Ingraham et al. v. Dawson et al.

The seizure notice to the defendant's attorney and the appraisement were within the legal delays, and the sale, after the return day of the execution, was permissible. (Dorsey v. Carrolton Bank, 5 Am., 237; Rowley v. Kemp, 2 Am., 361.) The inquiry remains, what title did the purchaser take by the sale and conveyance of the sheriff? The purchaser is not bound to look beyond the decree, when executed by a conveyance, if the facts necessary to give the court jurisdiction appear on the face of the proceedings, nor to look further back than the order of the court. If the jurisdiction was improvidently exercised, or in a manner not warranted by the evidence before it, it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the court as an authority emanating from a competent jurisdiction. (10 Pet. S. C. R., 450, 478.) The defendant, Marshall, was a creditor, pursuing what he considered to be his legal right, what the courts had pronounced to be a legal right, to satisfaction for his debt from judgments standing in the name of his debtor upon the records of the court where his suit was commenced. By his purchase, he cancelled his debt against the defendant, and assumed the burden of paying the costs of the suit. I have no evidence of fraud or collusion in the sale, or of any inadequacy of price. But there is evidence that the sale was open and public, and fairly conducted. Nearly a year after, he conveyed to other purchasers. They were required to see the judgment on the records of the District Court, and there was nothing there, except what inspired confidence in the title they undertook to purchase. They saw an absolute and unqualified judgment, rejecting the claim of the assignees of the bank, and condemning the effects attached to sale. They saw no entry to annul or modify that judgment, but, on the contrary, one affirming it in all its parts, with reasons of its propriety, convincing to the highest court of the State.

The questions, whether the attachment had been legally levied, or whether the property seized was a subject for the satisfaction of the attaching creditor's demand, were involved in the issues tried, and the order for an execution of the judg ment was given after a review of all the claims of the bank or its assigns. The subject for sale were judgments on the records of the court that gave the order, and all persons entitled to oppose it were before the court. The purchaser was entitled to make the purchase, with an assurance that his title would be respected.

Nor were the purchasers advised, by any act of the assignees, that there was peril in the act of purchase, or that the sale was a derogation of their rights.

Ingraham et al. v. Dawson et al.

The evidence is satisfactory that the principal assignee was at the sale, and before, and at the time, encouraged purchasers to buy. The assignees were interested in this, for the claim of the attaching creditors was a charge upon the assets that might come to their hands, and its payment was a diminution of the debts they were required to pay.

Three years elapsed from the entry of the unconditional and unexplained order of affirmance of the judgment of the District Court, upon the records of the District Court, before this suit was commenced. No effort was made during that time to harmonize the conflict in the various and discrepant entries in the courts of original and appellate jurisdiction, by direct applications to them.

No effort has been made by the assignees to enforce the judg ments they claim in the court where they were rendered, and which has assumed to dispose of them, nor to correct the irregularities of the officers of which they now complain.

The titles which have been granted under the orders of the court, and the acts of the officers, are impeached in a court of an independent and separate organization, and in a collateral proceeding.

The attempt is made, not by an application to the ordinary jurisdiction of the court, but to its extraordinary powers, powers which do not become active against conscience or public convenience, and when there has not been good faith and reasonable diligence.

My conclusion is, that the plaintiffs have not made such a case as authorizes the interposition of a court of equity for their relief.

The record shows a final judgment of the court of original jurisdiction against their title. That upon their own appeal an erroneous transcript of that judgment was carried to the Supreme Court, and is to be found there with the rest of the case. But that this was not carried to the book of records of the Supreme Court, nor copied into its opinion, nor recited in its final order, nor do the reasons for the judgment in the Supreme Court depend upon its restricted language of the judgment exhibited in the transcript, nor does the decretal order of the Supreme Court recite or relate to it.

But the opinion of the court depends upon a judgment, such as existed on the record of the District Court, and the confirmatory order was addressed to that judgment.

This opinion and this confirmatory order were spread upon the records of the District Court, and form the basis of the executory orders and proceedings. Rights have attached under those proceedings and orders, not only without opposition, but

Ingraham et al. v. Dawson et al.

with the solicitation and consent of the plaintiffs. This court does not feel at liberty to disturb them, by an inquiry into the supposed errors or irregularities which may be found in the various entries and proceedings of the State tribunals.

Bill dismissed with costs.

(Signed)

J. A. CAMPBELL, Assoc. Justice S. C. U. S.

It was argued in this court by Mr. Strawbridge and Mr. Reverdy Johnson for the appellants, and by Mr. Benjamin for the appellees.

Mr. Justice CATRON delivered the opinion of the court. This is a suit, by bill in equity, that was prosecuted in the eastern district of Louisiana, by Ingraham and Read, as assignees in trust of the Grand Gulf Railroad and Banking Company, against Dawson, administrator of Moses Groves, John R. Marshall, and Josiah Stansbrough. The cause was pending in the court below for several years, and in its various details is complicated, but the point presented for our consideration is

a narrow one.

