that the matters and things set forth in the answer may be inquired into in- some other suit, in some other proceeding.
    Does the attitude of Mrs. Douglas and Archibald Douglas, as complainants in equity, ensconce them from reprobation for havihg art and part in the fraudulent and covinous proceedings which they make the groundwork and. gravamen of their accusation and prayer for relief? The maxim jn equity is-, a complainant must come into the court with clean hands. . .
    I propose to comprise my argument, as to the principles of law and equity which should rule the decision of this appeal, under these general heads : —
    1. .The effect of fraud in contaminating and avoiding all proceedings and acts, as well semi-judicial as'judicial, had and done, contrived and procured, by fraud.
    . 2. That the jurisdiction of the courts of the United States, to carry into execution, and full effect their judgments and decrees, is plenary ; and that the jurisdiction of the court of the United States, to execute the judgments in favor of said. Ford, the appellant, is not to be remitted and referred to the tribunals of the State of Louisiana, to give him execution and satisfaction of these judgments. -
    3; That, upon the face of the transcript of the proceedings in the parish court, as exhibited by the plaintiffs, now appellees, they were incapable, and prohibited by the policy -of the law, and the. established principles of equity, to become purchasers at the sales •therein mentioned, and by their own showing have not the title to .the property mentioned in their billl.
    I. As to the effect of fraud.
    Lord Chief Justice De Grey, in delivering the answer of the' judges to a question put to them in the Duchess of Kingston’s case, expressed the opinion Gf the judges thus : — “ Fraud is an extrinsic, collateral act, violating the most solemn' proceedings of courts of justice ; as Lord Coke says, avoiding all-judicial; acts, ecclesiastical and temporal.” The Duchess of Kingston’s case, 20 Harg. -State Trials, 602 (Cóbbett’s ed. 594).
    A decree of exchequer, that a will was' duly proved which was obtained by fraud, relieved against in chancery, by Lord Hard-wicke. Barnsley v. Powel, 1 Ves. sen. 120 ; and ibid. 286, 287.
    Where a fine and non-claim- is levied by fraud, a court of 'equity will relieve against the fine ; per Lord Hardwicke. Cartwright v. Pultny, 2 Atk. 381. '
    An original bill to set aside a decree obtained by gross fraud, sustained by Lord Chancellor Macclesfield. Loyd v. Mansell, 2 P. Williams, 74, 75.
    At law, defendant may plead that the judgment against his testator was by fraud and covin. If a decree was by fraud and covin, the party may be relieved against it; not by rehearing or appeal, but by original bill. By Lord Hardwicke, chancellor. Bradish v. Gee, Ambler, 229.
    “ Equity has so great an abhorrence of fraud, that it will set aside its own decrees, if founded thereon.” 13 Viner, Frauds (Aa.), pi. 9, 10, p. 543. .
    “ Equity, will never countenance demands of'an unfair nature; in this case it was to have an allowance for attending at auctions to enhance the price of goods ; nor will equity suffer them to he set off against fair and just demands ; and a cross-bill for that purpose was dismissed with costs.” 13 Viner, p. 544, pi. 13.
    In chancery, between Richard Fermor, plaintiff,, and Thomas Smith, defendant, to set aside a fine levied by said Smith, by fraud and covin, to bar the pláintiff of his inheritance. The proclamations and five years had past; Smith, the tenant for years, all the time continuing in possession, and paying rent until his term expired, and then he claimed the inheritance, and to bar the plaintiff by force of the said fine and proclamations and five years. On the hearing of the case, the Lord Keeper of the Great Seal, because it was a case of great importance, and considering that fines witji proclamations were general , assurances of the realm, referred the case to all the justices of England and the barons of the exchequer,- all of whom met (except two)-and consulted, and resolved that the plaintiff was not barred, because of the fraud and covin. And it was said that the common law “ doth so abhor fraud and covin, that all acts, as well judicial as others, and which of themselves are just and •lawful, yet, being mixed with fraud and deceit, are in judgment of law wrongful and unlawful.” And various'examples and precedents of decisions are cited. Fermor’s casé, 3 Coke, 77, 78.
    Chancellor Kept, in the case of Reigal v. Wood, 1 John. Ch. Rep. 406, said,— “ It is a well settled principle in this court, that relief is to be obtained, not only against writings, deeds, and the most, solemn assurances, but against judgments and decrees, if obtained by fraud and imposition.”
    In the case of Kennedy v. Daley, 1 Schoale & Lefroy, 355, Chancellor Redesdale relieved against a decree obtained by fraud and imposition, and declared it should have no effect. And that a finé levied and non-claim, by a trustee to a person having notice of the trust, shall not bar the cestui que trust.

    And.in the case of Giffard v. Hort,- ibid, 386, he held a decree, obtained without making parties of those persons who were known to have rights in the estate-, to be fraudulent and void as to those not made parties, and a purchaser under the decree, with notice of the defect, not to. be protected by it. The fraudulent decree was in the exchequer. Lord Redesdale laments numerous proceedings in the exchequer, at a time when that court was oppressed with business, and could not take time for-full investigation and right decision, whereby advantage was taken by such proceedings to defraud persons of property to which they were entitled. “ It was one of the crying grievances of time. A systematic use has been made of the decrees of a court for the purpose of effecting fraud ; and it has been as much a swindling contrivance to deprive a family of. its estate, as any of those contrivances which swindlers practise upon unwary young men. I shall, fherefore, think myself bound to struggle to the utmost of my power to relieve against such oppressive combinations.” Giffard v. Hort, 1 Scho. & Lef. 396.
    Certain it is that distant creditors, legatees, and heirs have had as ample cause to lament that a systematic use has been made of the parish courts of Louisiana for effecting fraud and swindling, as Lord Redesdale had for lamenting such like uses made of the court of exchequer in Ireland.
    The cases which I have cited show the active relief -given upon bills to annul those fraudulent judicial proceedings. The courts of equity, true and consistent to the doctrine that “all acts, as well judicial as others, mixed with fraud and deceit, are in judgment of law wrongful and unlawful,” have ever refused to grant any relief to a party who comes into a court of equity .as plaintiff, asking to have advantage of fraudulent or unfair proceedings.
    The maxim in equity is, — “He that hath committed iniquity shall not have equity.” Francis’* Maxims, II. (old ed. p., 5, new ed. p. 7).

