GLENNY v. LANGDON.

20-31

he admits, what cannot be denied,that the entire property of the bankrupt, except what is re- served from the operation of the Bankrupt Act, vests in the assignee by virtue of the instrument of conveyance required to be made as soon as the assigneeis appointed and qualified.

Due conveyance of the kind was made in this case, nor does he attempt to controvert the prop- osition that the assignee is the only party des- ignated by the Bankrupt Act as the proper claim- ant of the bankrupt’s property and estate. The grounds of recovery, as stated in the bill of complaint, are: that, before filing the same, he made application to the assignee to proceed by bill in chancery or other proper mode,or allow his name to be used for the purpose, to subject the said property and rights of the bankrupt, fraudulently concealed and retained, and to con- vert the same into money, to be paid and dis- tributed to the creditors, which he as such as- signee declined and refused to do.

Viewed in the light of those allegations, the theory of the complainant is, that the assignee, inasmuch as he declined to comply with the re- quest and refused either to bring the suit or to allow his name to be used to recover the prop- erty and rights of property of the bankrupt, was guilty of a fraud against the creditors; and that the latter, by virtue of such request and refusal, had a right to seek a remedy in their own names, not only against the bankrupt and the possessor of the concealed property and estate, but also against the assignee, who is deemed to be re- sponsible for the concealed property. Such a remedy, it is conceded,does not grow out of or depend upon the Bankrupt Law; but the argu- ment is, that it is founded upon the enlarged principles of equity which adapt themselves to the exigencies of the case, and enable the court to mold the decree to suit the various equities arising between the parties to the litigation.

Authorities are cited, to prove that the person for whose benefit a trust is executed, who is to be the ultimate receiver of the money, may maintain a suit in equity to have it paid to him- self; and the proposition is advanced, that, where a trustee is guilty of what the law con- siders a breach of trust, in regard to the trust property, the cestud que trust may invoke the aid of equity to give him such remedy in the prem- ises as the circumstances may require.

Grant that, and the concession shows to a demonstration that the present suit cannot be maintained, as the record shows that the com- plainant and respondents are citizens of the same State; andof course the Circuit Court had no jurisdiction of the case, it being conceded by the complainant that the remedy sought does not grow out of or depend upon the Bankrupt Law.

Conceded or not, it is clear that the suit in this case finds no support in the provisions of the Bankrupt Act, as sufficiently appears from the references to that Act already made; but if more be needed, it will be found in the section which provides that no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt until the question of the debtor’s discharge shall have been determined. R. 8., sec. 5106.

Appellate jurisdiction, as exercised under the 22d section of the Judiciary. Act, 1 Stat. at L., 78, is not conferred upon the Circuit Courts in

45

20-31

any case under the Bankrupt Act, where the ruling, order, decision or decree of the Circuit Court is made or rendered by that court in a summary way. All such rulings, orders, decis- ions or decrees must be revised, if at all, under the first clause of the 2d section of that Act, in respect to which the determination of the Circuit Court is final and conclusive. Knight v. Cheney, 5 Nat. Bk. Reg., 818; Morgan v. Thornhill (supra).

Creditors can have no remedy which will reach property fraudulently conveyed, except through the assignee, for two reasons: (1) Be- cause all such property, by the express words of the Bankrupt Act, vests in the assignee by virtue of the adjudication in bankruptcy and of his appointment. (2) Because they cannot sustain any suit against the bankrupt.

Property fraudulently conveyed vests in the assignee, who may recover the same and dis- tribute its proceeds as the Bankrupt Act re- quires. Such a conveyance, says Curtis, is no effectual conveyance as against the interest in- tended to be defrauded, which is represented by the assignee, so far as respects all creditors who prove their claims. They can have no remedy which will reach such property except through the assignee,not only for the reasons al- ready assigned, but because their remedies are absorbed in the great and comprehensive rem- edy under the commission by virtue of which the assignee is to collect and distribute among them the property of their debtor, ‘‘ to which they are justly and legally entitled.” Carr v. Hilton, 1 Curt. (C. C.), 284.

Opposed to that proposition is the case of Franklyn v. Hern,2 Eq. Cas. Abr.,103, in which it was held that, if the assignee refuses to bring a bill that is for the benefit of the bankrupt’s es- tate, the creditor has the right to bring such a bill, under peril of costs.

Enough has been already remarked to show that the Bankrupt Act makes it the express and positive duty of the assignee to collect and dis- tribute all the assets of the bankrupt, including property fraudulently conveyed prior to the de- cree of bankruptcy, and that authority is given to him to sue for the same under the direction and control of the court, which may, in its dis- cretion and for good cause shown, require the assignee by a specific order, to take any proper step to secure the due administration of the Bankrupt Law, and the full and complete pro- tection of the rights of the creditors interested in the proceedings; that ample means are placed in the hands of the creditors to enable them to inform the court of the necessity of any partic- ular proceeding to be taken for that purpose; to which it may be added that the power of the court to compel a compliance with any such order is plenary, and beyond all doubt; or if the assignee fails to do so, to punish him for contempt, or to remove him and appoint an- ron in his place. Bump, Bankruptcy, 10th ed.,

Plenary as the powers granted to the bank- rupt courts are, there is no occasion for any de- parture from them in order to the complete execution of the duties imposed, which of itself is a sufficient reason for holding that the rule laid down in the preceding case is not applica- ble in our bankrupt system. R. S., sec. 5039.

