source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    Edward P. Fourniquet and Harriet Jane Fourniquet, his Wife, Appellants, v. John Perkins.
    The jurisdiction of courts of probate in Louisiana is confined to cases which seek an account and settlement of effects presumed to be held by the representative of a succession. It has not jurisdiction over cases of alleged fraud or waste,'or embezzlement of the estate.
    The District Courts are courts of general civil jurisdiction.
    Hence, where a petition was filed in the Court of Probate against an administrator, praying that he might account and also be held liable for maladministration and spoliation, it was proper to transfer the case for trial to the District Court.
    The judgment in the District Court, being generally for the defendant, must bq supposed to cover the whole case, and not to have rested upon only a branch of it, viz. a release which was pleaded by the defendant.
    Therefore, where ¡j bill was filed in the Circuit Court by the same petitioners against the same defendant, it was correct for that court to consider the question as res judicata.

    The Louisiana decisions upon the jurisdiction of the Probate and District Courts examined.
    This was an ■ appeal from the Circuit Court of the United States for the District of Louisiana.
    In the year 1818, Mary Bynum, the widow of Benjamin By-nhm deceased, was living in the parish of Concordia-, State of Louisiana, with four children, of whom Harriet, the wife of the appellant, was one.

      In August, 1818, Mrs. Bynum intermarried with John Perkins, the present appellee.
    In August, 1824, Mrs. Perkins died.
    In March, 1827, Perkins filed two inventories and appraise-ments in the Parish Court; one, of the estate ,of Benjamin By-num, deceased,, amounting to $ 26,055, and the other of Mrs. Mary Perkins, deceased, amounting to $6,575. About the same time, Perkins was appointed administrator of the estate of Benjamin Bynum, and guardian of the infant children.
    In May, 1827, he filed an account, showing an administration of the estate as far back as 1817. The account was filed by him as curator ad bona and tutor to the minor heirs.
    In.1834, after the marriage of Harriet with Fourniquet (the present appellants), Perkins stated his account as guardian of Harriet Bynum separately, bringing her in debt to him $550.81, which sum Fourniquet paid by a check on the Planters’ Bank. The following receipt was. also subsequently given to Perkins by Fourniquet and wife-:—
    Received, Natchez, May" 27th, 1834, of John Perkins, in settlement of an account, debts due, and demands, whatsoever, to the present day, one hundred dollars ■ in full; having, on a previous occasion, received from him, as guardian of my wife, Mrs. Harriet Fourniquet, late Miss Bynum, all the estate, portion, and share she inherited by the death of her late father, Benjamin Bynum, late of Concordia, Louisiana, deceased, or her mother, Mrs. Mary Perkins, of the county of Adams and State of Mississippi, and brothers, Benjamin S. Bynum, of the county of Claiborne, State last'aforesaid, deceased, and- do, by these presents, jointly with my said wife, release, and for ever discharge, the said Perkins, either as guardian, or otherwise, growing out of the estate aforesaid, or in any other manner or shape whatsoever, and for ever exonerate him, by these presents, his heirs, executors, and administrators, therefrom.
    “ In witness whereof, we have hereunto set our hands and seals, the day and year first above written, to wit, in the year of our Lord one-thousand eight hundred and thirty-four, in. the presence of Elijah Bell and John E. Maddox, whose names are hereunto subscribed as witnesses thereto, the said John Perkins being also personally present, and by these presents accepting.

      “ Signed, sealed, and delivered.
    (Signed,) E. P. Fourntquet, [seal.] Harriet J. Fourniquet, [seal.] John Perkins. [seal.]
    “ Witness present: Elijah Bell, John E.. Maddux.

      “ State of Mississippi, Adams County :

    “Personally before me, Woodson Wren, a _ stice of the peace for the county of Adams, appeared E. P.. Fourniquet and Harriet J. Fourniquet, his -wife, and John Perkins, whose names are subscribed to the foregoing instrument, and acknowledged that they signed, sealed, and delivered the same, as their act and deed, on the day and for the uses and purposes therein mentioned.
    “ Given under mv hand and seal, the 2Sth May, 1834.
    (Signed,) “Woodson When, [seal.]”
    In-1837, the parties mutually confirmed the above instrument by the following acknowledgment: —

      “ State of Louisiana, Parish of Concordia :

      “ I, George W. Keeton, judge of the said parish, duly commissioned and qualified, do hereby certify and attest, unto all whom it doth or may concern, that Harriet J. Bynum, wife of Edward P. Fourniquet, and Edward P. Fourniquet, and John Perkins, personally appeared before me, and acknowledged that they had signed and sealed the foregoing instrument of writing as and for their proper act and deed. To the due execution •thereof, an act being requested, the same under my seal of office to serve as occasion may require.
    “ Done and passed at my office, in the town of Yidalia, on r the thirteenth day of January, A. D. eighteen hun-[seal.j ¿re(j anq thirty-seven.
    (Signed,) J."W. Keeton, P. Judge.”

    In December, 1838, Fourniquet and wife, then residing in the State of Mississippi, filed their petition in the Court of Probates for the parish of Concordia, in the State of Louisiana, preferring their claim against Perkins for a large amount of property alleged by them to have come to his hands, and alleging that the receipt obtained from them had been given through ignorance and error, and in direct contravention of a provision of the law, and was therefore void. They charged upon Perkins, both as admiristrator and curator ad bona of the childrefi of Mrs. Perkins, spoliations to a large amount, and prayed that he might render a full'account of his transactions with respect to the successions of Benjamin Bynum and Mrs. Perkins, and with respect to his guardianship, and be compelled to make full compensation to the petitioners. In February, 1839, Perkins filed .his answer, first interposing three exceptions to the prayer óf the petition. The two first of these exceptions it is not material here to notice ; the third was in effect a plea in bar, insisting on the receipt and'-, release above set forth. The answer followed the allegations of the petition, and controverted them all, alleging that the respondent had discharged his duty with fidelity.
    A ’ supplemental petition and answer were afterwards filed, which it is not necessary to state particularly.
    On the 10th of December,-184.0, the case was transferred, by consent, to the Ninth District Court, in the parish of Concordia.
    On the 24th of December, 1840, the cause came on for trial in the District Court, when the jury found a verdict for the defendant, and the court thereupon pronounced judgment in his favor.
    In June, 1844, Fourniquet and wife filed a bill on the equity side of the Circuit Court of the United .States in and for the District of Louisiana. It .claimed, in right of the wife, part of her inheritable portion of the estates of her father and mother, and prayed for. a full account of the use and profits thereof from August, 1824, to May, 1827. It averred that Benjamin By-num, the father of Harriet, left a large, unencumbered estate at his death; that it was out of debt, ánd had a large amount of money on hand and debts due to it at the time when Mrs. By-num intermarried with Perkins; that Perkins took possession of all the property, maleadministered and used it as his own; that he presented false and fraudulent accounts to the Court of Probate. The bill admitted the execution of the receipt and release, but charged them to have been obtained by false- representations ; it stated that a suit had been brought in the Probate Court by the complainants, and that it had been transferred by consent of all the parties -to the District Court, but protested that the District Court had no jurisdiction of the subject-matter thereof, and therefore its judgment could be no bar to the complainants’ present suit. The bill then prayed for an account and general relief.
    To this bill. Perkins pleaded in bar the record, proceedings, arid judgment of the District Court, averring that these embraced and concluded the whole matter set forth and complained of in the bill. The plea was supported by an answer, which' denied all the allegations of the bill.
    On the 10th of April, 1845, the Circuit Court pronounced the following decree :—
    “ This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed, as follows, viz. : That the plea of the said defendant, by him pleaded in bar to the bill of the said complainants, be sustained and judged a good and sufficient bar to the said plaintiff's actioti/'as set forth in his .bill, and that the said complainants’ bill be-dismissed, with costs.”
    An appeal from this decree brought the case up to this court.