      Under that maxim, various examples are given of plaintiffs whose suits were dismissed because' the subjects of the bill were founded in fraud or unfair dealing.
    The plaintiff upon a loan of £ 90 got a bond for ¿£800, and had judgment. Thereupon he brought a bill id subject to the satisfaction of the debt certain lands of the defendant in right of his wife, estated to trustees for her benefit. “ But the security being gotten from the defendant when he was drunk, the lord keeper would not give the plaintiff any relief in equity, not so much as for ‘the principal he had really lent, and so the bill was dismissed.” Rich v. Sydenham, 1'Cases in Ch. 202;
    Upon a bill to have the benefit of articles of marriage, which had been reduced to writing but not sealed, containing an extreme portion for the married daughter, more than would be left to her father and mother, and two other daughters not provided for, the lord chancellor would not decree the agreement, but left the plaintiff to recover at law if he could. Anonymous, 2 Cases in Chan. 17.
    To sustain the exception to the answer, or to give relief upon the bill without an answer, upon the idea that ■ the fraud was not a fit subject of inquiry upon a bill by the actors, contrivers, and partid-: pators in the fraud and covin, was in contradiction to the established principles of equity.
    The complainants having brought their case into the court, of equity for relief, it was open to every defence, to every objection which could have been made against it by a bill, on behalf of those prejudiced by the proceedings in the parish court, to have relief against the fraud and covin. If the Circuit Court of the United States had jurisdiction to hear and determine the complaint as a matter cognizable in equity, it had jurisdiction to hear and determine the defence to the bill .alleging' the acts of fraud, collusion, and covin, charged in the answer, which, if true, avoided the proceedings relied upon as the foundation of the bill.
    The cause which had moved the complainants to come into equity for relief did not curtail the powers and jurisdiction of the court to hear and determine any and every equitable defence to the bill. . Fraud, covin, and collusion in the plaintiffs, had and used in the proceedings orr which they relied, was an equitable defence, a bar to the relief prayed by the bill.
    That the judgment creditor, C.' Ford, the defendant, had caused 'the marshal to levy the executions upon the property alluded to in the proceedings in the parish court, as exhibited by the complainants, neither purged-the proceedings of the fraud, covin, and collusion, nor deprived the Circuit Court of the United States of its powers, duties, and dignity as a court of equity.
    The powers and jurisdiction of die Circuit Court of the United States Were prescribed and conferred by the constitution and laws of the United States, not by the will and convenience of the com-' plainants in that bill.
    Are the proceedings of the parish court of Madison, in the State of Louisiana, final and -conclusive against all persons, parties, and those not parties ? Are the frauds by which those judgments in favor of the executor, Stephen Douglas, and in favor of Mrs. Em-eline Douglas, and the fraudulent, collusive, and covinous proceedings under those judgments, final, conclusive, sacred ; beyond the power of all courts to overhaul them for fraud, deceit, and covin ? No such sanctity can be ascribed to them.
    Being hable to be impeached and. avoided for fraud and cóvin, the complainants, who have carried a transcript of those proceedings into the Circuit Court of the United States, and 'therein made those proceedings the substratum of their bill in equity and prayer for relief, have thereby subjected those proceedings to the examination in that court, sitting as a court of equity.
    But' such jurisdiction of the Circuit Court did not depend upon, the volition of the said Archibald and Emeline. .
    II. The jurisdiction of-the courts of.the United States, to carry into execution and full effect their judgments and decrees, is plenary; not to be remitted and referred to the tribunals of the States. •
    The jurisdiction of the Circuit Courts of the United States in each particular case is.not exhausted by the rendition of the judgment or decree, but continues until that judgment or decree shall be. satisfied. The beneficial exercise of the jurisdiction of the court to compel satisfaction is not less important than the exercise of the jurisdiction to pronounce .the judgment or decree. . The jurisdiction to enforce satisfaction by execution is a necessary incident to the jurisdiction to give the judgment or decree ; it is expressly given in1 the acts of Congress establishing the courts and defining their juris-. diction.. The execution and satisfaction of the judgment is the very “ life of the' law.”
    But I need not labor this point; the doctrine is well settled by the decisions-of the,-Supreme Court of the United States. Wayman v. Southard, 10 Wheat. 23; Bank of the United States n. Hal-stead, 10 Wheat. 64.
    The learned counsellor, who argued this case for the appellees, cited many decisions of the State court of Louisiana, and passages of the' civil code of Louisiana, to show, that an execution, issuing from a State court of Louisiana, could not have beren levied upon this property until, by some proceeding, the orders, judgments, and sales by the parish judge of Madison had been.reversed, set aside, ■ .and annulled. .The drift of that argument, and the exception taken to the answer of Ford, and the opinion of the judge in sustaining the exception, all seéni intended to drive C. Ford-into the State courts of Louisiana, tó seek satisfaction of his judgments rendered in the Circuit Court of the United: States, to confine the process of execution to the mode of proceeding under the law of that State.
    To all those -arguments and citations, I reply, that the State óf' Louisiana has rightful authority to regulate her own courts and modes of executing their, judgments, but ha's no rightful authority to regulate the modes of proceeding, and processes of execution of tire courts of the United States.
    The jurisdiction of the courts of the United States, and the ¡process of execution of their -judgments and decrees, depend upon the constitution of the United States and the laws made by Congress in pursuance of the constitution, not upon. the laws of the States. The laws made by Congress in pursuance Of the constitution “ shall be the supreme law of the land, any thing in the constitution or laws of-any State to the contrary hptwithstanding. ” So the constitution of-the United States (art. 6, § 2) declares.
    Any. law pf the State contrary to the law of the United States, or impliedly or. expressly prohibiting the execution óf the process of the courts of the United States within the State, in a manner different from that prescribed by the law of the State to her. own courts, would be null and void.
    The differences between the process of execution of the judgments of the courts of the United States, as regulated by the- laws of the United States, and the process óf execution of the judgments of the State courts as regulated by Stale laws, have been the subjects of solemn argument, matured consideration, and decision in the Supreme Court of thé United States.
    In the cases-of Wayman v. Southard, 10 Wheat. 1 ; The Bank of the United - Stales Halstead, 10-Wheat. 54; Suydam v. Brodnax, 14 Peters, 67, the laws of the United States -regulating the process and modes of executing the judgments of the.courts of the .United States-were considered, expounded, and adjudged.
    In the two former, the certificates of the decisions and mandates expressly declare,-— u That the statutes of Kentucky in relation to executions, which are certified to this court, are not applicable to executions which issue on judgments rendered by the courts of the United States ” (10 Wheat. 50) ; “ cannot operate upon, bind the nude in which the venditioni exponas should be enforced by the marshal, and forbid a sale of the .land levied upon, unless it com; manded three fourths of its value.” 10 Whea-. 65.'
    The decision in Suydam v; Broadnax declared, that the law - of the State of Alabama, which commanded that claims of creditors upon an' estate declared to be insolvent should be prosecuted before the commissioners-appointed to manage the estate, has no binding force whatever .on'the Circuit Courts of the United States ; and the right of said Circuit Courts to take cognizance of. claims against such an estate was undoubted, the statute of Alabama, to the contrary notwithstanding. 14 Peters, 67.

      The judicial -department of the government of the United States, iff relation to the extent of its iurisdiction,- the distribution of its powers between the Supreme -Court and the inferior courts, the supervising power over the, decisions of the State courts in specified cases, the tenur». of office of the judges, the provision for the adequate support of the ndges, their responsibility, and .the mode of. appointment, was constructed with great wisdom, caution, and deliberation. Profiting by history and examples of the past, the sages who' framed the judiciary department looked to the future with anxious desire to preserve the Union, to maintain peace at home and abroad, so far ,as an impartial and enlightened administration óf justice can conduce to those ends. Considerations of the highest importance demand that the supremacy of the laws of the Union, and the judicial cognizance assigned to the courts of the United States, shall be maintained in their full extent and proper vigor.
    The jurisdiction in controversies between citizens of different States, and in questions of conflict of State laws with the constitution and laws • of the United States, forms, an important provision for establishing justice and preserving domestic tranquility. Past experience of “ fraudulent laws, which had been passed in too many ■of the States ” before ■ the federal • constitution was proposed, taught the framers of that compact to apprehend that the spirit which had produced those would, in future, produce like instances, or assume new shapes with like evil- tendencies ; therefore the constitution established particular guards.-against such evils, one of which is the jurisdiction of the federal courts in controversies between citizens of different States. Multiplied instances, which have occurred since, the federal constitution was adopted, attested by the records of this court, prove but too well that the apprehensions of the framers of the constitution were not idle, nor their foresight and prudent provisions for arresting the evils unprofitable.
    III. Upon the bill arid the transcript of the proceeding in. the parish court, exhibited thereby tp make title to the property claimed by the complainants, now appellees, by their own showing they have' not the title to the property.
    They, said Emeline and Archibald, were iff a fiduciary capacity, the one as tutrix (or guardian), the other sub-tutor (or under-guardian) , and therefore not capable in law to become purchasers at those sales.
    - The purchase money was not paid; no possession was delivered ; the whole' contrivances of debts claimed against the estate of her testator, the judgments in favor of Stephen' Douglas and of said Emeline, respectively, were false, fraudulent, and covinous; the sales and pretended purchases were shams, simulations, deceitful, illegal, and passed no-title to the said Emeline and Archibald.
    Upon this point I cite the case decided .at the last'term of this court. Michoud et al. v. Girodet al., 4 Howard, 553-555, &c.