Neither the assignee nor any creditor can have

46

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SUPREME COURT OF THE UNITED STATES.

Oct. TERM,

any greater right under the. Bankrupt Act than the Act itself confers; and if it be conceded that the remedy sought in this case does not depend upon the Bankrupt Act, then it is clear that the court below had no jurisdiction of the case, un- less the proposition can be sustained that such a suit may be maintained in a circuit court, where both parties are citizens of the same State.

Nor is that the only objection to the theory advanced by the complainant; for if one cred- itor may sue in such a case, then all may sue; and the result might be that the proceedings in bankruptcy would be transferred not only to the Circuit Court, but to every state court with- in whose jurisdiction a defendant may reside.

Even if the case referred to, and others of like character, were good law in the courts of the country where they were made, still it is clear that the question before the court must be controlled by the provisions of our Bankrupt Act; but the doctrine of that case has long since been overruled, and is no longer regarded as correct, even in the jurisdiction where it was made, of which there is abundant evidence.

Creditors of an insolvent, said Lord Cotten- ham, cannot maintain a suit to recover the prop- erty or rights which belong to the insolvent, and the same rule applies to suits for a similar ob- ject brought by the insolvent himself. Heath v. Chadwick, 2 Phil., 649.

Prima facie the bankrupt is devested of the whole estate, nor have the creditors any right to sue; but if it be represented that the assignee will not sue, the court having original jurisdic- tion of the matter may direct the recusant as- signee to proceed, or may give the bankrupt or a creditor the right to institute the suit in the name of the assignee, first indemnifying the assignee against costs. Benfield v. Solomons, 9 Ves., 88.

Attempt to maintain such a suit was made in Yewens v. Robinson, 11 Sim., 105; but the as- signees demurred to the bill of complaint, and the court sustained the demurrer, holding that the true method to proceed in such a case was to apply to the court of insolvency to have the aes removed and others appointed in their place.

Application was made to the court in the case of He parte Ryland, and the petitioning creditor was allowed by the court to sue in the name of the assignee, first giving the assignee indemnity against cost and damage. 2 Deac. & C., 393. Corresponding decision was made in the case of Hammond v. Attwood, 8 Madd. Ch., 158, the court holding that the proper course was to ap- ply to the court by petition to have the as- signees removed and new assignees appointed. Major v. Aukiand, 3 Hare, 77.

Bankrupts uncertiticated cannot file a bill of complaint against their assignees for an ac- count; nor can the bankrupt obtain such relief by charging fraud and collusion between the assignees and a third party, the true remedy be- ing a petition for relief to the court of original ju- risdiction. Tarleton v. Hornby, 1 You. & C., 193.

Suffice it to say that the law is now well set- tled in the parent country, that creditors cannot maintain any such suit against the assignee, for the purpose set forth in the present bill of com- plaint.

Strong support to the conclusion is also de- rived from the fact that cases arise in bank-

98 U.S,

ruptcy proceedings where the assignee is not bound to take possession of some particular asset which passed to him by the instrument of assignment. Examples of the kind, such as cer- tain leasehold estates which would burden in- stead of benefiting the fund to be distributed, are given by Judge Ware in the case of Smith v. Gordon, 6 L. R., 317, to which reference is made as showing the principle of the rule.

Leasehold estates pass to the assignee under the English bankrupt laws; but the assignee, in certain cases, is not bound to take the lease of the estate where the rent is greater than the value of the lease, as the effect would be to burden the estate of the bankrupt, and to diminish the fund to be distributed among the creditors. Copeland v. Stephens, 1B. & Ald., 604; Amory v. Lawrence, 3 Cliff., 585; Fowler v. Down, 1 Bos. & P., 44; Webb v. Fou, 7T. R., 897; Wel- kins v. Fry, 1 Meriv., 244.

It has long been a recognized principle of the Bankrupt Law, says Robson, that the assignees

to take property of an onerous or unprofitable character, which would burden instead of bene- fiting the estate; and there are numerous decis- ions, English and American, which support the proposition; nor are the creditors without rem- edy in such a case, even if the assignee should erroneously or unwisely fail to take such pos- session, as the creditors may, by petition, apply to the court of original jurisdiction to compel him to carry out their wishes; and if the District Court should deny their petition, they would have the right to demand a review of the decis- ion by the Circuit Court, under the first clause of the 2d section of the Bankrupt Act. Rob. 3d ed., 398.

Decree affirmed.

Cited—102 U. S., 649; 1 McCrary, 140; 16 N. W. Rep., 584.

GEORGE W. BOWEN, P~f. in Hrr., OF NELSON CHASE.