      It was argued by Mr. Fendall and Mr. Henderson, for the appellants, and Mr. Core and Mr. Downs, with whom ‘was Mr. Mayer, for the appellee.
    That part of the argument for the appellants which related to the point upon which t£e decision of this court turned was as follows.
    3d. But as matter of law, the jurisdiction of the court which pronounced the judgment pleaded in bar was a naked usurpation. It had no authority whatever, ratio'ne, materia. Its decision was therefore wholly void, and required not to be excepted to by' plea. Louisiana Code of Practice, Art. 333.
    And consent could not aid or give jurisdiction in such case. Ibid., Art. 92; 1 Martin, N. S. 704; 14 La. Rep. 179.
    Such adjudication is void. 1 Pet. 340; 2 Pet. 169; 13 Pet. 511; 12 Pet. 719; 3 How. 762.
    The Code of Practice was adopted on the 2d of September,-1825, and in force throughout the State on the 2d of October, 1825. 11 La. Rep. 515.
    Before this code the probate powers were somewhat distributed among the courts, and not well regulated or defined. The reported cases,-therefore, before the year 1825, furnish no rule as to the jurisdiction involved in the present inquiry. See Tabor v. Johnson, 3 Martin, N. S. 674. Art. 924 of the Code of Practice provides, that “ Courts of probate have the exclusive power, — 2. To appoint tutors arid' curators for minors, &c. 4.
    To appoint curators to vacant estates. 5. To make inventories and sales of the property of successions which are administered by curators',' &c. 9. To compel such administrators (all such) to render an account when required,” See.

    And by the act of the Legislature of March 25th, 1828, sec. 14, it is enacted, “ That all suits brought against curators and other administrators during the time of their administration or curatorship shall, after the expiration of said time, and even after said curators and administrators have rendered their accounts to the heirs, be and remain in the Court of Probates,” — there to be continued and tried, Sec. See the act in Code of Practice, ed._ 1839, pp. 194 -198, or Bullard and Curry’s Digest.
    So stands the State law, as to the exclusive jurisdiction in the Probate Court of the matters in the suit pleaded in bar, as adjudged in the District Court. The jurisdiction of District Courts is shown in Art. 126 of the Code of Practice, and that of the Parish Court in Art. 128.
    In the case from the District Court, 6 Martin-, N. S. 212, it was adjudged by the Supreme Court of Louisiana, in 1827, (after the Code of Practice was in operation,) that the Probate Court had the exclusive jurisdiction to compel the defendant, whose office of tutor had expired, to account and pay over money in his hands. And that the District Court was without such authority, and thereupon dismissed the case.
    But the case in 7 Martin, N. S., pp. 105-107, decided in 1828, is precisely the case pleaded in • bar. The suit was instituted in the Probate Court against the curator of a minor. The judge' recused himself, and the suit, by consent of parties, was transferred for trial to the District Court. Held, that under the old code,-where such consent was given, the adjudication was not void; but by the Code of Practice the Probate Court alone had power to try such cases, and consent of parties could not. confer the power on the District Court. Judgment therefore annulled.
    To like eifect is the case in 4 La. Rep. 539, and 10 La. Rep. 219, and many more could be cited.
    The case in 5 La. Rep. 355, which might seem to conflict with the previous decisions, refers in its judgment to an adjudication by the District Court made before, the Code of Practice.

      Mr. Coxe, for the appellee, argued the case orally, and Mr. Mayer filed an elaborate brief. The reporter selects the following, however, from the brief of Mr. Downs, because it enables him to state the points upon that side rather more succinctly.
    ■ The following points are submitted against-the bill,- and to sustain the plea and answer : —
    1.' The District Court of Louisiana has jurisdiction, and was competent, in law to decide such a case, with the consent of the parties, and the judgment so rendered was valid. That court was one of general jurisdiction, extending to “ all civil ” cases above a certain amount. The language is clear and unequivocal : —“ The jurisdiction of District Courts, excepting the court of the first district, extends over all civil cases where the amount in dispute exceeds fifty dollars.” Code of Practice, Art. 125, note 1, and the cases there referred to; Tabor v. Johnson, 3 Martin, N. S. 675 ; Foucher v. Caraby, 6 ib. 550 ; Dangerfield v. Thruston, 8 ib. 241; Donalson v. Rust, 6 Martin, 261; 12 ib. 235.
    The reasoning of the Supreme Court of Louisiana in these cases is much strengthened by a paragraph in the 924th article, defining the jurisdiction of the Courts of Probate, which, it is contended, have exclusive jurisdiction of such cases.- This paragraph, the fifteenth, provides that whenever the parish judge, who is judge of the Court of Probate, is in any way disqualified from trying such cases, f< the District Court or parish judge of the adjoining parish shall have jurisdiction thereof.”