      . Thai; opinion is drawn with such perspicuity, research, and demonstration, that nothing is left to be supplied by me.
    It is of itself an example of overhauling and relieving against the iniquities committed by the court of probate and parish court of Louisiana, in proceedings similar to those of the parish court .of Madison relied oh by the complainant.
    The. incapacity of the tutor, or guardian, to purchase at such a sale is one of the points adjudged in that case.
    I have labored this case because of the value in-controversy, but more on account of the consequences in all time to come, for good or for evil, which hang upon.the decision of this appeal in this way or in that. Many things I have said which might perhaps have been well omitted. Some things I have intentionally omitted’which might have been said, which will be supplied by the intelligence of the court. But, ex Metis, et ex non Metis, I pray the decree of this court for' the appellant; that the injunction be dissolved and the bill- dismissed, so that the appellant may have execution of his judgments.

      Mr. 'MereMth, for- the appellees.
    Upon the facts disclosed by the record, the counsel for the ap-pellees, in the oral argument which he had the honor of addressing to the court, when the case was called in its order upon the calendar at the present term, submitted two propositions which he respectfully insisted were fully sustained by an uniform series of decisions of . the Supreme Court of Louisiana, establishing them as fixed rules of .property in that -State. They were the following : —
    1. That the appellees, at the time the' executions were levied, were possessed- of the property seized, under and by virtue of judicial sales, translative of title, as by public and authentic act.
    2. That the appellees being so possessed the appellant had no .right,, on a suggestion of fraud, to treat the proceedings of the probate court as null and yoid, and cause his executions to be levied on the property- ; but that- the -fraud alleged by him could only be inquired into -in an actiornto set aside the sales,’ tinder which the ap-pellees claimed the possession and' title ; .in which, if he should succeed, the property would become liable to the operation of his judgments. Until when, the appellees had a right to be protected by injunction in the possession and enjoyment of the property. ■
    I. Upon the first proposition, as to the legal effect of the adjudications of the probate sales upon the title and possession'the epun-sel- for the appellees referred to the following decisions : — Zanico ¶. Habine, 5 Martin’s Rep. 372 ; 1 Condensed Rep. 384 ; Bush-néll v. Brown, 8 Mart. Rep. (New Series), 157 ; 4 Cond. Rep. .466 Marigny v. Nivet, 2 Louisiana Rep. 498; De Ende v. Moore, 2 Mart. Rep. (N. S.) 336 ; 2 Cond. Rep. 675 ; La Fon’s Executors v. Phillips, 2 Martin, (N. 8.) 225 ; 2 Cond. Rep. 644. These cases a]l concur to show that'in judicial sales the praees verbal is sufficient evidence of title; and that neither deed from thé officer making the sale, nor act under the. signatures of the parties; is necessary/to perfect it. ■ Such indeed áre the express provisions of thé Civil Code, See articles 2,586,-2,594, 2,6Q1. ■
    Further, the adjudication, being by public and authentic act, was complete evidence of delivery and possession, where there was no adverse" possession at the time of the sale. Such a possession is no where alleged or suggested in this case, and could not indeed have'existed, because all the parties in interest were béfdre the court when the decrees were made by the court of probates, as appears by the transcript of the record exhibited with the- bill. The bill itself avers that the appellees were in possession long before thé issuing bf the executions ; -and the only denial of the answer is as to the lawfulness of the. possession. • Upon this point, the case of Fortin v. Blount; 1 Martin,. (N. S.) 179, 2 Cond. Rep! 429, was referred, to.
    The first proposition then appeared to be cle.arly sustained under-the Louisiana jurisprudence ; that is to say, that the appellees were in possession of the property upon which the appellant’s executions were levied by adjudications which passed the title to them.
    II. The second, proposition, it was contended, was equally cléar upon áuthonties. It is held as settled, in the courts of Louisiana, that no man can- take the- law into his owh.hands, and, ex mero.moiu, undertake to render himself justice ; that-, however good his title may be, he 'cannot take possession of property without form of law ; and that the courts will' not, in a possessory action, investigate his title, but will restore the possession, and leave him to his peti-tory action. It is equally well settled, that what one cannot do by himself, he shall not bo permitted to do through the instrumentality of a mere ministerial officer., — such as a sheriff or marshal, — acting under his directions and. orders, and under pretence of judicial authority, disturbing, third parties in-the possession and enjóyment of their property, leaving them to.the uncertain and inadequate remedy of action for the trespass, against the officers; or to follow the execution creditor, perhaps into a distant State, in quest bf satisfaction. If such creditor believes that the title of the party in possession is founded in fraud,- and that the property is liable to his execution, the law imposes upon him the duty of bringing his re-vocatory action to annul the title and subject it to the satisfaction of his judgment. This-he is bound to do first; he cannot forestall or provoke the inquiry by a seizure 'under execution ; and should he attempt to do so, -the courts will enjoin the proceeding. This principle has its foundation in the Roman and Spanish laws, and. has been the established jurisprudence in Louisiana from the •earliest period, and is free from all_doubt and conflicting decisions. It imposes no hardship on the plaintiff in the execution, because a revocatory action for cause of fraud is one of the plainest and most simple remedies ini practice in the -.courts of that State ; in which, if the plaintiff succeeds, tire sale is avoided, and the property restored and. subjected to his claim. In such an action the parties are entitled to a jury. If the judgment be in a court of the United States, and the creditor prefer that jurisdiction, it is submitted that a bill on the equity side would afford every relief that his case could require.
    In support of this proposition ánd these views, the counsel for the .appellees referred to the following decisions : — St. Avid ». Wiemprender’s Syndics, 9 Martin, 648 ; 2 Cond. Rep. 39 ; Bar-barin «. Saucier, 5 Martin, (N. S.) 361 ; 3 Cond. Rep. 577 ; Henry «. Hyde, 5 Martin, (N, S.) 633 ; 3 Cond. Rep. 689 ; Peet «..Morgan, 6 Martin, (N. S.) 137 ; 3 Cond. Rep. 780; Yocum «. Bullitt, 6 -Martin, (N. S.) 324; 3 Cond. Rep. 858; Trahan®. McMannus, 2 Louis. R. 214 ; Childress «. Allen, 3 ibid. 479 ; Brunet «. Duvergis, 5 ibid. 126 ; Samory «. Herbrard, 17 ibid. 558 ; Laville«. Hebrard, 1 Robinson’s Rep. 436 ; Fisher ».' Moore, 12.-ibid. 98. In Henry «.. Hyde, and Yocum «. Bullitt, above referred to, the question arose, in a case exactly like the one under consideration, where property had been seized in execution, and an injunction had been granted to the party claiming it by purchase, from or under the- defendant in the execution, as the former owner. Indeed, injunction is the remedy expressly given by. the law of Louisiana. Code of Practice, art. 298, no. 7. •
    ' Upon these two propositions, then, and the authorities cited, the counsel for the appellees contended that the decree of the Circuit Court perpetuating the injunction should' be affirmed. The only effect of such a decree being to stay the proceedings on the appellant’s 'executions, issued under his judgments at law, and put him to his direct action to annul the sales -and subject the property to their payment-
    It .was, moreover, contended that these, being the established-principles of State jurisprudence, must be considered as rules of property in Louisiana; and therefore, under the repeated decisions of this court, as obligatory upon the courts of -the United States as upon the State tribunals. And for this were cited Wheat. 542 ; 12 ibid. 162 ; 6 ibid. 127 ; 7.ibid. 550 ; 8 ibid. 535, 542 ; 10 ibid. 159 ; 11 ibid. 367 ; 5Cranch, 32.; 9 ibid. 98 ; 1 Peters, 360 ; 2 Howard, 619.
    These were the positions and authorities on which the counsel, for the appellees relied, in the argument before referred to. A printed brief, however, having since been filed, with the permission of the court, by the counsel .for the appellant, he prays leave tto subjoin a few additional remarks.
    . The greater part, of this brief, consists of a very labored analysis of the record of the probate court, exhibited with the bill, with intept to show “ collusion, combination, and fraud,” on die part-of the executor of James S. Douglas and the appellees, as the pm> chasers of the property in controversy. ' Whether the learned .Counsel has failed, or succeeded in this attempt is not material now to consider, because such an investigation assumes the' very question now before the court; that is to say, whether, in answer to a bill praying, an injunction to restrain him from levying executions upon judgments recovered against a third person, on property the title and possession of which are alleged to be in the appellees, by purchase at a judicial sale, under decrees of a court of unquestioned jurisdiction, it is competent to the appellant to aver that such decrees were procured by “collusion, combination, and fraud.” Should this court sustain such an answer, in. such,a- proceeding, if is presumed .that the case would, be remanded to the Circuit Court, Where the appellees will have the right, under the agreement before referred to, to join issue on those allegations in the answer, and, urn der a commission, take such testimony as they may deem expedient or necessary.
    The learned counsel has comprised his arguinent .under three general heads. ’