(See S. C., 8 Otto, 254-266.)

Lands in New York—declarations of persons tn possesston—decision.

lands in New York City in controversy in this ac- tion, was determined by this court in Bowen v. Chase, XXIV., and this court still adheres to its de- cision in that case.

seisin and control of lands, in harmony with a deed which he had executed or authorized and which was against his interest, in reference to property not conveyed or not shown to have been conveyed, are admissible on the question of title.

conflict of evidence in regard to the title, and that it was a matter for the court to determine,this court cannot review its decision or finding on the ques- tion of fact; and as its decision on the law of the case was in conformity with the views of this court in the former case, it is sustained.

No. 2.]

Argued Oct. 15, 16, 1878. Decided Oct. 28, 1878.

N ERROR to the Circuit Court of the Unit- ed States for the Southern District of New York. The case, which arose in the court below, is fully stated by the court.

See 8 Orto.

BoweEN v. CHASE.

254-266

Messrs, Chauncey Shaffer and Merritt E. Sawyer, for plaintiff in error.

Mr. James C. Carter, for defendant in error.

Mr. Justice Bradley delivered the opinion of the court:

This case was before us in an equity suit in October Term, 1876, upon the same general state of facts which is embodied in the present rec- ord. See, Bowen v. Chase, 94 U. §.,812 [XXIV., 184]. The bill in that case was filed after the commencement of this, for the purpose of en- joining this and all other suits brought by the plaintiff in error for the property involved in the controversy. The Circuit Court had decreed a perpetual injunction in reference to the whole property. We sustained that decree as to all the property in New York City except a tract of sixty-five acres on Harlem Heights, as to which it did not seem to us that an injunction was proper. Consequently, the present suit, which was on our docket at the time, on writ of error, was continued for argument.

The case was tried by jury in the Circuit Court, in October Term, 1872, and certain errors are alleged as to the admission and rejection of tes- timony, and as to the charge of the court. In order to understand the bearing of the alleged errors, it is necessary to take a general view of the facts of the case, as they are spread wpon the record in the bill of exceptions.

The action is ejectment brought to recover possession of various parcels of rea] estate in the City of New York, viz. : first, a certain tract of ninety-four acres, situated on Harlem Heights, divided into lots numbered 6, 7, 9, 10, 11, 12, 18, 14 and 15, according to a map of the estate of Leonard Parkinson, made by Charles Loss in 1810; second, a lot of thirty-two acres at Harlem Heights, known as ‘‘ The Homestead,” being part of lot numbered 8 on said map; third, two houses and lots on Seventh Avenue and 41st Street,the claim to which was abandoned by the plaintiff on the trial; and, fourth, two lots at the corner of Broadway and Liberty Streets.

This property was all in possession of one Eliza B. Jumel, known as Madame Jumel, widow of Stephen Jumel, at the time of her de- cease in July, 1865; and has ever since been in the possession of the defendants, Nelson Chase, and his children by his wife Mary Jumel Bownes (or, as she was called, Mary Eliza Jumel), an adopted daughter of Mr. and Madame Jumel, who died in 1848. Their claim to the property is based ona family settlement made by Stephen Jumel in or about 1827, whereby a life estate wassecured to Madame Jumel, with a remainder to Stephen Jumel for life, remainder in fee to the said Mary Jumel Bownes, their adopted daughter. In 1867, the present suit was brought for the recovery of the property by the plaintiff, George W. Bowen, who claims to be an illegiti- mate son of Madame Jumel, born in Providence in 1794, and assuch her heir at law under a stat- ute of the State of New York passed in 1855, by which illegitimate children, in default of lawful issue, are made capable of inheriting from their mother. He contends that Madame Jumel died seised of a descendible estate in the property,and that he, as lawful heir, is entitled to the posses- sion of it. The defendants, on the trial, con- tested both allegations, viz.: that the plaintiff

49

254-266

was the son of Madame Jumel, and that she died seised of a descendible estate. Other issues were raised by the defense, which it is unnecessary now to notice.

Much of the evidence taken at the trial related to the question of the plaintiff’s alleged relation- ship to Madame Jumel, and most of the errors assigned relate to rulings on the admission and rejection. of testimony on that subject. As this branch of the case becomes immaterial, if it be shown (as found by the jury) that Madame Jumel had no descendible estate in the property we will consider the latter question first.

The marriage of Stephen and Madame Jumel took place in New York in April, 1804; and the adoption of Mary Jumel Bownes, who was a niece of Madame Jumel, took place soon after, when the said Mary was a mere child. Mr. Jumel was a French wine-merchant of consid- erable wealth, residing in New York, and after his marriage with Madame Jumel they lived in much style for that day in the lower part of the city.

tt is conceded that the property in question all belonged to Stephen Jumel. It is so stated in the briefs of both parties, and the conveyances by which Stephen Jumel acquired the different parcels were exhibited in proof on the trial. The tract called ‘‘ The Homestead ” was occupied as a country-seat. The tract of sixty-five acres, which is the only one now in question, was an out-lot in the vicinity, partly covered with wood, and was part of the ninety-four acre tract at Harlem Heights first described in the complaint. This tract of sixty-five acres, with another of thirty-nine acres, was conveyed to Stephen Jumel by one Leonard B. Parkinson, by deed bearing date March 9, 1810, a certified copy of which was put in evidence without objection.