      It may well be doubted whether Courts of Probate have jurisdiction on questions of tort, contract, or fraud and dangers, as in this case. McDonough v. Spraggins, 1 La. Rep. 64; Hurst v. Hyde, 6 ib. 461.
    2. The case was in fact tried by the judge of the Court of Probate, who was called into the District Court for that purpose ; the process, depositions, and all the proceedings were in the Court of Probate up to the moment of trial, when it was by consent of parties transferred to the District Court for the purpose of a trial by jury.
    This case, then, was in fact rather a reference of an intricate and long account to experts or arbitrators, under the provisions of the laws of Louisiana, and their award or finding or report could be objected to or set aside only in the way pointed out by law. Code of Practice, Art. 442, 443, 456.
    But even if the judgment was invalid, and the complainants have a right to demand its nullity, they have no right to demand it in the Circuit Court of the United States. This is not left, in' our system of jurisprudence to general principles or authorities at home, or abroad, but in this, as in many other cases, our legislature, has provided a specific and an appropriate remedy, and declared .the tribunals in which alone it may be sought. Before the promulgation of the Code of Practice, in 1825, there was some doubt and uncertaint}r in the laws of Louisiana on that subject, but it was entirely remioved by the admirable provisions of that code on this subject, under the title of “Nullity of Judgment.” Art. 604 — 613, inclusive. McCombs v. Dunbar, 1 La. Rep. 21; Melanctón v. Brous-sard, 2 ib. 15.
    It seems clear, then, when we apply the principles of these articles and decisions to the case before the. court, ■—
    1. That the judgment in this case is invalidated by none of the nullities which authorize its being set aside.
    The third paragraph of the 606th article does not weaken this position. The judge of the District Court was not incompetent, either from the amount in dispute or from the nature of the cause, as shown in the authorities previously cited under the first head. If a Court of Probate had rendered judgment on a question of title, or contract, or fraud, or tort, being- a court of special and limited jurisdiction, its nullity might have been demanded ; but not so with the District Court, to which the law expressly gives jurisdiction in “ all civil cases.”
    2. But even if there was nullity in the judgment, it might have been demanded in the same court by motion for a new trial or action of nullity, or by appeal to the Supreme Court under the restrictions and within the time provided by law, but could not be demanded in any other . court, especially a court of the United States.
    3. That the complainants cannot maintain this. action of nullity, because they acquiesced in the execution of the judgment for nearly four years before this action was brought, not even asking a new trial, or taking any appeal. Art. 612.
   Mr. Justice DANIEL

delivered the opinion of the court.

Althougn the decree of the Circuit Court is accompanied by no opinion or argument setting out in extenso the grounds .on which the bill of the appellants (the plaintiffs below) was dismissed, yet the foundation of this decree is plainly disclosed by reference to the plea of the defendant below, referred to and sustained by the Circuit Court in its fullest extent. This plea assumes the position that the matters drawn into controversy by the bill had been previously litigated between these parties, and by a court of competent jurisdiction adjudged and settled against the complainants. The insertion of this plea here' is deemed proper, as the character of the proceedings which enter into its averments, and constitute the bar set up thereby, will furnish the readiest key to the exceptions urged against the decree of the Circuit Court. The plea is in the following words: —

In the Circuit Court of the United States for the Fifth Circuit and Eastern District of Louisiana.

E. P. Fourniquet and Wife v. John Perkins.

The plea and answer of the defendant, John Perkins, to the bill of complaint and discovery of the said complainants.

“ This respondent, saving and reserving all benefit, &c., Ac., shows, that, on or about the 15th day of December, 1838, the said' complainants did institute a suit in the Court of Probates in and for the parish of Concordia, in the State of Louisiana, against this respondent, for the same cause of action as is set forth in the said complainants’ bill. That the said suit was duly and regularly transferred for trial and judgment upon all matters in issue therein to the District Court of the ninth judicial district of the State of Louisiana, held in and for the said parish of' Concordia, when and where such proceedings and pleadings were had, and such issue joined, as embraced the whole matters set forth and complained of in and by the said complainants’ bill in this behalf filed and exhibited; and that in the further due and lawful proceedings in said suit, and upon final hearing thereof, judgment was rendered in favor of this defendant, upon all the matters in issue therein; all which will appear by a transcript of the record of the proceedings in the said suit, duly authenticated, which is hereto annexed and. exhibited, and made part hereof,- which said judgment is-final and conclusive between the said parties, as to all the matters of the said complainants’ bill; and this respondent pleads and sets up the same as a full and complete bar to> the said bill, and prays that he may have the benefit thereof as such.”

If this plea be correct in form and true in substance, there can be no doubt-that, the subject now in controversy-having become res adjudicata, the decision of the Circuit Court dismissing the bill of the complainants is vindicated from just exception. But exception is urged to that decisipn upon alleged legal grounds; said to be disclosed on the face of the plea and of the record adduced in its support, and that these being inadequate to sustain the decision, the latter cannot be supported. This is the material point in this cause, requiring, therefore, particular examination.

It is insisted for the appellants, that the proceedings instituted by them in the Probate Court of Concordia against Perkins, for an account of his administration of the successions of Benjamin Bynum and of Mrs. Perkins (formerly Bynum), and for an account of his guardianship of the wife of Fourniquet, as well as to render him liable,for lands, slaves, crops, and moneys belonging to those successions and to the children of Bynum, were the proper proceedings for attaining the object sought thereby, and that no other tribunal in the State of Louisiana than the Probate Court could legally take cognizance of those proceedings; and that the transfer, therefore, of the case in question from the Probáte Court to the District Court of the State, though by the consent expressly given of all the parties, could not confer jurisdiction on the latter, whose decision, consequently, would be void, and could not be pleaded in bar of this suit. Again it is said, that, conceding the power of the District Court to take cognizance of a case like the present, still the proceedings before this latter court and its decision did not embrace the rights and interests of the -parties as set forth in the petition to the Probate Court, but were limited to the single question of the validity of the release-executed.by the complainants to the defendant on the 27th of May, 1834. With regard to this second ground of exception, it may be -remarked, that there».is some want of precision in the record of the District Court, as to the subjects embraced within the issue which seems to have been submitted to the jury by the court; but there is no more reason for supposing that issue to have been limited to the mere fact of the validity of the release mentioned, than there is for extending it to the whole matter in controversy. The petition brought up before the court was the same presented to the Court of Probate, — covered the whole gravamen of the complainants’ case, All their alleged rights and wrongs were embraced within its statements and prayers. This is not understood to have been a suit in equity, nor to have been one not cognizable by a jury. The fair presumption is, that the jury had the entire case before them. No exception to' their cognizance of the whole case seems to have been interposed or. thought,of, and they rendered a general verdict for the defendant, to which verdict no exception was taken. On other grounds it' seems inadmissible to suppose that the case submitted to the jury was limited to some specific fact or inquiry, or that the judgment of the court was necessarily founded upon any such fact .alone. By the consent order transferring the cause from the Probate to the District Court, we find .a very comprehensive arrangement as to the procurement and the forms of the testimony to be used; and in the entry of the judgment upon the record of the District Court we find the language, — “ By reason of the law and the evidence, and the verdict being in favor of the defendant, it is therefore ordered, adjudged, and decreed, that judgment be rendered in favor of thé defendant.” Thus it appears that the mind of the court was directed to the entire case before it, and not merely to an isolated question ; that its judgment has embraced the whole cause as presented upon thé petition, the exceptions, and the answer of the defendant, and although the proceedings which- led to the 'decision may seem to be irregular and anomalous, that decision must stand as a judgment, binding between the parties thereto, unless shown to be void for want of jurisdiction in the tribunal which pronounced it, or that it has been reversed and annulled by some competent supervisory authority. This brings us back,to the inquiry into the competency of the District Court of the State to take cognizance of the subject on which its decision was made.