    1. The first is as .to the “ effect- of fraud in contaminating and avoiding all proceedings and acts* as well semi-judicial as judicial, had and done, contrived and procured,- by fraud. ” This general, principle is too indisputable to have needed the support of the ■ numerous cases cited in the briéf; If, however,' the-learned counsel, in -stating his proposition, intended to apply the phrase “ semi-judicial” to the proceedings in-the probate court for the parish of Madison, it is only necessary to refer to article 924 of the Code of Practice, to show that the courts-of probate in that State have exclusive original jurisdiction of all matters touching the administration of the real and personal-estates of deceased persons to a larger extent, perhaps, than the orphans’ courts of any other State of the Unión: Their -proceedings are, in the. fullest sense, judicial, and unless' reversed on appeal their decisions’ are conclusive and cannot , be impeached collaterally, except, as all judicial acts may be, upon the ground of fraud. But though fraud vitiates all judicial proceedings, it is surely not necessary to remind the court that'he who seeks to impeach a judgment of decree collaterally must show that he was neither a party nor a privy to it. If he stand in either of these-relations he cannot he permitted to allege fraud in the judgment itself, or in the mode of proceeding, by which it was procured. He can only do it- directly by motion for a new trial, or appeal,.or writ of error. Prudhám a. Phillips, Ambler, 763 ; .Bush a. Sheldon, 1 .Day,.170, which was a judgment of.an orphans’ court; Peck a. Woodbridge, 3 Day, 3D, are among the numerous cases upon this point, collected in 3 Cowén’s Phillips on Evidence, 854, note 610. It is admitted that there is no such limitation upon the operation of the general principle, where the party alleging the fraud is a stranger to the judgment he assails.; because he has no. power to reverse such judgment by appeal. But in this case the appellant was '& party to all the proceedings in the probate court. The law of Louisiana makes all creditors of deceased persons parties to' such proceedings. It is not necessary that they should be specially-cited or summoned, — a general notice is all that is required ; and the record proves that notice by.advertisement was given by the judge of probates, at every stage of the proceedings, conformably to the law and practice of the State. De Ende v. Moore, 2 Martin, (N. S.) 336; 2 Cond. Rep. 679 ;'La Fon’s Executors v. Phillips, ibid. 225 ; ibid. 644 ;■ Ancieuse v. Dugas, 3 Robinson, 453.
    But further, the appellant was not merely a party in contemplation of law, but an actor in these proceedings. The record shows that on the 3d of May , 1841, he appeared by counsel, alleging himself a creditor, and filed an “ opposition ” to the homologation of the several accounts of the executor, averring them to be entirely incorrect- and illegal,- and praying that they might be disallowed, and that the executor should be ordered to file an amended account in-which the appellant’ ought to be' placed as a creditor for the amount of his judgments in the Circuit Court. But Ke'fleglecte'd to support his opposition by any evidence whatever, and the court very prop- . erly overruled and dismissed it with costs. It is true that the appellant, in his answer, -states that the attorney had no instructions or authority to file such a petition ; and the attorney himself acknowledges that fact. -Had this disavowal been made in the probate court in proper time, supported by affidavit, the court no doubt would have noticed it. JBut surely it cannot be contended that ft can now be made, in a collateral proceeding, and before a different tribunal. In- contemplation of law, therefore, and in point of fací, the appellant was a party to the proceedings, from which he took tip appeal, though the law allowed him one, but by his executions attempted, in the language of one of the cases, “ to seize at once, and by short hand,” property which in the progress of - those proceedings the appellees had purchased Under the sanction of judicial decrees; If he had-taken an appeal it would have been competent fob him to allege the frauds of. which he now complains, and, establishing them' by proof, to set aside the whole proceedings. But that he cannot do collaterally, as he has attempted-in his answer.
    It may be remarked, that the appellant instituted his suits in the Circuit Court,' after the letters testamentary had been granted by the Court of. probates to Stephen Douglas,- which, was on the 26th of May., -1838 ; at/all events, the;judgments-.were'subsequent to.the grant of the letters.; Why did he seek the juYisdictibn of the Circuit Court ?• . Not from ignorance,, because, .he states in his answer, that he “‘had expressly ordered, his. agent to'avoid the State courts altogether, fori réasohs .sufficient; and.to, sue in the federal courts only.” What reasons ? The jurisdiction of the probate courts of Louisiana has been shown, and it is so exclusive that it has been repeatedly decided by the Supreme • Court of that State, that creditors have no right to enforce their claims by action in any other forum. De Ende v. Moore, 2 Martin, (N. S.) 336 ; 2 Cond. Rep. 675-; La Fon?s Executors v. Phillips, ibid. 225 ; ibid.-644; and for this just and obvious reason, that such a right would have a tendency to defeat one of the great objects of all testamentary systems, an equal distribution of assets among all the creditors of the decedent. This was. exactly what the appellant most desired to avoid. It was to overreach the other creditors, — to obtain more than his just dividend at their expense, — that, .in fraud of the law of- the State, he brought his • suits in the Circuit Court. . If he fails, in the attempt, the consequences are of his own seeking. But he has still a locus penitenticc, for, by the Civil Code of Louisiana; articles 1060, 1061, creditors .who omit qr neglect to present their claims are entitled,'even after final distribution, to an equal dividend with those who have been more diligent; to be made up by contribution from the legatees in the first instance, and if there are none, or the amount of legacies be insufficient, then by the creditors who have been paid, so as to put all upon equality.
    •2. The second proposition of. the counsel for the appellant may be' safely assented^ to- The plenary power of the courts of the United States to carry into execution and full effect their judgments; and decrees is unquestioned. Nor has any attempt been made, in this case, to “remit or refer ” the judgments recovered by the appellant against the executor of James S. Douglas to the tribunals of the State of Louisiana for. execution or satisfaction; or to interfere with the rightful jurisdiction of the Circuit ¿Court over those-judgments ; or to claim that it should be regulated by any other process or execution than that which is prescribed by the laws of the United States for their courts. The appellees do not deny that the writs of fieri facias issued regularly upon the judgments, and that the marshal acted regularly in the performance of his duty, according to their mandate. Their only .complaint is, that-in obedience, not to the writs, but to the orders and directions of the appellant, the marshal has seized and-taken in execution their property, instead of the-property of the defendánt in the judgments ; and their only claim is to have the question of property tried by the law of Louisiana; not before the. tribunals-of that State; if the appellant should prefer the foruih which he at first selected ; but if in that forqm, by the law of that State, which, as it has been shown, does not permit a party to take property-in-execution, claimed by a third person, upon a suggestion or allegation of fraud, without first establishing the fraud by judicial decision. .This the appellees respectfully insist, that they, have a clear right to ask, under the provision of the thirty-fourth section of the judiciary act of 1789, in the exposition of which Chief Justice Marshall, delivering the opinion of the court in .Wayman. v. Southard, 10 Wheat. 25, and speaking of judgments in the courts of the. United States, puts the very case in the following words : — “If an officer take the -property of A. to satisfy ah execution'against B., and a suit be brought by A., the question of property must depend entirely on the law of the State.”
    3. It is lastly contended, that the appellees were incapable in-law of becoming the' purchasers of ¡the property they now claim ^ and that, therefore, no title’ passed to them under the sales 'made in virtue of the two decrees of the court of probates. This incapacity, it is said, arose from the fact, that Emeline Douglas, who has since intermarried with Maxwell W. Rland; was at that time the tutrix of her minor children, arid that Archibald Douglas, the other purchaser, was. their under-tutor, by the appointment of the court of probates.. This th^ record itself shows, and is admitted.
    It is, undoubtedly, a' general rule that all qui negotia aliena ge-runt are incapable of purchasing, for their own- benefit, property in which those they represent are interested. Arid this not on the ground of fraud, but because the law will not .allow one, sustaining the character of ari agent, to create in himself an interest opposite to that of his principal. And it is admitted that this hile has been applied to éxecutors, administrators, trustees^ guardians,, tutors, curators, judicial officers, and all other persons, who, in any rfespect, as agents, have a concern in the disposition and sale of the property of others, whether the sale is public or private, or judicial, bona fide, or fraudulent in point of fact.
    But this rule is not inflexible. Where it. is for the interests of the parties concerned, a court will permit a person, standing/in any of those relations, to become a purchaser. And, therefore, it has been frequently held that a purchase made .by a' trustee, under judicial sanction and approbation, was not on that ground to be questioned or set aside. Campbell v. Walker, 5 Vesey, jr. 678 : Prevost v. Gratz, 1. Peters, C. C. Rep. 368 ; Jackson v. Woolsey, 11 Johns. 446 ; Gallatin a. Cunningham, 8 Cowen, 361.
    So.in Louisiana, where the general rule unquestionably prevails,, it has been expressly held that a mother, being tutrix of minor heirs, might lawfully become a purchaser at. a probate sale of property belonging to her deceased husband’s' succession, if sanctioned by the judge within whose jurisdiction the minors have been brought; and that this sanction may be given before or after the sale. McCarty v. Steam Cotton Press Company, ,5 Louisiana Rep. 1.6, 20.

