7 How. 132-160

Notes on U. S. Reports.

7 How. 132–160, 12 L. 637, PATTON v. TAYLOR.

692

Appeal and error.— Evidence on issues not raised by the pleadings involved at the hearing, will not be considered by the appellate court, pp. 158, 159.

Cited and rule applied in Baker v. Nachtrieb, 19 How. 130, 15 L. 531, refusing to consider evidence of facts not pleaded.

Vendor and purchaser.- A purchaser in the undisturbed possession of the land, in the absence of fraud and misrepresentation, must seek his remedy for defects of title, in an action at law, on the covenants of his deed, p. 159.

Cited and rule applied in Van Rensselaer v. Kearney et al., 11 How. 322, 13 L. 714, collecting cases and holding one in privity with grantor estopped from denying recitals in a deed; Refeld v. Woodfolk, 22 How. 328, 16 L. 375, holding order sequestrating vendor's property as security for defects of title erroneous; Noonan v. Lee, 2 Black, 508, 17 L. 281, collecting cases and holding that vendee cannot avoid payment of purchase money on pretense of defects of title; Peters v. Bowman, 98 U. S. 60, 25 L. 92, collecting cases and holding that on suit for purchase money, vendee in possession cannot dispute vendor's title; Alger v. Anderson, 92 Fed. 713, holding defect in title not ground for rescission; Campbell v. Medbury, 5 Biss. 34, F. C. 2,365, holding that the collection of the purchase money cannot be restrained on ground of defect of title; Union, etc., R. R. Co. v. Barnes, 64 Fed. 84, 27 U. S. App. 421, holding that action will not lie to recover purchase money for mere defects of title; Hoppes v. Cheek, 21 Ark. 589, collecting cases and holding decree staying collection of purchase money erroneous; Reynolds v. Shaver, 59 Ark. 303, 43 Am. St. Rep. 38, 27 S. W. 79, holding general covenant of warranty applies only to right and interest conveyed by deed; Randall v. Bourguarden, 23 Fla. 266, 11 Am. St. Rep. 380, 2 So. 311, and Barry v. Guild, 126 Ill. 445, 18 N. E. 760, 2 L. R. A. 335, and n., both holding defect in title no defense to a suit to foreclose mortgage; Strong v. Downing, 34 Ind. 303, refusing to enjoin collection of purchase money in absence of fraud; Hart v. Hannibal, etc., R. R. Co., 65 Mo. 510, holding decree of Circuit Court rescinding executed contract of sale of land erroneous; Hill v. Butler, 6 Ohio St. 217, collecting cases and holding recovery of purchase money will not be enjoined for defects of title; Decker v. Schultz et al., 11 Wash. 56, 48 Am. St. Rep. 865, 39 Pac. 264, 27 L. R. A. 338, collecting and reviewing cases and holding an executed contract of sale will not be rescinded for failure of title. See valuable note on this subject in 7 Am. Dec. 558. Cited in discussion, obiter, in Jourolmon v. Ewing, 80 Fed. 610, 47 U. S. App. 679.

Distinguished in Fehrle v. Turner, 77 Ind. 535, holding suit for purchase money will be enjoined pending another suit to determine title.

Equity pleading. To entitle one to relief on the ground of fraud, it must be made a distinct allegation in the bill, p. 159.

Cited and applied in Bartol v. Walton, 92 Fed. 14, refusing to rescind subscription to stock of corporation where facts of fraud not shown; Hart v. Hannibal, etc., R. R. Co., 65 Mo. 510, holding court of equity had no authority to rescind executed contract of sale. See valuable note in 90 Am. Dec. 298.

Evidence of attorney held admissible where he was security for costs only, and a mere naked trustee, and he was not a party in interest, p. 160.

7 How. 160-172, 12 L. 650, FOURNIQUET v. PERKINS.

General verdict.-In absence of exceptions to a general verdict, it is presumed that the jury passed upon the whole case made by the pleadings, p. 169.

Louisiana District Courts have jurisdiction of all civil cases where the amount in dispute exceeds $50, p. 169.

Cited and followed in Dow v. Johnson, 100 U. S. 182, 25 L. 641, sustaining suit against officer of United States army for trespass.

Louisiana Probate Courts' Jurisdiction is confined to cases in which a settlement and an accounting of the effects of the testator are asked, pp. 169, 170.

Cited and followed in Clark v. Shelton, 16 Ark. 481, holding probate decree settling account does not preclude right to sue in chancery for fraud.