By Art. 126 of the Code of Practice it is declared that the-jurisdietion of the District Courts extends over all civil causes where the amount in dispute exceeds fifty dollars. The natural import of this provision is to render the District Courts of Louisiana courts of general jurisdiction in all civil causes not embraced within the above .exception. But their powers havé not been left to be now deduced for the first time from the language of the article above cited. They appear to have been defined and established by the supreme judicial authority of the State, and plainly distinguished from the functions of the Probate Courts with reference to subjects'like those involved in the present case. The jurisdiction of the Courts of Probate appears to be confined to cases which seek a settlement and an accounting for effects presumed to be in the possession bf the'representative of a succession, holding those effects in his representative character. Where the pin-pose is to charge the fexecutor or curator personally for fraud, maleadministration, waste, or embezzlement of the succession,, the Court of Probate has not jurisdiction, but in such cases jurisdiction is vested in District Courts. The law appears to have been so ruled in many cases by the Supreme Court of Louisiana. A few of these will be adverted to. Thus, in the case of McDonough v. 'Spraggins, 1 La. Rep. 63, on an appeal from the Court of Probates, the point is thus succinctly stated by Mathews, Justice, in delivering the opinion of the court: — “ This suit was commenced against the defendant in his capacity of curator, to obtain a judgment rendering the succession which he represents liable to pay and satisfy the plaintiffs’ demand, and also to obtain á decree against him personally, on the event of the property being insufficient to pay all just claims , against it, as having illegally administered the succession of the intestate.” ' The Court of Probates decided against the application, and the Supreme Court,, in passing upon that decision, lay down the law in these words: — “As an administrator de son tort, or as an ■intermeddler, he may. be answerable to creditors for waste; ■but those pursuits against him must take place in a court of ordinary jurisdiction.” The next case on this point is that of Bouquette’s Guardian v. Donnet, 2 La. Rep. 193. There Porter, Justice, pronouncing the decision, says, — “ It appears to us this is a demand against the executor in his personal capacity for the value of the property sold by him contrary to law. In other words, for a tort done by him. We think the Probate Court had no jurisdiction of the case, and that the petition must be dismissed, with costs in both courts.” In 6 La. Rep. 449 is thé case of Hurst v. Hyde, Executor, in which it is ruled, that “the Court of Probates has no jurisdiction in an action for damages occasioned by an act of the executor not legally done in relation to the administration of the succession.” The last authority which will be cited to this point is one of later date. It is the decision of the Supreme Court of Louisiana in the case of Hemken v. Ludwig, Curatrix, a decision made in 1845, and reported in 12 Robinson’s Reports, 188, upon an appeal from the Court of Probates of Ouachita. This was a petition brought to subject the curatrix for what, in the legal language of Louisiana, is called a maleadministration of the succession, corresponding with the term waste at the common law. At page 19.1 of the volume, Judge Simon, in- delivering the opinion'of the cohrt, thus states the law : — It is clear, the Court of Probates was without jurisdiction to decide "on the matters set out in the plaintiffs petition in relation to the defendant’s personal liability. It is ¡true she is‘sued as curatrix, hut one of the principal grounds alleged against her from, which she is said ■ to have incurred personal responsibility is, that she has concealed property belonging to the estate and has converted it to her own use, whereby she has lost the benefit of her renunciation, and has become liable, personally, to pay the debts-of her husband. The main object of the suit is to obtain-judgment against her individually, and such was virtually the judgment appealed from. It is not pretended that the property which she failed to include in the inventory is in her possession as curatrix ; but that she claims the same as her own, and refuses to give it up. It is well settled that courts of probate have no jurisdiction óf a claim against an administrator personally for maleadministration.”

That the petition of Fourniquet and wife presented to the Probate Court, and subsequently transferred to the District Court, contained charges of maleadministration cannot be denied. Indeed, with respect to the successions of Mary Bynum, the mother, and Benjamin Bynum, the father, of the petitioner, Harriet, and with respect to the release charged to have been fraudulently abstracted from both the petitioners, it alleged, not merely acts of maleadministration,. but instances of dishoriesty . and spoliation extraordinary in character and extent, and claimed of the defendant, in .consequence thereof, a heavy personal liability for lands, slaves, and money, unjustly, appropriated to . h own purposes. From Art. 126 of the Code of Practice, we have seen that the jurisdiction of the District Courts of Louisiana extends over all civil cases where the amount in dispute is over fifty dollars; in other words, that these courts are courts of general civil jurisdiction. By the authorities cited from the Supreme Court of Louisiana, it is equally apparent. that the Probate Courts are not courts of general, but of special limited jurisdiction; and that from their cognizance are excluded cases of fraud, torts, waste, or maleadministration generally, committed by executors and administrators; and that these cases belong peculiarly to the cognizance of the District Courts. Such being the conclusions warranted by a review of the law, and the facts of this case being , of a character to fall directly and regularly within its operation, it may well be asked what just exception can be taken to the jurisdiction of the District Court in this case ? It was not a jurisdiction depending at all upon consent, which, it is said, cannot invest a court with power not belonging to it by its constitution. It was a transfer of a litigation, by consent, from a tribunal confessedly without authority to decide it, to a tribunal in every respect competent to take cognizance of the subject-matter, — whose peculiar province ■ and duty it was to take cognizance of it. The exception, at the utmost, resolves itself into matter of form, which the parties were competent to waive, and which they did waive; for it is expressly stated upon the .record, that the removal of the cause from the Court of Probate into the District Court was .by the consent of all concerned. It cannot be pretended that the forms of pleading may not be dispensed with by suitors; as it is certain that the benefit of matters both of substance and form may be lost by mere neglect or omission, where no intention of the renunciation of either is apparent or ever existed. We must conclude that the District Court had "rightfully jurisdiction of the cause removed into it from the Probate Court ,* that its judgment is and must be binding upon the parties to it, until it shall be annulled or reversed by a competent authority. The parties to that judgment, the subject-matter thereof, and embraced within the proceedings .on which it was founded, being identical with those comprised in the bill in the Circuit Court of the United States for the Ninth Circuit, now under review, the judgment was well pleaded in bar of the claims set up by the bill, and the decree of the Circuit Court sustaining this plea we hold to be correct, and the same is therefore hereby affirmed.