    Now the record in this case shows that both sales were preceded by family meetings, to deliberate and advise touching the interests of the minors ; that they recommended the, sales as necessary and expedient; that their proceedings were homologated by the judge, who thereupon ordered and decreed the sales to be made ; that the property was appraised by sworn appraisers ; notice of the time and place of salé regularly given ; and,- finally, that the sales were made by the judge of probates, ex officio, and. in person, and by him struck .off and adjudicated to the two appellees by name, they being the actual and. highest bidders for prices above the appraisements. There can be no doubt,-therefore, that both purchases were made with the knowledge, approbation, and sanction of the court of probates, and were recognized as valid in the subsequent proceedings of the succession; and, on the authority of the decision above referred 'to, were valid by the láw of Louisiana, Which, of course, must be obligatory in this case upon every other tribunal.
    But further, if there had been no such judicial sanction, it is not competent to the appellant to make' the objection. A purchasé' by a trustee, or other fiduciary, is not absolutely vbid, but voidable only. ■ The heirs in this case • are ithe cestui que trusts, and. it is their right, and - not the right of the appellant, who .is/ a creditor only, and a creditor who has renounced all benefit under these mortuary proceedings, to call in question, or set aside, the sales made to the appelleés. Winchester v. Cain, 1 Robinson, 421 ; Prevost v. Gratz, 1 Peters,. C. C. Rep. 368 ; Wilson v. Troup, 2 Cow-en, 195, 238 ; Opinión of Sutherland, J.; Davoue v. Fanning, 2 Johns. Ch. Rep. 252 ; Jackson a. Woolsey, 11 Johns. 446 ; Harrington v. Brown, 5 Pick. 519 ; Denn v. McKnight, 6 fialst. 385 ; Gallatin v. Cunningham, 8 Cowen, 379, per Colden, 'Senator.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a décree of the Circuit Court of the United States, held in. and for the Eastern District of the State of Louisiana.

The complainants below, the appellees'here, filed their bill against Christopher Ford, the appellant, and Robertson, the marshal of the district, for the purpose of obtaining injunctions to stay -proceedings upon the several judgments and executions, which Ford had recovered in the Circuit Court of the United States against one Stephen Douglas, as executor of J. S. Douglas, deceased.

The judgments amounted to some f 18,000, and the marshal had levied upon two plantations, and the slaves thereon, of which the testator, J. S. Douglas, had died seized and possessed.

The bill set forth .that Stephen Douglas, against whom the judgments had been recovered, neither in his Own right nor as exadutor of J. S. Douglas,, deceased, had any title to or interest in the plantations and slaves, which had been seized under and by virtue .of the ■said executions ; and that the same formed no part or portion of the succession of the testator in the hands of the said executors to be administéred. But that the whole of the said plantations and slaves, including the crops of cotton, and all other things thereon, were the true and lawful property, of the complainants ; that thpy were in the lawful possession of the same, and had been for a long time before the issuing of the executions and seizure complained of; and had acquired the said property, and the title thereto, at a probate sale of all the property belonging to the estate and succession of the said testator, — which sale was lawfully made, and vested in the complainants a good and valid title. All which would appear by the proces verbal of the said-adjudications, and the mortuary, proceedings annexed to and forming a part of the bill.

An injunction was granted, in pursuance of the. prayer of the bill, staying all proceedings on the judgments rendered in the three several suits, and also on the executions issued thereon against the property.

Christopher Ford, the adjudged creditor, in answer to the. bill, denied the validity of the probate sales of the plantations and slaves to the complainant's ; and charged that they were effected, and the pretended title thereto acquired, by fraud and covin between.the executor, Stephen Douglas, and the executrix, the widow of the tes--tator, and one of the complainants, for the purpose of hindering and defrauding the creditors of the estate ; that in furtherance of this design a large amount of simulated and fraudulent' claims of the executor and executrix were presented against the succession, to wit, $53,000 and upwards in favor of the former, and $76,000 arid upwards in favor of the latter, which were received and allowed by the probate ■ court without any vouchers or legal evidence of the genuirieness of the debts against the estate ; that- these simulated and fraudulent claims were made the foundation of an application to the said probate court for an order to sell the two plantations, and slaves thereon, under whom the widow and one Archibald Douglas became the purchasers at' the probate sale ; that neither had paid any part of the purchase-money to the executor or probate court; and which was the only' title of the complainants to the property in question, upon which the defendant had caused the executions to be levied.

In confirmation of the fraud, thus alleged in the probate sales in the parish of Madison and State of Louisiana, the defendant further charges, that the testator died seized and possessed, also, of a large plantation and slaves and personal property therein situate in the county of Claibomé and State of Mississippi, inventoried at upwards of $70,000, besides notes and accounts to the amount of $ 161,000 and -upwards, that the said plantations and slaves were, on application of Stephen Douglas, the executor, to the probate court in that State, and an order for that purpose obtained, sold, and purchased in by the widow and executrix for about the sum' of $40,000, and that the personal estate, of $161,000 and upwards, of notes and accounts, were not, and have not been, .accounted for by the executor to the court of probate.

In short, according to the answer of the defendant,, the estate and succession of the deceased debtor, inventoried at about' the sum of $ 300,000,. and for aught that áppears available to that amount, has been sold and transferred through the instrumentality arid agency of family connections, under color of proceedings apparently in due form in the probate court, into the hands of the widow and a brother of the deceased, without adequate consideration, if consideration at all, and with the intent to hinder, delay, and defraud the creditors of the estate, and particularly the defendant.

The complainants excepted to the answer filed bv the defendant, because the matters and doings set forth therein could not, in law, be inquired into in the present suit, or proceedings instituted by the said complainants, and prayed that they bright have the benefit of their injunctionj and that it might be made perpetual.

And thereupon it was agreed that the'case might be set down for argument on the matters of law arising on the bill and answer,; and that if the judgment of the court in matters, of law. should be for the defendant, the complainants might join issue on the fact, and testimony be taken in the usual manner.

The court', after argument of counsel, decreed that the exception of the complainants to the defendant’s answer was well taken, and gave leave to answer over, which was declined ; and, therefore, the court adjudged and decreed that the injunction theretofore awarded in the case should be made perpetual; .and it was further adjudged and decreed that complainants recover the costs of suit, without prejudice to the right of the defendant to any action he might think proper.

The decision of the court below, and the view which, we -have ■ taken of the case here, do not 'involve the question, whether the matters set forth in the answer sufficiently established the fact that a fraud had been committed by the complainants against creditors, in the several sales and transfers of the property in question, through, the iristrumentality of the probate, court, nor, as it respects the effect of the fraud, if established, upon the title derived under these sales. If the . case depended upon the decision of these questions, we entertain little doubt as to the judgment that .. should be given.