Jurisdiction.- While it cannot be conferred by consent, parties may waive matters of mere form, pp. 171, 172.

Distinguished in Hoover v. York, 30 La. Ann. 756, holding, where court had jurisdiction, not error to refuse to transfer cause.

Judgment of a court of competent jurisdiction is binding upon the parties to it until annulled or reversed by a competent authority, although the proceedings leading to it may seem to be irregular, pp. 169, 172.

Cited and followed in Fourniquet v. Perkins, 16 How. 85, 14 L. 855, same case, approving action of lower court dismissing bill to conform with decisions of Supreme Court; Bush v. Glover, 47 Ala. 174, holding judgment binding though service of process defective and irregular.

7 How. 172-184, 12 L. 655, ERWIN v. LOWRY.

Supreme Court has jurisdiction, under the twenty-fifth section of the judiciary act, over questions arising in the State courts, involving the validity of an authority exercised under the United States,

7 How. 172-184

Notes on U. S. Reports.

694

and the decision of the State court of last resort is against such validity, p. 179.

Appeal and error.- Where a judgment has been rendered in a State court pronouncing a seizure and sale on execution by Federal authorities void on a particular ground, such judgment will not be reversed, if such seizure and sale are void on any other ground, pp. 179, 180.

Cited and approved in Crescent City Live Stock, etc., Co. v. Butchers' Union, 120 U. S. 157, 30 L. 620, 7 S. Ct. 480, holding judgment of State court not reversed when Federal question not necessary to its decision; Henderson v. Merchants, etc., Ins. Co., 25 La. Ann. 347, colecting cases and holding writ of error will not be granted where Federal question not necessary to decision.

Circuit Court judgment.—Where the record of Circuit Court shows necessary jurisdictional facts of citizenship, evidence is wholly inadmissible in any collateral proceeding to contradict it, p. 180.

Cited and followed in Holmes v. Oregon, etc., R. R. Co., 7 Sawy. 392, 400, 9 Fed. 237, 244, holding question of inhabitancy not open to collateral attack; People v. Dowell, 25 Mich. 271, holding decree of divorce not open to collateral attack by showing non-residence of parties; Pearce v. Winter Iron Works, 32 Ala. 72, and Tzschuck v. Mead, 47 Neb. 267, 66 N. W. 430, both holding judgment not open to collateral attack on ground of lack of citizenship. Cited, arguendo, in Draper v. Springport, 21 Blatchf. 243, 15 Fed. 331, holding separate pleas in abatement no longer exist.

Denied in Pasteur v. Lewis, 39 La. Ann. 8, 1 So. 309, holding that jurisdictional facts can be inquired into collaterally.

Circuit Court. Although property, subject to a mortgage, passes into the hands of a curator and is in the due course of administration in the Probate Court, Circuit Court has jurisdiction to proceed against and decree a sale of such property, p. 181.

Cited and followed in Andrews v. Smith, 19 Blatchf. 108, 5 Fed. 841, reviewing cases and holding action against trustees in State court not a bar to Federal suit; Griswold v. Central, etc., R. R. Co., 20 Blatchf. 216, 9 Fed. 799, and German, etc., Soc. v. Cannon, 65 Fed. 544, 545, both holding State probate proceedings no bar to action in Federal court; East, etc., R. R. v. Atlantic, etc., R. R., 49 Fed. 611, 15 L. R. A. 110, holding Circuit Court had jurisdiction to appoint receiver during pendency of action in State courts.

Distinguished in Peale v. Phipps, 14 How. 375, 14 L. 462, holding Circuit Court without authority to compel trustee appointed by State court to pay claims; Haines v. Carpenter, 1 Woods, 270, F. C. 5,905, holding that Circuit Court had no power to remove administrator appointed by State court; Hutchinson v. Green, 6 Fed. 838, 2 Mc

Creary, 476, holding Federal court will not enjoin assignee appointed by State court.

Circuit Court having jurisdiction over the parties and subjectmatter, the exercise of its jurisdiction in ordering a seizure and sale, warrants the presumption in favor of purchaser that all necessary facts were proved, p. 181.