Order.

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


author: Mr. Justice fCATRON

text:
    James Erwin, Plaintiff in error, v. Alfred J. Lowry, Curator of Alexander McNeill, deceased.
    Where a petition for the seizure and sale of the mortgaged property of a deceased person was filed, in the Circuit Court of the United States for Louisiana, against the executor of that deceased person, which petition" alleged the plaintiff to be a citizen of Tennessee, and the defendant to be a citizen of Louisiana, and the proceedings went on to a sale without any objection to the jurisdiction of the court" being made by the executor upon the ground of residence of parties, it is too late for a curator, appointed in the place of the executor, to raise the objection in a. State court against a purchaser at the sale, and attempt to prove that the Circuit 'Court had no jurisdiction ovc-r the case, because the executor was not a citizen of Louisiana. Evidence dehors the record cannot be introduced to disprove it
    Where a lien existed on property by a special mortgage before-the debtor’s death, afi"d the property passed, with the lien attached, into the hands of an executor, and wa* in the course of administration in the Probate Court, the Circuit Court of the United States had jurisdiction, notwithstanding, to proceed against the property, enforce the creditor’s lien, and decree a sale of the property. And such sale was valid.
    The Circuit Court of the United States, having jurisdiction over the parties and subject-matter, and having issued an order of seizure and sale, the presumption must be, in favor of a purchaser, that the facts which were necessary to be proved in order to confer jurisdiction were proved. No other court can inquire into those facts.
    Although the marshal did not give the notice required by law to the executor against whom the petition was filed, yet, if the executor was served with process on the spot where the property was situated and where the advertisements were posted up, was present at the sale and named one of the appraisers, and requested that the land and negroes should be sold' together, he cannot afterwards impeach the sale because formal steps were not strictly complied with. Nor can the curator who subsequently represented the same estate.
    Where the court below ordered that a sum of money should be paid over by the party in whose' favor they decided to the losing party, the reception of this money by the losing party, before the writ of error was sued'out, will not be a sufficient cause for dismissing the writ of error.
    ■ This case was brought up-from the Supreme Court for the Western District of Louisiana, by a writ of error issued under the 25th section of the Judiciary Act.
    In the beginning of the year 1835, Dawson and Nutt were the owners of some land situated in the parish of Carroll, in the State of Louisiana, on the waters of the Walnut Bayou, amounting to 640 acres, and also of a number of slaves. On the 8th of January, 1835, they sold the land and slaves to Alexander McNeill, of the State of Mississippi, for one hundred and five thousand dollars, payable in five payments; the • first four of twenty-five thousand dollars each, and the last of five thousand. McNeill gave a mortgage upon the land and slaves to secure the last four payments.
    Whether notes were given for all these payments, and when • they were to be made, the record did not show. But by an indorsement, upon the mortgage under date of January 15th, 1838, it appeared that all the payments had been made except the fourth.
    About the 28th of May, .1839, Alexander McNeill died, in Mississippi.
    By his will, which contains several legacies of small value, he bequeathed the mass of his estate to Hector McNeill, also a resident and citizen of Mississippi, whom he appointed his testamentary executor. On the 6th of June, 1839, this executor, stating himself to be a citizen of Coahoma county, in Mississipr pi, presented a petition to the judge of probates of the parish of Madison, in which, after stating that his testator had died oq the date, above stated, in Mississippi, and left, a will, in which he was appointed sole executor and principal legatee, an authenticated copy of which was annexed to the petition, he proceeds to say, that two large estates were in the possession of his testator, situated in this parish.
    He says-further, that, by the laws of Mississippi, as executor of the will, he was bound to present it for probate in Warren county in that State, without delay; but as the court would not sit for some weeks, he could not then' have the will proved and recorded, nor could he then present a duly certified copy of it to be recorded in the said Probate Court of Madison. He says he is “ desirous of taking on himself the succession of his deceased brother’s estate, according to the terms of his last will and téstament, and the laws of the State; he therefore prays that an inventory of all the property in the parish, belonging to the estate of said Alexander McNeill, deceased, be taken.” And he prays the 'judere to grant him. the succession of the deceased Alexander McNeill, according to the terms of the will and the laws of the'State; and that he will grant any other and whatever order may he necessary to entitle him (Hector) to the possession and succession of the property left by the deceased. Upon this petition no. order or judgment was given by the probate judge; but on the 2d of July following, he proceeded to make an inventory of the property composing Alexander McNeill’s succession, which is signed by Hector McNeill, as executor. The will was probated in Warren county, Mississippi, on the 24th of June, 1839, and a copy of it, and the proceedings in the aforesaid court, recorded in the Probate Court of Madison on the 1st of July, 1839, one' day before the taking of the inventory, but no order taken on it, further than to record it.
    By the inventory and appraisement, the whole property of • the deceased in that parish amounted to $> 245,317.
    On the 1st of November, 1839, Hector McNeill presented the following petition: —
    “To the Honorable Richard Charles Downes, Parish Judge in and for the Parish of Madison, State of Louisiana. •

      “ Hector McNeill, heretofore a resident of Warren county, State of Mississippi, respectfully represents to your honor, that he is the owner of large possessions in this parish, consisting ■of plantations, negroes, &c., &c.; that he is desirous of acquiring residence, and to be entitled to the privileges, &c., <fcc., of a resident of this parish; that he is aged thirty-one years; that he is from the State of Mississippi, as aforesaid, and that he desires to pursue planting in this parish, and to reside and make his permanent domicile and home on the Walnut Bayou, parish •of Madison, Louisiana. Wherefore, he prays this notice may be duly filed and recorded.
    (Signed,) H. McNeill.
    “ Walnut Bayou, La., Nov. 1st, 1839.”