It is not pretended that Stephen Jumel parted with the title to any of the property until about the year 1825 or 1827. At or about the latter period, arrangements were made by him or un- der his authority, out of which arises the con- troversy respecting the extent of Madame Jumel’s interest, and which formed the subject of examination, and the ground of decision in the equity suit. The defendants insist that they are equally decisive in this.

It appears from the evidence, that in 1815 the family, consisting of Mr. Jumel and his wife and their adopted daughter, went to France. Madame Jumel returned in the spring of 1817, but her husband and adopted daughter remained for some period longer, the latter being placed at school. The daughter returned after three or four years, and in 1821 she and Madame Ju- mel again went to France, and remained there for several years. The documents in the case show that Madame Jumel was still in Paris as late as the spring of 1826, residing with her hus- band in the Place Venddme. She returned to this country in that or the following year. When in this country she usually resided at the family mansion or homestead on Harlem Heights. Stephen Jumel returned in the summer of 1828, and resided with his family at the mansion house until his death on the 22d of May, 1882.

The history of the property in question dur- ing this period, so far as the documentary evi- dence shows, is substantially as follows:

In January, 1815, before the family left for France, Mr. Jumel conveyed the homestead on 48

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SupPpREME CouRT OF THE UNITED STATES.

Oct. TERM,

Harlem Heights, then consisting of thirty-six acres, toa trustee for the life of Madame Jumel, to hold the same in trust for himself during his own life, and after his death for the benefit of Madame Jumel during her life, and then to con- vey the property back to Mr. Jumel and his heirs. Nothing further seems to have been done in this direction until Madame Jumel’s last visit to France. Whilst she was there,a second settle- ment was made of ‘‘ The Homestead,” by a deed dated in January, 1825, whereby it was conveyed to new trustees, for the separate use and benefit of Madame Jumel in fee. About a year later, in January, 1826, Mr. Jumel conveyed the Lib- erty Street property to a trustee, for the benefit of his wife during her life, subject to a mort- gage of $6,000. On the 15th of May, 1826, probably about the time of her leaving for this country, he gave her a general power of attor- ney, under and by virtue of which several con- veyances were subsequently made in his name. By this power he made his wife his attorney, to transact and manage his affairs at New York or at any place in the State of New York, and in his name and for his use and behalf to sell and convey all or any part of his real estate, and to receive the moneys arising from such sales, and give acquittances for the same.

By virtue of this power, various conveyances were made by Madame Jumel in 1827, by which all the property before referred to, except the sixty-five acres now in question, was conveyed in fee simple absolute to Mary Jumel Bownes, the adopted daughter of Mr. and Madame Ju- mel. These conveyances purport to be sales for valuable consideration expressed therein. Two of them are dated on the thirtieth day of July, 1827, one for the 29 acre lot, No. 6, part of the 94 acre iot, and the other for the 39 acre lot, No. 5; and a third conveyance was executed for the Liberty Street property on the 24th of No- vember, 1827. A fourth conveyance, of ‘‘ The Homestead,” 36 acres, was made on the first of January, 1828. Where the property had been conveyed to trustees, they joined in the convey - ances.

After the first three conveyances had been made to her, Mary Jumel Bownes, in Decem- ber, 1827, conveyed the property therein named to one Michael Werckmeister, in trust; and in May, 1828, she conveyed to him ‘‘ The Home- stead,” also in trust. The trust declared in each case was to the effect, first, that the trustee should, during the lifetime of Madame Jumel, receive the rents and profits and pay them over to her, or at her option permit her to use, occu- py and enjoy the property and receive the rents and profits thereof; second, that he should lease, sell, convey and dispose of the property as Ma- dame Jumel should by writing, executed in the presence of two credible witnesses, order, di- rect, limit or appoint, and in case of an absolute sale, to pay to her the purchase money, or in- vest it as she should order and direct; third, upon her decease, to convey to her heirs at law such of the property as should not have been previously conveyed, and with respect to which no appointment should have been made by Madame Jumel in her lifetime.

The above conveyances to Mary Jumel Bownes, and the deeds of trust made by her to Werckmeister, were all executed before Mr. Ju- mel’s return to this country. On the 2ist of

98 U.S.

1878,

November, 1828, after his return, Madame Ju- mel executed the power of appointment given ‘to her in the trust-deeds, By this instrument, -after reciting the trusts, she directed as follows:

“*Now I, the said Eliza Brown Jumel, do hereby order, direct, limit and appoint, that im- mediately after my decease the said Michael Werckmeister, or his heirs, convey all and sin- gular the said above described premises to such person or persons and to such uses and purposes as I, the said Eliza Brown Jumel, shall, by my last will and testament, under my hand and exe- cuted in the presence of two or more witnesses, designate and appoint, and for want thereof, then that he convey the same to my husband, Stephen Jumel, in case he be living, for and during his natural life, subject to an annuity to be charged thereon, during his said natural life, -of $600, payable to Mary Jumel Bownes, and after the death of my said husband, or in case -he shall not survive me, then, immediately after my own death, to her, the said Mary Jumel Bownes, and her heirs in fee.”