Cited and followed in Miller v. United States, 11 Wall. 301, 20 L. 143, presuming that before entry of decree necessary findings were made; Davis v. Gaines, 104 U. S. 392, 26 L. 760, collecting cases and upholding probate sale under prior will, after second will is probated; Galpin v. Page, 1 Sawy. 325, F. C. 5,205, collecting cases and presuming regularity of service of process upon collateral attack; Landon v. Comet, 62 Mich. 92, 28 N. W. 793, collecting cases and presuming circuit judge sitting properly as probate judge; Thornton v. Baker, 15 R. I. 555, 2 Am. St. Rep. 927, 10 Atl. 618, presuming court, in hearing probate of will, found jurisdictional facts.

Judicial sales. In forced alienations of property there must be a strict compliance with the forms of law, under penalty of nullity, p. 181.

Cited and followed in Laraby v. Reid, 3 G. Greene, 420, holding tax collector's deed must show conformity with statute.

Judicial sales. Under laws of Louisiana, at an execution sale, if two-thirds of the appraised value of the property is not bid, a second sale is necessary, p. 182.

Cited in Sprott v. Reid, 3 G. Greene, 497, 56 Am. Dec. 556, collecting cases and holding prohibition against selling property at less than two-thirds value, mandatory.

Estoppel.- Where one having title to property stands by and knowingly permits another to expend money on the land under the erroneous impression that he is acquiring a good title without making his title known, he cannot afterwards set it up against such purchaser, p. 183.

Cited and followed in Muse v. Arlington Hotel, 68 Fed. 651, holding grantee of alleged Spanish grant estopped from asserting title; Campbell v. Woodstock Iron Co., 83 Ala. 359, 3 So. 371, holding sale of stock, without objection, cut off complainant's equity of redemption; Parson v. Henry, 43 La. Ann. 310, 8 So. 919, holding former owner of property estopped from claiming nullity of sale.

Appeal on writ of error will not be dismissed on the assumption that a release of errors was implied from the fact that money or property changed hands by force of the judgment or decree, p. 183.

Cited and followed in O'Hara v. McConnell, 93 U. S. 154, 23 L. 843, holding deed made by order of court will not affect right of appeal; Burrows v. Mickle, 22 Fla. 574, 1 Am. St. Rep. 218, collecting

7 How. 185-198

Notes on U. S. Reports.

696

cases and holding satisfaction of judgment no waiver of right to appeal; Morriss v. Garland, 78 Va. 235. holding acceptance by plaintiff of satisfaction of decree not a waiver of right to appeal. See valuable notes on this subject in 13 Am. Dec. 550, and 45 Am. St. Rep. 271.

Denied in Dunham v. Randall, 11 Tex. Civ. App. 267, 32 S. W. 720, holding acceptance of amount awarded by judgment waives the right of appeal.

Appeal and error.- Where property has changed hands by force of judgment or decree, it is the duty of the inferior court, on the cause being remanded, to restore the parties to their rights, p. 184. Cited and followed in Morris v. Garland, 78 Va. 229, holding, where judgment is reversed, lower court will direct the restitution of property.

Miscellaneous.- Cited, incidentally, in Lowry v. Erwin, 5 La. Ann. 207, a case involving same parties.

7 How. 185-198, 12 L. 660, UNITED STATES v. CHICAGO.

Injunction. Whether preliminary injunction is a matter of discretion merely, rather than of right, query, p. 191.

Cited in dissenting opinion, arguendo, in Tiffany v. Glover, 3 G. Greene (Iowa), 402, majority holding Iowa District Courts are of limited jurisdiction.

Appellate court will not decide questions unnecessary to determination of appeal, p. 191.

Certificate of division may include not only matter arising in the progress of a cause, but also any material question of right arising, whether the subject on hearing was one of discretion or of right, p. 191.

Cited and followed in Bagg v. Detroit, 5 Mich. 69, holding law questions may arise and be certified in chancery cases; State v. Crocker, 5 Wyo. 398, 40 Pac. 684, collecting cases and holding that the statute authorizing a reservation of questions is constitutional. Cited, with approval, in Bagg v. Detroit, 5 Mich. 70, holding, unless questions are new, or of great importance, they must not be certified pro forma.

Questioned in United States v. Rosenburgh, 7 Wall. 582, 19 L. 263, dismissing certified question on motion to quash indictment.

Certificate of division.— Several questions, so material as to decide the whole case, may not generally be certified, but, where the questions require an opinion virtually on one point, it is no ground for objection that that point is so vital that its decision will cover the whole case, p. 192.

Cited, arguendo, in Daniels v. Railroad Co., 3 Wall. 255, 18 L. 225, dismissing appeal where whole case was taken up.