The ground of the decision below, and of the argument here, is, that the complainants were not bound to ■ answer the allegations of fraud against their title, in the-aspect, in which the case was presented to the court; that a title derived under a public sale,, in due form of law, by the probate judge, protected them in the full and peaceable possession and enjoyment of the property until the conveyance was vacated and set aside by a direct proceeding Instituted for that purpose ; and that this step, on the párt of the judgment creditors, was essential, upon the established law of the State of Louisiana, before he could subject the property to the satisfaction of his judgment.

We have, accordingly, looked into the law of that State on this subject, and £nd the principle contended for well settled and uniformly applied by its courts in cases like the present.' ' The judgment creditor is not • permitted to treat a conveyance from the defendant in the judgment made by authentic act, or in pursuance of a judicial sale of the succession by a. probate judge, as null and void, and to seize and' sell .the property which had thus passed to the vendee. The law requires that he should bring an action to set the alienation aside, and succe'ed in the same, before he can levy his execution. And so firmly settled and fixed is this principle in the jurisprudence of Louisiana, as a rule of. property, and as administered in the courts of that State x-that even if the sale and conveyance by authentic act,’ or in pursuance of a judicial sale, are confessedly fraudulent and void, still no title.- passes to a purchaser under the judgment and execution, not a creditor of the vender, so as to enable him to attack the. conveyance and obtain possession of the property. -In effect the sale, if permitted to take place, is null and void, and passes no title. Henry v. Hyde, 5 Martin, (N. S.) 633; Yocum v. Bullitt, 6 ibid. 324; Peet v. Morgan, 6 ibid. 137; Childres v. Allen, 3 Louisiana Rep. 477; Brunet v. Duvergis, 5 ibid. 124; Samory v. Hebrard et al., 17 ibid. 558.

The’ case of Yocum v. Bullitt et al., among many above referred to, is like the one before us.

The court there say : — The record shows that the slaves had been conveyed by the defendant in ' the execution by a sale under the private signature recorded in the office of the parish judge of St. Landry,, wheré the sale wasi made. If the sale was fraudulent it must be regularly, set aside by a suit instituted for that purpose ; that it was not less a sale and binding upon third parties until declared null in an action which, the law gives (Curia Phil. Revocato-ria, n. 2); that the possession of the vendee was a legal one, until avoided in due course of law.” The court further remarked, that — The same point had been determined at the preceding-term, in which it had been held that a conveyance alleged to be fraudulent could not be tested by the seizure of the property or estate belonging to the vender, but an action must be brought to annul the conveyance.”

The principle runs through all the cases in the books of reports in that State, and has its foundation in the Civil Code (art. Í965, 1973, 1984), and in the Code of Practice (§ 3, art. 298, 301, 604, 607), and in Stein». Gibbons &A‘Irby (16 Louisiana Rep. 103). And from the course of decision on the Subject it is to be regarded not merely as a rule of practice, or mode óf proceeding in the enforcement of civil rights, which Would not be binding, upon this court, but as a rule of property that affects the title and estáte of the vendee, and cannot, therefore, be dispensed with without disturbing one of the securities upon which the rights of property depend. It gives strength and stability to its possession and enjoyment, by forbidding the violation of either, except upon legal proceedings properly instituted for the purpose. Neither can be disturbed, except,by judgment of law.' For this purpose, the appropriate action is given, providing for the secession of all contracts," as well as for revoking all judgments when founded in fraud of the rights of creditors. .-

In this court, a bill hied' in the. equity code is the appropriate remedy to set aside the conveyance. In the present case a cross bill should have been filed, setting forth the matters contained in the answer of the defendant. The vendees would then have had an'opportunity to answer the allegations of fraud charged in the bill, and, if denied, the parties could have gone to their proofs, and the case disposed of upon the merits.

It is said that in some of the western States an answer like the one in question would be regarded, by their courts in the nature of a cross bill, upon which to -found' proceedings for the purpose of setting aside the fraudulent conveyance. But .the. practice in this court is otherwise, and more in conformity with the established course of procéeding in a court of equity.

We are of opinion, therefore, that the appellant mistook his rights in attempting to raise the question of fraud in the probate sales in his answer to the injunction bill; and that instead thereof he should have filed a cross bill, and have thus instituted a direct proceeding, for the purpose of settii,0 aside the sales and-subjecting the property to his judgments and executions ; and that in this respect, and to this extent, the decree of the court below was correct.

But on looking into the decree, we are apprehensive that it has been carried further' than the assertion of the principle which we are disposed to uphold, and which may seriously embarrass the appellant in the pursuit of a /remedy, that is yet clearly open to. him.

The injunction issued, on' filing the .bill of. complainants, commanded the appellant to desist from all further proceedings on his three judgments, or on the executions issued against the, property ; arid the court, ón the coming «1 of the answer, has decreed that die same be- made perpetual. And further, that the complainants recover the costs of suit, without prejudice to the right of the defendant to any action he may think proper.

It is at least a matter of doubt, and - might be of litigation hereafter, whether, upon the broad and absolute terms of the decree Used in enjoining, the proceedings, the party is not concluded from further proceedings against the property in question, founded upon these judgments and executions.

They must-constitute the foundation of his right and title, ..upon filing a cross, bill, to any relief, that he may. hereafter show himself entitled to. The saving clause may not be regarded as necessarily leaving a proceeding of this description open to him. A question might also be raised, whether the’judgments are not so effectually enjoined, as to prevent their enforcement against' property of the judgment debtor not in controversy in this suit. At all events, we think it due to the appellant, and to justice, looking at the nature and character of the transaction and proceeding as developed in the'pleadings, that the. case should be cleared of all doubts and dispute upon this point. We shall, therefore, reverse the decree, and remit the proceedings' to the court below, with direction that all further proceedings on the three judgments and executions be stayed, as it respects the property seised and in question, but that the appellant have liberty to file a cross bill, and take such further proceedings thereon as he may be advised.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is ordered and decreed by this court, that the. decree of. the said Circuit 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 Circuit Court, with directions to that court that all further proceedings on the three judgments and executions be stayed, as it respects the property seized and in question ; but that the appellant have liberty to file- a cross bill, and to take such further proceedings thereon as he may be advised ; and that such further proceedings be had in this cause, in conformity to the opinion of this court, as to law and justice shall appertain. -


source: Caselaw Access Project

author: Mr. Justice:'NELSQN

license: Public Domain

text:
    Hezekiah H. Gear, Appellant, v. Thomas J. Parish.
    In this case, the pleadings and proofs show that a mortgage executed by the debtor to the creditor was really for an unascertained balance of accounts, which the sum named in the mortgage was supposed to be sufficient to cover. ■
    As it did not prove to be sufficient, and the creditor obtained a judgment against the debtor for the residue, the pajment of the sum named in the mortgage was no reason for an injunction to stay proceedings upon the judgment.
    This was an appeal from the judgment of the Supreme Court of the Territory, of Wisconsin, sitting as a court of.chancery.
    Parish filed a bill in the District Court of Iowa County, Territory of Wisconsin, fpr the-purpose of compelling Gear to enter satisfaction of a certain mortgage executed by the former to him, or to reconvey the premises therein, charging, that it had been'fully paid and satisfied ; and for the purpose, also, of a perpetual stay of a certain judgment confessed, and entered up in favor of Gear against Parish.
    The mortgage was executed on the 27th of April, 1836, and was given to secure the payment of $ 4,200, four months after date; and’ the bill charged that the whole amount, with interest thereon, had been paid on the 1st of August, thereafter, and a recéipt taken for the same ; that Gear had refused to deliver up and cancel the said mortgage, or reassign the premises unless the complainant would pay, in addition, the amount of a certain judgment that had been obtained against him, and which, he charged, was given for part and parcel of the money secured by the mortgage, and of course satis-; fied with it.
    The defendant, in his answer, set up that previously to the execution of the mortgage the parties had been engaged in extepsive business transactions with each other; that he had, at different times, advanced large sums of money to and incurred many liabilities for the complainant; and that the mortgage in question was given to secure the payment of such an amount as complainant would be found-indebted in on the final adjustment of their accounts. That no settlement had taken place or balance been struck between them; but that defendant had subsequently ascertained that the sum of $ 1,562.38 was justly due him, over and above the amount secured by the mortgage. That this demand was placed in the hands of an attorney for collection, whereupon the complainant confessed the judgment in question, with a stay of execution for six months.
    The defendant further answered, and admitted that the mortgage had been fully paid and satisfied ; but denied that he had refused to-reconvey the mortgaged premises. On. the contrary, he had executed and delivered to the complainant a release of all his right and title to the premises, and which had been accepted as satisfactory!
    The complainant put in a replication, and the parties went to their proofs.
    There were but two witnesses examined, one of them present at the execution of the mortgage, the other at the giving of the judgment.
    Hamilton, who was present at the execution of the mortgage, states that he was at Galena in the spring of 1836, when the parties were engaged in closing their business ; that the amount on book due Gear exceeded $ 3,000, besides other charges and accounts outstanding, .the amount of which was not then ascertained. That it was agreed a mortgage of $4,200 should be given, which, as was supposed by both parties, might be sufficient to cover the whole of the indebtedness ; but that a settlement was to be made thereafter, and the exact balance ascertained, and to be adjusted accordingly, whether it should exceed or fall short of the sum specified in the mortgage. Neither party was to be concluded as to the amount; that was to depend upon the final adjustment of the accounts.