Thus the matter stood until after Mr. Jumel’s death, and after the marriage of Madame Jumel to Aaron Burr, when in 1834, and again in 1842, sshe made ineffectual attempts (in the equity case we held them to be ineffectual) to defeat the ap- pointment she had madein favor of Mary Jumel Bownes (then the wife of Mr. Chase), and to ‘settle the property absolutely upon herself.

The effect of the different conveyances, in- cluding the appointment by Madame Jumel, as determined by us in the equity case, and as we still hold, was to create an estate to the use of Madame Jumel for life, with a power of ap- pointment by deed or will; and with remainder on failure of such appointment to the use of

Stephen Jumel for life, with a final remainder to Mary Jumel Bownesin fee. We further held, that whilst, by the terms and legal effect of this ‘settlement, Madame Jumel had power to revoke her appointment in favor of Mary Jumel Bownes for the purpose of making a bona fide sale of the property, she could not revoke it for purpose of ‘substituting another voluntary appointment. It is evident that the arrangement as finally ‘settled had the approbation of Mr. Jumel. The deeds executed in 1827 may have caused him some anxiety, and may have hastened his return to New York; but the appointment made by Mrs. Jumel after his return evidently had his sanction and approbation. He seems, from the testimony, to have had a sincere attachment to his adopted daughter. The terms on which ‘the family lived during the latter years of his life, as well as after that time, are shown in the “testimony of the defendant; Nelson Chase. He says: ‘‘I knew Stephen Jumel; was living at his house, and was one of his family when che died. He left no child or relation, to my knowledge, in this country. He was a French- man. I married one of his family. I married Mary Jumel Bownes, who was a niece of Ma- dame’s; was married on the 15th of January, 1832, at Judge Crippen’s residence, in Worces- ter, Otsego County. My first knowledge of Madame Jumel was while I was studying law with Judge Crippen, in July, 1831. Madame -came to Worcester, where I was, to see Judge Crippen, bringing with her a young lady whom she introduced as her niece. My acquaintance -with the young lady continued some time, and

‘Bee 8 Oro. U. 8., Boox 25.

Bown v. CHASE.

254-266

until Madame Jumel said to me,I perceive there is a friendship between you and my niece Miss Mary; she added, if I and Mary could agree, she would be happy to have me for a son-in- law; that if we got married she would expect us to come and live with herself and her hus- band on their place; she said that Mary was her adopted daughter, and was to be her heir. Mr. Jumel died May 22, 1832. This lady whom I married died May 5, 1848. Two children of the marriage are living; one daughter, Mrs. Eliza Jumel Pery, was born at the mansion March 25, 1836; one son, William Inglis Chase, was born August 17, 1840. I and my family and my daughter and her family, and my son and his family all live in the Jumel mansion,and we have all lived there ever since Madame Jumel’s death. My wife returned to the man- sion in February next after our marriage, and I followed in the next month, and from that time until the death of Mr. and Madame Jumel I and mine substantially lived with them as one family.”

We have been thus explicit in setting forth the history of the Jumel family, and of the prop- erty in dispute as exhibited by the evidence in the case, because of its bearing upon certain evidence about to be noticed, and upon the final disposition of the cause by the court and jury.

On the trial the defendants contended that, although no deeds or conveyances for that pur- pose could be found, yet that, in fact, the sixty- five acre tract had “passed through the same course of settlement as the rest of the property had done. To show this they offered to prove by one John Caryl, who had lived in service with the family for several years, a certain state- ment and declaration made by Stephen Jumel to the witness in the fall or winter of 1828, whilst Mrs. Jumel and her daughter were on a visit to thesouth. They put to the witness this question :

“ At that time, did Mr. Jumel make any state- ment to you as to the ownership of the property whilst he was thus residing on the premises and you were there working on them under him.”

The question was objected to by the plaint- iff’s counsel, but the objection was overruled and an exception taken.

The witness testified as follows:

“« After Madame Jumel and Mary went south, and while I was living on the place with Mr. Jumel, he stated to me that he had given Mad- ame a power of attorney, not for the purpose that she should dispossess him or disinherit him, but in order that she should do business for him. He said that she sold all the property out of his hands under the power of attorney, and he had nothing left he could call hisown; but he said that they had had a compromise or set- tlement, by which the estate owed him a sup- port as‘long as he lived, and in the end, at his decease and Madame’s, it was to go to Mary, aud with that he was satisfied. In the first place, when he said the property had been sold from under him, I said, ‘Mr. Jumel, I knew that fact. It was done in 1827, last year.’ He then made other remarks, which I have stated. On another occasion, either Christmas Day, 1828, or New Year’s, 1829, he stated to my father in my hear- ing that the property was sold out of his hands, but that Madame had made a settlement, or something to that effect, whereby they were to enjoy the property while they lived, and that

4 49

254-266 SUPREME COURT OF in the end it was to go to Mary, and with that he was satisfied.”