      On the 23d of May, 1840, Andrew Erwin filed the following petition in the Circuit Court of the United States: —
    “To the Honorable the Judges of the Circuit Court of the United States for the Ninth Circuit of Louisiana.
    “ The petition of Andrew Erwin, a citizen of the State of Tennessee, therein residing, respectfully shows : — That Hector McNeill, testamentary executor of Alexander McNeill, a citizen of the State of Louisiana, residing in the parish of Madison, within the jurisdiction of this honorable court, is justly indebted to your petitioner in the sum of seventeen thousand five hundred dollars, besides interest on the promissory notes hereto annexed for reference and greater certainty, drawn on the 8th of January, 1835, and payable four years after date, and duly protested when due for want of payment, as. will further appear from the protests thereof hereunto annexed for reference; one of which notes was payable to • the order of Conway R. Nutt, a citizen of the State' of Mississippi, and by him duly indorsed to your petitioner; and the other to Henry S. Dawson, also a citizen of the State of Mississippi, and by him duly indorsed to your petitioner; who avers, that the assignors of said notes could have maintained an action in your honorable court on’ the said notes, against the said Alex-der McNeill, previously to the assignment thereof; that on the "balánce of one of said notes, seven thousand five hundred dollars, interest is due at. the raje of ten per cent, per annum, from the 11th of January, 1839, until paid; and on the balance óf the other, five thousand dollars, interest is due from the same date, llth of January, 1839, until paid, and which, though amicably requested,, the said Alexander McNeill, as well as his testamentary executor, has neglected to pay.
    “Your petitioner further shows, that said, notes were given in purchase of a plantation situated in the parish of Madison aforesaid, and certain slaves; and for securing the payment thereof, the said plantation and slaves were duly mortgaged, as will further appear from a certified copy thereof, hereto annexed to make part and parcel of this present petition, and to which, for greater certainty, your petitioner refers ; and thence your petitioner is entitled to an order of seizure and sale for the payment of the balance aforesaid of seventeen thousand five' hundred dollars, with the interest from the llth of January, 1839, of ten per cent, on the sum of seven thousand five •hundred dollars, and on ten thousand dollars interest at the rate of five per cent, until paid, and the costs of the protests of said notes, ten dollars and fifty cents. Wherefore your petitioner prays that an order of seizure and. sale may issue against the said plantation, and the negroes mentioned and described in the act of sale and mortgage aforesaid, hereunto annexed, to pay and satisfy said sum of seventeen thousand five hundred dollars, with interest as aforesaid, from the 11th of January, 1839, until paid, with $ 10.50 costs of protest, and the costs of suit. And your petitioner prays for all such other and further relief as the nature of - the case may require, and to equity and justice may appertain; and as in duty hound will ever pray your petitioner. (Seventeen thousand and five hundred dollars, besides interest and costs, claimed.)
    (Signed,) Alfred Hennen,

      Attorney for Petitioner.”
    On the day of the filing of the petition, the following order wks issued, viz.: —
    “Inasmuch as the mortgage within mentioned imports a confession of judgment, let an order of seizure and sale issue for the sale of. the property mortgaged, if the sum within claimed is not paid after legal notice.
    (Signed,) P. K. Lawrence, U. S. Judge. “New Orleans, 23d May, 1840.”
    Afterwards, to wit, on the 23d of May, 1840, the following writ of seizure and sale was issued: —
    “ United States of America :

    “ The President of the United States to the Marshal of the East- " ern District of Louisiana, or his lawful deputy, greeting:
    “You are hereby commanded to seize and sell, after legal demand, for cash, the following described property, to wit.” (Then followed a list of the property, namely, land and slaves.)
    • The return of the maishal was as follows: —
    “ Received this order of seizure and sale on the 25th of May, 1840, and on the 29th of' May I delivered the order of court and copy of mortgage issued by the clerk of this court to the defendant; also a copy of a notice of demand, which notice is herewith returned (marked A). On the 1st day of June, I seized the land and fifty-seven slaves, mentioned in this order of seizure and sale, and delivered to said defendant a copy of notice of said seizure, which is also herewith returned (marked B). On the 4th day of June, 1840, I affixed copies of an advertisement (marked O), and herewith filed, to the door of the court-house,the door of the parish judge’s office, and at other places, in the parish of Madison and State of Louisiana, in which the said property is situated, announcing that the said property would he offered for sale on the said' premises, to the highest bidder for cash, on Monday, the 6th day of July, 1840, being full thirty days, exclusive of the day on -which the advertisements were posted up, viz. the 4th day of June, 1840, and the day of sale. On the said 6th day of July, 1840,' I repaired to the premises aforesaid, and after the appraisers', James Brooks and Jesse Couch, duly qualified citizens of Louisiana, selected by the plaintiff and defendant in this case for that purpose, were duly sworn, they proceeded to appraise the said land and forty-four of-the negroes' in this order of seizure and sale, and the same conveyed by deed from the marshal to the purchaser, bearing date the 7th of July, 1840, and of record of this court. Thirteen of the said fifty-seven negroes which were seized by me, proving to be others than those named in this process, were not appraised, neither could the said thirteen be found, as reported by the said appraisers in their report, now filed in the court, and marked D. The said land was appraised at $ 13 per acre; the 640 acres at $ 13, amount § 8,320. The said forty-four negroes were appraised separately and in families, and the amount of the whole when added was $ 15,525, making the aggregate amount for the land and negroes $ 23,845.- After said appraisement was completed, and between the hours of 12 A. M. and 1 P. M., I offered the said land and forty-four negroes for sale ; after making all the declarations required by law, in relation to the nature and description of the same, and after exhibiting and reading, in an audible voice, a certificate of the recorder of'mortgages of the said parish of Madison; and after repeatedly crying the said, property, James Erwin, Esq. bid the sum of $ 16,000, which being the Mghest and last bid, and more than two thirds of the aj>-praisément thereof, the said land and negroes were adjudged to him, and on the 7th of July, 1840, were conveyed by deed, now of record in this court.”
    On the 7th of July, 1840, the marshal executed a deed of the above property to James Erwin, reciting the circumstances attending the public sale.
    On the 23d of March, 1841, the Court of Probate in the parish of Madison, appointed Alfred J. Lowry curator of the vacant succession of Alexander McNeill.
    -On the 16th of August, 1841, Lowry, the curator, filed a petition in the ninth judicial District Court in and for the parish of Madison (State.court). It represented that McNeill, at his death, was the owner of the estate, and that James Erwin had illegally, and by fraud and collusion, taken possession of it. It then prayed for a restoration of the property, and an account of the rents and profits.

      On the 5th of May, 1842, Erwin filed his answer, reciting the abové facts and claiming title under the. sale.
    Evidence having been taken, the District Court, at.December term, 1842, pronounced a judgment in favor of the petitioner/the curator.
    An appeal was taken by Erwin from, this judgment to the Supreme Court of the State, which, in October, 1843, affirmed the judgment of the court below. A writ of error, sued out undér the twenty-fifth section of the Judiciary Act, brought the case up to this court.
    It was argued by Mr. Brent and Mr. Badger, for the plaintiff in error, and Mr. Bradley and Mr. Jones, for the defendant in error.
    The points made by the counsel for the appellant were the following, viz.: — .
    Upon the whole record, it will be contended by the appellant, that the judgment must be reversed.
    1. Because the proceedings .of the Circuit Court of the United States, under which the appellant claims title, disclose a proper case for the jurisdiction of that court, and therefore the regularity or validity of said proceedings cannot be collaterally impeached.
    2. Because the judgment under which the appellant claims, even if rendered upon a record. defective as to the averments proper to give jurisdiction, cannot be thus collaterally impeached.
    3. Because the proceedings under which the' appellant derives title were all regular and bond fide; but if they were otherwise, they cannot be inquired into by the courts of Louisiana.
    4. Because the judgment of the Supreme Court of Louisiana was otherwise ■ erroneous and illegal, and more particularly in decreeing the appellant to be a possessor in bad faith.
    The Reporter was necessarily absent during the argument, and has no notes of it.
   Mr. Justice fCATRON

delivered the opinion of the court;