      Mr. Tumey, the. attorney who gave""the judgment for Parish, states that he was consulted by him at the time a suit was threatened for the recovery of this balance, claimed as due over and above the mortgage; that at the request of Parish he had an interview with the attorney of Gear on the subject, when it was agreed that, if judgment was confessed for the amount claimed, the mortgage should be given up and cancelled, and all errors corrected, if any, on ascertaining the balance between the parties; that the judgment was given with this understanding.
    •Upon this state of the pleadings and proofs, the District Court decreed that the injunction which had been previously issued, enjoining the defendant. Gear, from collecting his judgment against Parish, should be, made perpetual, and that the complainant recover his costs of suit. ■
    On an appeál to the Supreme Court of the Territory, by the defendant, the decree was ..affirmed, with costs. The case was brought here on an appeal from that decree.
    The cause was argued by Mr. Breese, for the appellant, and JWr. May,4or the appellee.
    • Mr. Breese

    contended that the decree was erroneous, because the answer of Gear dénied all the material allegations of the bill or. which the injunction was allowed, and they were not sustained by the depositions óf Hamilton and Turney.

      Mr May, for the appellee,.
    The principal questions presented for adjudication in this case are the following-: —; .
    ■ I. ’ Does the' bill, answer, and proofs disclose a case in which equity can relieve ?
    II. What is the nature and -extent of the relief to be granted in this case ?
    As to the first proposition, it is submitted that this is a case in which relief can alone be obtained in a court of.equity. It may be viewed as .an application to compel the specific performance of an agreement,' which is exclusively the province of a court of equity ; for at law redress may'be had after a wrong is done, but equity can interpose and prevent the commission of a wrong. 1 Story’s Eq. Jurisp., § 30. The relief sought in this case is the cancellation of a deed, and-"equity alone can afford this relief. 1 Johns. Ch.. R. 520.
    But, in this case a judgment at law is sought to be rendered- im operative, and all proceedings thereon stayed and restrained. It is true' that a judgment at law is conclusive between the parties thereto when the merits have- been' passed upon, and unless reversed operates as an estoppel ; but when, in the procuring of such judgment, fraud or misrepresentation, or’any description of malajides has been practised, equity will grant relief. 2 Story’s Eq. Jurisp., §§ 885, 887 ; 1 ibid. § 192 ; 1 Fonblanque Eq-., b. 1, ch. 1, § 3, note f (3d' Am. ed. pp. 28., 29). The only w.ay in which a defendant can reverse or annul a judgment at law*- is by a writ of error ; but when a judgment is,obtained by confession, he is without redress at law, for confession takes away error.
    But where the plaintiff’s attorney, in an action at law, made an agreement with a defendant that if she would coiifess judgment he would levy an execution, and satisfy the judgment- out of the property of another defendant,, keeping her harmless ; and upon such agreement a judgment was confessed, but the plaintiffs neglected and refused tq comply with the agreement, a court of chancery decreed a perpetual injunction of the judgment, and, on appeal, this court affirmed the decree. Union Bank of Georgetown v. Geary, 5 Peters, 99. 'It is submitted that this case is in all respects in point and conclusive, in this cause, so far as the question of jurisdiction and power to relieve is involved. Equity will relieve against a judgment obtained at law by confession. 3 Harris & Johns. 568.
    The remaining inquiry in disposing' of the first question is as to the case made out by the complainant. The allegationsjof the bill in relation to the original transactions are, in most material respects, admitted by the defendant, and are also fully proved by the deposition of Wm. S. Hamilton, who states that the books of account of Gear were produced, 'showing Parish’s account, and that the amount of ‡4,200 was considered by all the parties as amply sufficient to cover all contingencies. The testimony of John Turney fully sustains the averments of the bill in relation to the compact and terms on which Parish confessed the judgment. But it may be argued'that'inasmuch as the defendant, in his answer, denies the allegations'' and equity of the bill in relation to this compact or agreement, it should be sustained by stronger proof in order to merit relief. It is conceded that, in equity, where any matter is averred by the complainant in his bill which is- material, and the same'matter is positively denied by the defendant in his answer, then the answer will prevail) unless the bill is sustained by two witnesses, or one witness and corroborating circumstances ; but it is contended and insisted, that in this causé the principle is in no way applicable, and can have no bearing whatever. ' Equally as clear as the foregoing principle of chancery practice is another, that if a defendant, by his answer, introduces new matter, not responsive to the allegations of the bill, such new matter must be proved by other •means (12 Peters, 190), or it cannot avail, and it may prejudice him by evincing .a desire, on .his part, to evade and lead off to matters foreign to the points in issue, or if a defendant’s answer contains contradictory, unreasonable, or irreconcilable statements, or makes averments which are disproved by written instruments on the same point, or if it positively deny charges of which in the very nature of the thing the defendant could have no personal knowledge, then thq, testimony of one disinterested witness, with corroborating circumstances, will prevail, and in some_ instances the court will treat the answer as a nullity, disproving itself, and the bill will prevail with one witness. - 9 Cranch, 160 ; 2 Johns. Ch. R. 92; 5 Peters, 111 ; 4 Monroe, 174 ; 1 Munford, 373. In this case, Gear, in his answer, positively denies that Parishwvas induced to confess the judgment by the promise and undertaking of Mr. Hoge. Now it requires no argument to demonstrate' that this was *a matter of which Gear could have no knowledge whatever. He was not present, and even if he had been informed, still he is unwarranted in stating positively, as of his own knowledge, what were or were not Parish’s motives. Moreover, he avers directly that the mortgage or deed was never acknowledged or recorded, and yet the instrument itself, which was then in his possession, directly contradicts his averment, although it may be of but little importance whether this instrument’ were acknowledged and recorded or not, still a defendant,- who has the means of correct knowledge within his exclusive control, is bound and expected to answer truly in all things, and if he make statements in his answer, and at the , same time presents that which absolutely disproves those statements, he thereby throws suspicion on his answer, and affects and «taints it's credibility.
    If, then, the statements of the answer in regard to the agreement between Hoge and’Parish are unreasonable and can have no effect, we then have the averments of the bill (which is'sworn to) sustained by testimony of Turnéy, and the admissions of Hoge as proved by Turney. And strong corroborating circumstances are observable in the supineness of Gear in this matter. Hoge was his attorney, admitted to be such in the answer, and resided in the same place with him, and if the agreement really was not such as stated by Parish, was it. not very easy for him ■ (Gear) to obtain Hoge’s deposition disproving the bill ? Yet he speaks’ positively, as of his own knowledge,'of transactions and motives of which he could know nothing, except from information, and’ neglects to use the proof (if any such existed) of these things, which any reasonable man would have certainly resorted to. In this relation, the case from 5 Peters, 111, is very much in point; in that’case, as in this, the agreement was with the attorney, and the defendants in that case denied, the agreement with their attorney, of which they could have no positive knowledge; in this case the defendant has pursued the same course. The agreement between Parish and Hoge, the appellant’s attorney, must be considered as proved. True, it. is denied by Gear in his answer, hut, as has already been shown, he knew nothing about, it, and his denial amounts to nothing. It was expressly and exclusively the consideration in confessing the judgment, and it was a valuable consideration to Parish, as he alleges in his bill, and appears by the testimony of Turney. It would have enabled him to free the title of the lands he had sold, and convey them, and, it may be argued, receive a pecuniary advantage by it; for this consideration Parish relinquished all defence in-the suit at law. He states that he owed Gear nothing, that he had a good defence.