One of the errors assigned by the plaintiff is, the admission of this testimony. As it has an important bearing upon what followed in the disposition of the cause, it is necessary to ex- amine the question raised by this exception. The plaintiff contends that the declarations of Stephen Jumel at that time were not competent evidence in the cause; that they were not against his interest; that he was not in possession of the property; that they were not contempo- raneous with the acts to which they refer; and, if otherwise admissible, they could only be used as evidence against himself, or his privies in blood or estate. But what were the clear facts of the case as they then stood upon the evi- dence? The entire property in question had originally belonged to Stephen Jumel. By him- self or by his family, his servants in charge or his tenants, he had the undisputed possession of the whole of it, at least down to 1825. Their possession was his possession. They had no pretense of possession except through or under him. ‘‘ The Homestead” had been conveyed by him in 1815 to trustees, for the benefit of him- self for life, and after his death for, the benefit of his wife for life. Her interest in it was sub- ordinate to his. In 1825, he made another con- veyance of ‘‘ The Homestead” to trustees, for the separate use of his wife in fee.” She never had any possession, even of this parcel, except through and under him by: a voluntary convey- ance on his part. In 1826, he conveyed the Lib- erty Street property to trustees, for the separate use of his wife for life,remainder to himself and his heirs in fee. All the rest of the property remained in his actual or constructive possession until the conveyances made by virtue of his power of attorney in 1827. These conveyances were all voluntary on his part; and whatever he may have thought or believed, he retained the power of defeating them at any time by a sale to a bona fide purchaser. He returned home in 1828, and resided with his family on the prop- erty which he had thus voluntarily subjected to their use. One tract, the sixty-five acre lot now in question, so far as any evidence had yet appeared in the cause, still remained absolutely in him. It stood as it had always stood, in his possession, seisin, and control. Surely, as to this tract, if not as to the others, he was ina position in which his declarations were admis- sible. It is unnecessary to refer to authorities on this subject. They are discussed in Greenl. Ev., Vol. 1, sec. 109, and in Taylor, Ev., Vol. 2, sec. 617, Declarations contrary to the tenor ot the deeds or documents which he had exe- cuted or authorized would not be admissible, it is true; but declarations in entire harmony therewith, and against his interest in reference to property not conveyed, or not shown to have been conveyed, were clearly admissible. The statement testified to by Caryl was of this sort; and according to this statement, the entire prop- erty had been settled so as to go to his adopted daughter in the end. There was no conflict of evidence on this subject. On the contrary, the conveyances which Madame Jumel procured to be made, after Mr. Jumel’s death, to Hamilton and Philleppon, for the purpose of defeating her own appointment made in 1828, recited the fact that the sixty-five acre tract, as well as the

50

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THe UNITED STATES. Oct. TERM, others, had been conveyed by Mary Jumel Bownes to Werckmeister upon the same trusts as those were. The plaintiff put these deeds. in evidence, and they corroborate Mr. Jumel’s statement. The recitals in those deeds cannot be used against the defendant, it is true; but, as far as they go, they are corroborations, on the plaintiff’s part, of the statement referred to.

We think the evidence was admissible, and that there was no error in receiving it.

This evidence serves to explain what took place at the close of the trial in giving the case to the jury.

After the evidence was closed, the bill of ex- ceptions proceeds to state what occurred, as follows: ‘‘The plaintiff made no claim for the lands on Seventh Avenue, mentioned in the declaration. As to all the other lands men- tioned in the declaration, the defendant’s coun- sel insisted that, on the undisputed facts in evi- dence, the defendant, as a matter of law, was entitled to a verdict, even if the jury should be- lieve that the plaintiff was the heir at law of Eliza B. Jumel. The counsel on both sides agreed that, on this branch of the defense, there was no conflict of.evidence, and that it was a matter for the court to determine.”

The presiding Judge then proceeded to charge the said jury, and after giving them directions as to the other issues in the cause, on the sub- ject in question he directed them to find spe- cially ‘‘That Eliza B. Jumel, at the time of her death, had no estate or interest in the lands claimed, which was descendible to her heirs.” To this charge the plaintiff excepted, and it is assigned for error here.

Now if we lay out of view the declarations of Mr. Jumel, above referred to, there was not a particle of evidence in the case to show, as against the defendants, that the sixty-five acre lot had ever been conveyed by Mr. Jumel, or that Madame Jumel had ever acquired any in- terest therein, except her estate in dower as his widow. There is no evidence of any adverse possession by her under any other claim of title than that which she asserted to the rest of the property. If, therefore, the declarations of Mr. Jumel are to be laid out of view entirely, the charge of the judge was clearly right.