Alfred J. Lowry sued James. Erwin in the District Court for the ninth district of Louisiana, for a tract of land of about six hundred acres, and forty-four slaves, who were employed in cultivating the land by growing cotton thereon. The property was situate in' the parish of Madison, in that State. The suit was commenced in 1841, by petition, which alleges that about July, 1840, one James Erwin, illegally, and by fraud and collusion, and without any legal title thereto, took possession.of; all the above described property, and is still in possession of the same, has appropriated and wrongfully converted to his own use all the fruits and revenues of said property, and pretends to be the owner thereof, and refuses to deliver to the petitioner the possession. The property was not claimed by Lowry in his own right, but as curator of the estate of Alexander McNeill.

To this petition 'Erwin answered, among other things not within the cognizance of this court, that on the 6th day of July, 1840, he became the pr\ diaser of the property at public auction, at a sale made thereof by the marshal of the llnited States, who sold the same under a judgment, and on a writ of seizure and sale, issued from the Circuit Court of the United States for the Eastern District of Louisiana, in a case wherein Andrew Erwin .was plaintiff, and Hector McNeill, testamentary executor of Alexander McNeill, deceased, was defendant ; and that he paid the sum of sixteen thousand dollars in cash therefor, which was applied to the payment of a debt due by mortgage by the succession of Alexander' McNeill; and he exhibited a copy of' the proceedings on which the sale was founded; and his bill of sale made by the marshal for the land and negroes. These proceedings and the marshal’s deed were given in evidence by the defendant on the trial before the State District Court. A judgment was there given against Erwin, and the property decreed to Lowry as curator; from which Erwin appealed to the Supreme Court of Louisiana, where the • judgment of the District Court was affirmed; and to this judgment Erwin prosecuted a writ of error out .of this court,’'under the twenty-fifth section of the Judiciary Act of 1789, on the .ground that there was drawn in question the validity of án authority exercised under the United States, and that the decision of the Supreme Court of Louisiana was-against its validity. That such was the fact,, and that this court has jurisdiction, is not and cannot be controverted. The judgment ordering the seizure and sale was déclared "void, for several reasons. Such of them as . are subject to our cognizance we will proceed to consider.

The whole proceeding, commencing with the petition of Andrew Erwin demanding a seizure and sale, to James Erwin’s deed from the marshal,, was the exercise of one authority; and the question submitted for our consideration is, whether the marshal’s sale was void on any legal ground; — that is to say, whether the deed by the marshal to James Erwin was void for the reason that it was not supported, by a lawful judgment, or that, for want of a compliance with any legal requirements in conducting the seizure and sale, the deed was void. If void on any one ground, it would be altogether Useless to reverse the judgment because an error had been committed on some other ground; as, on the cause being remanded, the State court would pronounce the deed void a second time on the true ground. This court was compelled so to hold in Collier v. Stanbrough, 6 How. 14.

The deed, in the. casé before us, was held void by the Supreme Court of Louisiana: — First, because Hector McNeill was not a citizen of that State when Andrew Erwin’s petition was filed. This- fact the court ascertained by proof dehors the record. The petition alleges that Andrew Erwin was a citizen of the State of Tennessee, therein residing; and that Hector McNeill was a citizen of the State of Louisiana, residing in the parish of Madison, and within the jurisdiction of the court. On being served witn process, Hector McNeill did not dispute the fact, nor make any defence ; the purchaser found the fact established by the record, nor could it be called in question in a collateral action and disproved, and the purchaser’s title defeated by inferior evidence. On this question the case of McCormick v. Sullivan, 10 Wheaton, 192, is entitled to great weight. There neither party was averred to be a citizen of any State ; and the attempt was made by a second suit to treat the purchaser’s title- as'a nullity, because-of this defect in the proceeding on which the purchase was founded; -but it was held that the purchaser took a good title. In the case nefore us, the record on its face was perfect, and evidence was let in to contradict and to- overthrow it, which we deem to be wholly inadmissible in any collateral proceeding. Hector McNeill was estopped to deny the fact; and so is the present party, his'successor.

The next question decided below was, that the property when it was seized and sold was part .of a succession, and, being in the course of administration in the Probate Court, could not be seized and sold by an execution founded bn a proceeding in another court. This question we declined to decide in the case of Collier v. Stanbrough, and ruled that cause on another ground. That a special mortgage, where no succession has occurred, may be foreclosed by this mode of proceeding, — that is, by an order of seizure and sale in the Circuit Court of the United States held in Louisiana,— we have no doubt. But the question here is, whether jurisdiction' could be exercised over mortgaged property whilst it was in a course of administration. That no jurisdiction existed in the United States Circuit Court was held in the case before us ; and so it had been held by the Supreme Court of Louisiana in previous cases. But in 1847 that court reviewed its previous decisions, in the case of Dupuy v. Bemiss. In the opinion there given, the jurisdiction of the Federal court held in Louisiana is so accurately and cogently set forth, and the relative powers -and duties of the State and Federal judiciaries are so justly appreciated, as to relieve us from all further anxiety and embarrassment on the delicate question of conflict arising in the case, of Collier v. Stanbrough, and again in this cause. It was held in the case of Dupuy v. Bemiss, that, where a lien existed on property by a special mortgage before the debtor’s death, and the property passed by death and succession, with the lien attached, into the hands of a curator, and was in the course of administration in the Probate Court, the Circuit Court of the ■United States had jurisdiction, notwithstanding, to proceed agaiiist the property, and to enforce the creditor’s lien, and to decree a sale of th.e property, and that such sale was valid. We accord to this adjudication our decided approbation-; but take occasion to say, that, had we unfortunately been compelled to decide the question without this aid, our judgment would have been, that the decision of the Supreme Court of Louisiana in the cause under consideration was erroneous. It was, also assumed by the Supreme Court of Louisiana, that no-explanation was given how the notes secured by the mortgage-got into Andrew Erwin’s hands in Tennessee, and that no-transfer of the mortgage was proved to have been made to him ;■ without which, no State judge could have granted an order of seizure and sale without a violation of law.” ' We hold that wherever a judgment is given by a court having jurisdiction of the parties and of the subject-matter, the exercise of jurisdiction warrants the presumption, in favor of a purchaser, that? the facts which were necessary to be proved to confer jurisdiction were proved. It was so held by this court in the case of Grignon’s Lessee v. Astor, 2 How. 319, and to the principles .there laid down we refer for the true rule.. The Circuit Court may have erred in granting the order of seizure and sale, but this does not affect the purchaser’s title.