    .In the language of this court, in 5 Peters, 114, — “ It is unnecessary to examine whether this defence would ■ have been available or not; the validity of the contract did not depend upon that question. It is enough that the bank considered it a doubtful question, and that they supposed they were gaining some benefit'by foreclosing all inquiries on the subject; and the complainant, by precluding herself from setting up the defence, waived what she supposed might have been of material benefit to her.”
    Gear did not fulfil this, agreement, made by his attorney, Hoge .; he states, as the reason for his failure, that he could not find the mortgage. But it is afterwards produced, and it must be presumed, to have come from his custody. The promise and inducement to. the confessing the judgment was not kept by Gear, or realized by Parish. Was not this transaction, then, an imposition or fraud upon Parish ? If so, all proceedings on the judgment ought to have been restrained. Did not Gear make, by his attorney,' an improper and unfair use of his possession of the mortgage, wdnch had been fully discharged by Parish, as appears by the receipt, and the terms of the mortgage itself to induce Parish to confess the judg,ment. 1 Sclioale & Lefroy, 205.
    It is plain that Gear intended to hold the mortgage until the pretended balance was paid. That, as he recollected it, “said deed was given to secure this defendant the payment of the sum of $.4,200, and such other sum as the complainant might be indebted .to-this defendant.”
    Again, there is no proper jurat to the answer in this case, — the answer appears to have been “ sworn to and subscribed ” before a proper officer ; but it is submitted that this cannot, by correct chancery practice, be taken as a sufficient jurat (1 Harrison’s Chan. Prac.' 218 ; 1 Turner and Venable’s Chan. Prac. 544) ; there is not that certainty as to what the deponent swears to, whether of his knowledge or of his belief (9 Cranch, 460) ; so that an indictment for perjury might be sustained if the deponent swore- falsely. If this position be correct, then the answer in this case is, as in the case in 5 Peters,. 99, merely tantamount-to the general issue at law, and the material averments of the bill, so far as they are denied by the answer, are fully proved by Hamilton .and Turney, and sustained by every reasonable deduction from the circumstances.
    But in relation to the second question presented by this cause, which is as to the nature and extent of the relief to be extended, it is submitted that the main relief sought by the complainant is the cancellation of a deed. The bill, however,’ prays for a discovery and general relief, and the weight and- current of authority is, that when equity obtains cognizance for the purpose of discovery and injunction- it will retain the causé in order to do ample justice in cases such as this, where a matter of account is involved. 1 Story’s Eq. Jufisp., § 64 ; 2 Johns. Oases, 431 ; 3 Conn. 141 ; 10 Johns. 695 ; 17 Johns 388 ; 12 Peters, 188.
    It was no sufficient reason for dissolving the injunction, that Gear afterward offered to give up, release, or cancel the mortgage ; the fraud or imposition had been then completed. His faith had been violated- The injury to Parish was then inflicted. His damage may have been suffered. He had been compelled, by Gear’s own conduct, to bring him into a court of equity. Being there, Gear was in no wise injured, he had the fullest and fairest right and opportunity to claim his demand, and if just have it allowed.
    The relief given in this case should therefore go farther than the cancellation and pass upon and decide the unsettled account between the parties. If there was, as Gear understood and recollected, an unsatisfied balance-charged on the mortgage, that very question was presented for the consideration of the court; as the bill prays to have u the mortgage indenture cancelled, on paying the balance of the mortgage money, if any,” &c. The account between the parties was then fairly presented to the court.
    The appellant had ample time and opportunity to sustain his account,' if any he had, to show that the balance claimed was- omitted by mistake or otherwise in the settlement of their accounts in 1836, when the mortgage was given to secure the full sum claimed, and moré ; but Gear did not offer any evidence to prove the balance of his account.
    Besides, the' account on which the'judgment was confessed was very properly, under the circumstances, to be reviewed ; it was, according to the testimony of Turney, a judgment upon, terms, that is,. “ any errors in the account sued on would be corrected by Gear.”
    • The defendant made the indebtedness of Parish, upon which the judgment was obtained, a substantive allegation ,in his answer ; the onus probandi was with him to prove these allegations, and undoubtedly if he had proved his claim the chancellor would have decreed payment in accordance with equity and justice. But when he neglected to do so, having ample time and opportunity, and being presumed to know his legal rights, and allowed the cause to be heard by the court without the. shadow of any such proof, the fair and just 'inference is that he could not prove any further indebtedness against Parish, especially when Hamilton’s testimony shows that the books of account of Gear were produced on the original settlement, and they then presented no such indebtedness ; but, on the contrary, all parties appeared satisfied that $ 4,200 would cover the whole claim, n
   Mr. Justice:'NELSQN

delivered the opinion of the court.

We are unable to discover any foundation for the decree of the •court below. The pleadings and proofs harrowed the question down to the simple inquiry as to the force and effect of the judgment -between the parties, which had been rendered upon confession. The answer appears to have removed all further complaint about the refusal of Gear to cancel the mortgage 'and disencumber the premises, as the subject is not-carried into, nor made a part of, the decree. That is confined to the order enjoining the defendant,, his agents and attorneys, perpetually from collecting the judgment.

The sole question, therefore, is, whether or not, upon.the pleadings and proofs, the appellant is justly entitled to enforce the payment of this money.

■The bill of complaint admits, and the answer reiterates the admission,'that the mortgage was executed to secure the payment of an unadjusted balance of accounts arising out of extended business transactions. The exact sum being, at the time, unascertained, an. amount was agreed upon, and carried into the mortgage, supposed to be large enough to .cover any balance that might be found due.

Neither party was to be concluded by the mortgage, or the amount agreed upon. The actual indebtedness was to depend upon a future settlement of the accounts.

The proofs confirm this view, and further establish, that the judgment was confessed voluntarily and advisedly', for a balance ascertained, and claimed by Gear to be due over and above the mortgage ; and that thé only reservation made, at the time, was the privilege of correcting errors in the adjustment of the accounts, if any should be made to appear thereafter.

The judgment was not given, as in the case of the mortgage, for an unascertained-balance; and therefore a' security, simply, for whatever sum the plaintiff- might thereafter show to remain due and unpaid. A 'specific ¿um was- claimed', as the true balance of the accounts,' and a suit threatened. . The judgment was confessed for this sum., subject to the'right. of Parish to reduce the amount. Failing.^or omitting to do this, the whole amount, was collectable. The burden lay upon him to show the errors, if any ; that he assumed, according to the very terms upon which he consented to confess the judgment; • and as no errors were shown, or are even pretended, in the case before us, it. is clear the plaintiff is entitled to’ the whole amount of his judgment and to execution for the same ; and that the court below erred-in entertaining the bill and awarding the injunction.

We shall, therefore, reverse the decree, of the court below, with costs, and remit the proceedings, with direction to dissolve the injunction, and. dismiss, the bill with costs of suit.

Order.

This cause came on. to be heard on the transcript of the record' from the Supreme Court for the Territóry of Wisconsin, and was argued by counsel. On consideration whereof, it is now Rere or-, dered and decreed by this court, that the decree 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, with directions to that' court to dissolve the injunction in this case, and to dismiss the bill of the complainant with costs of suit.