The evidence, however, was admitted, and went to the court and the jury together with the other evidence in the case respecting Mad- ame Jumel’s title to the land in question; and both parties agreed that, on this branch of the defense, there was no conflict of evidence, and tnat it was a matter for the court to determine. Now, they either meant to leave it to the Judge, on the whole evidence in the case, including the declarations of Mr. Jumel, as well as the con- veyances which were produced, to determine the matter as a question of fact, whether Mad- ame Jumel, at the time of her death, had or had not any descendible interest in the prop- erty, or they meant to leave it to him as a ques- tion of law, whether upon the whole evidence as it stood (in which they admitted there was no conflict) she had any such descendible in- terest. If they meant the former, the Judge did determine the question in the only manner in which, by the New York practice, he could do so, by directing the jury to find that she had not such interest. In this view of the case, the decision of the Judge, though given by way of

98 U.S.

a peremptory direction to the jury, was in the nature of a finding of fact made at the request ofthe parties, which we cannot review, any more than we could review the finding of a jury on a question of fact fairly submitted to them.

But if the parties meant to leave the question to the determination of the Judge as matter of law, assuming that the declarations of Mr. Ju- mei were to be received as true (which must have been what they intended when they agreed that there was no conflict in the evidence on that branch of the defense), then we are still of opinion that the decision was right. If it was true, as stated by Jumel, that, under the power of attorney made by him, his wife had sold all the property, but that they had had a compro- mise or settlement, by which the estate owed him a support as long as he lived, and in the end, at his decease and Madame’s, it was to go to Mary—if that statement was true, how could the Judge have decided otherwise than he did? That language, in a will or any other docu- ment, could never be construed to give Madame Jumel a descendible interest. It is in exact conformity with the known facts of the case as evinced by the documents themselves, so far as the documents go.

But there is another aspect of the case as to what the parties meant in their conference with the court, which leads to the same conclusion.

It is to be remembered that at the trial of the cause the entire property was in controversy, and as to most of the parcels there was no ques- tion as to the deeds and conveyances which had passed. The parties undoubtedly desired the opinion of the court upon the legal effect of these conveyances, and it is quite apparent (though not expressly so stated) that when bo sides made the concession or agreement referred to, and requested the court to d j the, question, they assumed or intemded to m that all the property had been limited upo

like trusts and appoi f thls was the decision called for from™jhe Judge was really as to the effect of the trust-deed execut- ed to Werckmeister,and of the several appoint ments made thereunder by Madame Jumel. As in this view of the matter the decision was in couformity with the views of this court in the former case, we hold it to be correct.

In every aspect, therefore, in which this branch of the case may be viewed, we think that no error was committed by the court below.

The disposal of this question determines the cause. The other errors assigned become en- tirely immaterial, if Madame Jumel had no de- scendible interest in the property for the plaint- iff to inherit.

Judgment affirmed.

AMOS D. WILLIAMS, Appt.,

JOHNSON HAGOOD, Substituted for THOM- AS C. DUNN, ComMprroLLeR-GENKRAL OF Sourn Carotina, WILLIAM GURNEY,

County TREASURER OF CHARLESTON CoUN- TY, ET AL. (See 8. C., 8 Otto, 72-75.)

Want of equity. See 8 OrrTo.

WixtraMs v. HAGoop.

72-75

Where the question presented to the court by a bill in equity is merely anabstract one, and the bill shows no equity in the complainant, it must be dis-

missed. [No. 26. ] Argued Oct. 21, 22, 1878. Decided Nov. 4, 1878.

PPEAL from the Circuit Court of the Unit-

ed States for the District of South Carolina.

The case, which arose in the court below, is fully stated in the opinion.

Messrs. Dennis McMahon, A. G. Magrath, D. T. Corbin, Jas. Lowndes and J. K. Herbert, for appellant.

Messrs. Leroy F. Youmans, Atty-Gen., of S. O., and James Conner, for appellees.

Mr, Justice Strong delivered the opinion of the court:

This is a bill in equity against the Comp- troller-General of the State of South Carolina, the County Treasurer of Charleston County, in said State, and the assignees in bankruptcy of the Blue Ridge Railroad Company, in which the relief sought is an injunction commanding the Comptroller ‘‘to cease from refusing to levy a tax for retiring” certain certificates of the state indebtedness, and commanding the County Treasurer ‘‘to cease from refusing to receive the same for taxes and dues to the State, except to pay interest on the public debt.”

The facts of the case, so far as they are ex- hibited by the bill and so far as they are ma- terial for present consideration, are as follows:

By an Act of the Legislature of the State, en- acted March 2, 1872, recite ih its preamble that, in pursuance of ‘mer Act, the guaranty faith it of the State had been in- orsed: on-#$ ,000 of bonds issued by the Blog AD ailroad Company, and that it was ale recover and destroy the bonds issued, and relieve the State from the liability incurred by its indorsement and guaranty thereof, the State Treasurer was directed, with the written consent of the railroad company, to require the financial agent of the State to deliver to him for cancellation all the bonds of the company in- dorsed and guarantied as aforesaid, then in the agent’s possession and held by him as collateral security for advances.