The Supreme Court of Louisiana next held, that '‘it is well settled in our jurisprudence, that, in forced alienations of property, there must bé a reasonable diligence in, and compliance-with, the forms of the law, under a penalty of nullity. When a party resorts to the summary and more severe remedies-allowed by law, he is then held to a stricter compliance with-every legal formality, and the executory process of seizure and sale may be considered as one of severity. It is obtained ex parte, and all the proceedings under it are to be scrutinized closely. It necessarily follows, that, if the law has not -been-complied with, the property is not transferred, and the purchaser acquires no' title.” This was the doctrine adopted by us in the case of Collier v. Stanbrough, and is no more open to question in the Circuit Court of Louisiana than it is in the State courts of that State; and the question is, h'ow far the marshal complied with the legal formalities in conducting the. seizure and sale. He was bound to give three days’ notice to the debtor before the seizure, if he' resided on the spot, and if he did not, to count in addition a day for every twenty miles between the residence of the debtor and the residence of the judge to whom the petition was presented. (Code of Practice, 735.) The notice was given to Hector McNeill on the 29th day of May, 1840, requiring him to pay within three days ; the property was seized on the 1st day of June; the advertisements were posted up on the 4th of June, and the property sold on the 6th day of July following. The notice was given in the parish of Carroll, about four hundred miles from New Orleans, where the judge resided, so that more than twenty days less than the due time required by law was allowed to the defendant, Hector McNeill, to appear before the judge, obtain an injunction, and make opposition to the proceeding instituted by Andrew Erwin ; and for this reason the sale would be void, if the defendant, McNeill, had not acted in the matter. But the marshal’s returns are required by the practice in Louisiana to show the various steps in the proceedings, and are part of the record on which James Erwin’s title depends; these returns show that McNeill was served with process on the spot where the property was, and where the advertisements were posted. When the sale came on, the marshal returns, that, “ by agreement of the plaintiff and defendant in the suit, that is, Andrew Erwin and Hector McNeill, the following individuals were selected as appraisers, to wit: Jamés Brooks was selected by the plaintiff, and Jesse Couch was selected by the defendant; who, being duly sworn, proceeded to appraise all the property mentioned in the order of seizure and sale; that they appraised the negroes and the. land; that is, each slave separately, and the land separately.” Both land and slaves being immovable property, if two thirds of the. appraised value had not been bid at the sale, a second was necessary by the laws of Louisiana. (Code of Practice, .670, 671, &c.) And by Art. 676, Slaves seized must be appraised, either by the head or by families; and the other effects must be appraised with such minuteness that they may bo sold together or separately, to the best advantage of the debtor, and as he may direct.”

The marshal’s deed to James Erwin recites in general terms all the necessary • steps required to be taken previous to the sale; and, after describing in detail all the property, the deed says, that the marshal proceeded to cry the aforesaid land and negroes to go together, at the request of, the defendant, Hector McNeill;. and that James Erwin became the purchaser, for the sum of. sixteen thousand dollars; being more than two thirds the appraised value, of the land and negroes.” The general principle as respects third persons is, that where one having title stands by and knowingly permits another to purchase and expend, money on land; under the erroneous impression that he is acquiring a good title, and the one who stands by does not make his title known, he shall not afterwards be allowed to set it up against the- purchaser. We understand the decisions in Louisiana to conform to this principle, and that it is applicable there in cases of execution sales; and, as lands and slaves stand on the same footing in Louisiana, the rule applies equally to both.

Testing the sale by this principle; how does it stand ?. The purchaser saw the debtor and the marshal select the appraisers, and saw the appraised value, so that bidders could regulate their bids by it; he heard the debtor order the marshal to sell the plantation and slaves together, and they were so sold. Nor did the debtor make any objection to the sale, but .by his acts and presence sanctioned it; and, therefore it cannot be impeached because formal steps were not strictly complied with.

In our opinion, the order of seizure and sale, and the steps taken in its execution, were such as to support the sale adjudicated to James Erwin by the marshal; but we only adjudge the force and effect of the legal proceeding. As to any other questions involved in the cause (if there be any), this court has no jurisdiction, and consequently leaves them with the State courts.

’ At October term, 1843, the curator, Lowry, had judgment, but the court below ordered, “ that no writ of possession issue in this case to put the plaintiff in possession of the plantation and slaves until he pay the defendant, or deposit in the bands of the sheriff of the parish to the credit of the defendant, $436.55, with interest thereon, at the rate of five per cent, per annum, from the 18th day of March in the year 1843, until the day of payment or deposit.”

In August, 1844, Lowry paid over the money to the sheriff of the parish of Madison; and the sheriff paid it over to Ei win in November, 1844. The writ of error was sued out in May, 1845; and there accompanied the record an assignment of errors. The defendant in error now comes forward, and asks to have the writ of error dismissed on production of a copy, of Erwin’s receipt to the sheriff, on the ground that, by receiving the money, Erwin released the errors complained of.

In the first place, we think the motion comes too late to be . heard; but that if it could he heard, it is no bar. The proceeding was of a mixed character, partaking more of the nature of a proceeding in equity than one at law; and although it can only come here by writ of error, yet this does not change its character. A writ of error in equity proceedings is not peculiar. The twenty-second section of the Judiciary Act of 1789 gave a writ of error in chancery cases, and so the law continued until 1803. (Ch. 40.) And we take the rule to be, that although a decree ,in equity is fully executed, at the instance of the successful party, he cannot complain of his own voluntary acts, if he does perform a condition imposed upon him before he can have the fruits of the decree, although the other party derives a benefit from such performance. If it was otherwise, a writ of error in such a case as the present, or an appeal in equity, might be defeated after the writ of error or appeal was sued out,' where there was no supersedeas; and here there was none.

Five years is the time allowed for prosecuting appeals to •and writs of error out of this court, and in many cases decrees and judgments are executed before any step is taken to bring the case here; yet in no instance within our knowledge has an appeal or writ of error been dismissed on the assumption ■that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed, it is the duty of the inferior court, on the cause being remanded, to restore the parties to their rights.

For the' reasons above stated, we order the judgment of the Supreme Court of Louisiana to be reversed.

Mr. Justice WAYNE and Mr. Justice DANIEL dissented.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court for. the Western District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby reversed, with costs, and that this causg be and the same is hereby remanded to the said Supreme Court, with directions to proceéd therein in conformity to the opinion -of this court.