According to the practice in Louisiana, the Circuit Court delivered a carefully-prepared opinion on the final hearing there, setting forth the facts and reasons why that court dismissed the bill. The opinion will be found in the preceding report of this cause. We briefly restate the facts on which our judgment proceeds:

In May, 1841, the Grand Gulf Bank recovered two judg ments against Moses Groves, in the District Court of the parish of Madison, in the State of Louisiana, amounting in the aggregate to more than twenty-two thousand dollars. Groves died without having satisfied those judgments, and the assignees by this bill seek to enforce payment of the debt from the estate of Groves, in the hands of his administrator.

The Grand Gulf Banking Company having failed, in February, 1842, assigned its assets in trust to Ingraham and Lindsay, including the two judgments against Groves. Lindsay afterwards died, and Read is his successor. This is the title relied on by the complainants. The defence set up depends on the validity of a sale of said judgments by legal process against Groves.

Marshall was the owner of a large amount of bank notes put in circulation by the Grand Gulf Company. In June, 1843, he instituted a suit against the bank on these notes, by attaching the judgments the bank had recovered against Groves, (and also judgments against other persons.) The suit was

Ingraham et al. v. Dawson et al.

prosecuted in the District Court of the parish of Madison, in Louisiana. To this proceeding the present complainants, Ingraham and Read, as assignees of the bank, intervened and set up their title by the assignment of the judgments, for the purpose of defeating the attachment of Marshall, and of having their claim as trustees established as the better title. Marshall responded to this allegation of the interveñors, that the deed of assignment was void: first, because it was contrary to the express law of Mississippi, prohibiting such assignments; and secondly, that it was void, because it was made for the purpose of defrauding a portion of the bank's creditors, and in order to favor others. The parties really contesting were Marshall and the intervenors. They went to trial before a jury on the law and facts. The verdict found, first, that the debt was due to Marshall from the bank; and, secondly, (says the record,) "we of the jury find the intervenors in the case have established no evidence of their claim to the property, as set forth in the petition."

The judgment recites that the verdict was in favor of the plaintiff, Marshall, and against the defendants and intervenors; declares the amount due to the plaintiff; adjudges a preference and privilege upon the property, rights, and credits attached; orders them to be sold, according to law, to satisfy the plaintiff's judgment. "And it is further ordered and decreed, that the demand of the intervenors be rejected with costs."

This judgment was affirmed in the Supreme Court of Louisiana on appeal, prosecuted on the part of the bank and the intervenors. The judgment as affirmed was duly entered in the District Court, which proceeded to execute the same.

The bill seems to have been founded on the supposition that the intervention was rejected, and the intervenors nonsuited in the District Court; and that therefore they were not concluded, and at liberty to pursue their claim on the deed of assignment made to them by the Grand Gulf Bank.

The assumption that the intervenors were nonsuited in the State court is founded on a supposed record furnished to the complainants by the clerk of the District Court, which probably might bear this construction; but it appears that no such record exists in that court, and that a copy of a memorandum, kept in a book to refresh the memory of the clerk from which the record signed by the judge was made, is the writing relied on. The memorandum has no value in this cause. The judgment above recited defeated the assignment set up by the complainants in their petition of intervention, and in terms bound the property attached; nor could a court of the United States, in a suit by bill in equity, call in question the informalities, if

Sigerson v. Mathews.

any exist, that may have occurred in executing the judgment of the State court. It was the duty of that court to correct any misconduct or mistake on the part of the sheriff in conducting the sale of the judgments, had complaint been made in time and proper form.

We concur with the Circuit Court, that the bill must be dismissed, and so order.

20h 523 L-ed 1010 23h 486 1b_315

JOHN SIGERSON, PLAINTIFF IN ERROR, v. EDWARD MATHEWS.

Where the endorser of a promissory note, in conversation with the agent of the holder, before its maturity, dispensed with a presentation of the note and demand of payment, and promised to pay it, or provide for its payment, at maturity, he could not, when sued, set up as a defence that the note was not presented for payment, and demand made therefor when it was due, and that no notice of its dishonor was given.

If, after the maturity of the note, the endorser promised the agent of the holder to pay the same, having, at the time of making such promise, knowledge of the fact that the note had not been presented for payment, and no demand made therefor, or notice of non-payment, he could not, when sued, set up as a defence a want of such demand or notice.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing and Mr. Gillet for the plaintiff in error, and by Mr. Blair for the defendant.

The points made by the counsel for the plaintiff in error were the following:

First. The note in question was not an accommodation note, made for the defendant.

The evidence shows that there could be no pretence that the note in question was made for the accommodation of the defendant; but that it was, in fact, a regular business note, taken by defendant on the sale of real estate, without security. And that when, at a subsequent day, the property was re-deeded, and the remainder of the notes given up, the defendant credited this particular note on another debt (account) due him from James Sigerson, the maker. When it was given, and when it was transferred, the defendant must have confidently expected that it would be paid by the maker. When he took back the property, and credited the note to the maker, he clearly relied upon its being paid by the maker, or he would not have given him credit for it until he had actually taken it up, or he have been discharged from it as endorser.