The 2d section of the Act enacted that, upon the surrender by the company to the State Treas- ury of the balance of the said $4,000,000 of bonds thus guarantied by the State, the State Treasurer should be authorized and required to deliver to the president of the railroad company treasury certificates of indebtedness (styled rev- enue bond scrip) to the amount of $1,800,000, executed in a manner directed afterwards in the Act. And if the company should not be able to deliver all of said bonds at one time, the Act re- quired the treasurer to deliver to the said pres- ident such amount of the treasury certificates as should be proportioned to the amount of bonds delivered.

The 8d section made it the duty of the State Treasurer, in order to carry out the purposes of the Act, to have treasury certificates of indebt- edness prepared, to be known and designated as “Revenue Bond Scrip of the State of South Carolina,’ which should be signed by the Treas- urer, and which should express that the sum

mentioned therein is due by the State of South

Carolina to the bearer thereof, and that the ol

85-98

same would be received in payment of taxes and all other dues to the State, except special tax levied to pay interest on the public debt.

The 4th section pledged the faith and funds of the State for the ultimate redemption of the scrip, and required county treasurers to receive it in payment of all taxes levied by the State, except in payment of special tax levied to pay interest on the public debt. It also required the State Treasurer and all other public officers to receive the same in payment of all dues to the State; and, still further to provide for its re- demption, the section levied an annual tax of three mills on the dollar in addition to all other taxes on the assessed value of all taxable prop- erty in the State, to be collected in the same manner and at the same time as might be pro- vided by law for the levy and collection of the regular annual taxes of the State. And the State Treasurer was required to retire, at the end of each year from their date, one fourth of the amount of the treasury scrip authorized to be issued, and to apply to such purpose exclu- sively the taxes by the Act required to be levied.

The 6th section required the guarantied bonds to be canceled and destroyed on their delivery to the treasurer.

In obedience to this Act, the revenue bond scrip was prepared and signed by the State Treasurer. When this was done, a large part of the $4,000,000 of bonds of the railroad com- pany, indorsed and guarantied by the State, had been sold or were pledged as securities for mon- ey borrowed by the company. The complain- ant was a purchaser for value of $417;000 there- of, and he was the bona fide owner and holder of them when the Act of March 2, 1872, was passed. Relying upon the faith of the State as pledged in the said Act of its Legislature, and in the said certificates of indebtedness, he consented to exchange the bonds, amounting to $417,000, for said treasury certificates, amounting to $166,000; and the exchange was made. His bonds, guarantied as above stated, were deliv- ered to the State Treasurer, and they have been canceled. The railroad company and the State have thus been discharged from all obligation to pay the bonds, and the complainant holds in lieu thereof only the certificates of indebted- ness to the extent of $166,000.

After this exchange had been effected, the bill charges, and it appears, that the State, in various ways, legislated in such a manner as practically to deny the obligation apparently as sumed in the certificates of indebtedness, or revenue bond scrip. By an Act approved Oc- tober 22, 1878, the Legislature repealed the 4th section of the Act of March 2, 1872, by whicha tax was levied for the redemption of the scrip, and forbade the Comptroller-General to levy any tax, for any purpose, unless expressly there- after authorized therefor. By another Act, ap- proved December 22, 1873, the county auditors and county treasurers of the State were forbid- den to collect, or cause to be collected, any tax other than such as were levied by that Act,unless _ expressly authorized thereafter so todo. The leg- islation was manifestly inconsistent with the un- dertaking of the State expressed in the Act of March 2, 1872, and in the revenue bond scrip is- sued thereunder, and its constitutionality and obligatory force would be a legitimate subject for consideration if the complainant had placed 52

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SUPREME CouRT OF THE UNITED STATES.

Oct. TERM,

himself in a position to invoke our judgment. But he has not. His bill does not aver that he has been injured, or will be injured, by this leg- islation, or by any act or neglect of the Comp- troller.-General or, the County Treasurer. It does not aver that the Comptroller-General has neglected or refused to perform every duty im- posed upon him by the statute under which the revenue bond scrip was issued, nor even that he threatens such neglect or refusal. It does not aver that the County Treasurer has refused, or even threatened to refuse, receiving the com- plainant’s scrip, or any scrip, in payment of taxes or dues to the State, other than taxes lev- ied to pay the interest on the state debt. It does not aver any demand from the state treasury, or any tender to the County Treasurer. Its object is plainly to obtain from this court a declaration that the legislative Acts of October 22 and De- cember 22, 1873, are unconstitutional, because impairing the obligation of the contract made by the Act of 1872, and the certificates thereby authorized and thereunder issued, and this with- out any averment that the complainant will be injured by them. The question presented to the court 1s, therefore, merely an abstract one; such an one as no court can be called upon to decide, and the bill shows no equity in the com- plainant. Hence it was properly dismissed in the court below, and it must be dismissed here, but without prejudice to the complainant’s right to bring and prosecute another suit, when he shall be in a condition to exhibit any equity in himself. It is so ordered.