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Opinion of the Court.

ant's title, as he can maintain no action of ejectment without it. He then certainly must have a right to ask the aid of a court of chancery in his case, either by having the legal title vested in him as against the bargainor and his representatives, or by having the deed set up and established as in all other cases of lost deeds. The complainant may have his decree for either or both of these remedies.”

In Montgomery v. Kerr, 6 Coldwell, 199, the same court sustained a bill and established the complainant's title where a deed of the property had been lost. The decree was that the complainant was entitled, by virtue of and under his deed, to hold the premises in fee simple, and that the defendant had no right, title or interest therein.

In Bohart v. Chamberlain, 99 Missouri, 622, 631, the proof showed that a deed of trust which had been executed by defendant to the plaintiff had been subsequently lost without being recorded. The court on being satisfied of the correctness of the finding of the lower court to this effect, said : “ No doubt is entertained that a court of equity would have jurisdiction to afford the relief prayed for in the petition. One of the most common interpositions of equity is in the case of lost deeds and instruments. A court of equity in case of the loss of an instrument which affects the title or affords a security will direct a reconveyance to be made: citing Stokoe v. Robson, 19 Ves. 385; 1 Story's Equity Jur. secs. 81, 84; Lawrence v. Lawrence, 42 N. H. 109; 1 Mad. Ch. 24; Fonblanque's Equity, ch. 1, sec. 3. And the court added that “under the authorities cited the lower court might have directed a reëxecution of the deed of trust; but, as its powers were flexible, it could accomplish the same object by a declaratory decree, establishing the existence of the deed in question. 2 Pomeroy's Eq. sec. 827; Garrett v. Lynch, 45 Alabama, 204 ; 1 Pomeroy's Eq. secs. 171, 429.”

Many other authorities to the same purport might be cited. They are only illustrative of the remedies afforded by courts of equity to remove difficulties in the way of owners of property using and enjoying it fully, when, from causes beyond their control, such use and enjoyment are obstructed. The

Opinion of the Court.

form of relief will always be adapted to the obstacles to be removed. The flexibility of decrees of a court of equity will enable it to meet every emergency.

Here the embarrassments to the complainants in the use and enjoyment of their property are obvious and insuperable except by relief through that court. No existing rights of the defendants will be impaired by granting what is prayed, and the rights of the complainants will be placed in a condition to be available. The same principle which leads a court of equity upon proper proof to establish by its decree the existence of a lost deed, and thus make it a matter of record, must justify it upon like proof to declare by its decree the validity of a title resting in the recollection of witnesses, and thus make the evidence of the title a matter of record. It is, therefore, Ordered that the decree of the court below be reversed, and

the cause remanded to that court with directions to enter a decree declaring the title of the complainants to the premises described in their complaint, by adverse possession of the parties through whom they claim, to be complete, and that the defendants be enjoined from asserting title to the said premises through their former owner. Each party to pay his own costs.

STELLWAGEN v. TUCKER. Appeal from the Supreme Court of the District of Columbia. No. 217. Argued March 15, 16, 1892. Decided April 11, 1892.

MR. JUSTICE FIELD. The facts of this case are similar to those in No. 216, just decided, and the same principles of law control its disposition. A similar decree of reversal with directions must be entered, the form of the decree to be adapted to the changed interest caused by the death of one of the parties pending the suit.

Ordered accordingly.

Mr. C. J. Hillyer and Mr. J. II. Ralston for appellants.

Mr. Eppa Hunton and Mr. Henry Wise Garnett for appellees.

Statement of the Case.

BRENHAM v. GERMAN AMERICAN BANK. (No. 2.)

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

WESTERN DISTRICT OF TEXAS.

No. 120. Submitted and Decided May 2, 1892.

On a petition for a rehearing the court vacates the judgment ordered in

this case, (ante, 189,) and reverses the judgment, and remands the cause for further proceedings not inconsistent with the opinion, ante, 174.

This was a petition for leave to file a petition for rehearing in the case reported, ante, page 173. Among the causes assigned were the following:

The decision visits with severity your petitioner, who, in perfect good faith, with prudence and care, invested the trust money of its depositors in what at the time of the transaction was universally regarded under the decisions of this court as a form of negotiable security of the safest and best character.

In saying this your petitioner does not mean to be understood as contending that a rehearing ought to be granted because it is a hardship to the defendant to lose the case. Your petitioner deems it a duty as trustee for its depositors to invite the attention of your honors to the fact that by no possible precaution could your petitioner have had warning not to make this investment; that the result is a peculiar one, inasmuch as a settled rule of law is reversed by a divided court, and innocent parties made to suffer. This fact being brought to the court's attention is of cumulative force to induce the court to grant a reargument.

One word as to the order made in this case.

The case is returned to the court below with directions to dismiss the suit and to enter a general judgment for the city of Brenham. Should the court be still of the opinion these bonds are invalid, and their vitality, if there is any, should be destroyed utterly, the consideration at the bottom of them still lives, and the city is liable for the money she raised, notwithstanding the bonds are dead. Little Rock v. National

Syllabus.

Bank, 98 U. S. 308, and cases cited. The complaint in the suit had not the common counts, and was not broad enough to reach this point, and to recover the money received by the city.

Would not the order, if the decision upon the bonds is to stand, be more in accordance with justice, if it allowed the defendant in error to amend the complaint and sue for this money had and received ? Amendments are purely within the discretion of the court in furtherance of justice. The order cuts off the right to apply in the court below to amend, and therefore it is asked here. It can scarcely be said it is just for the city to avoid her bonds and keep the money she has derived from them too. It would seem but just to modify the order, at all events, to this extent.

Mr. A. H. Garland and Mr. H. J. May for petitioner.

PER CURIAM. It is ordered by the court that leave be granted to file a petition for rehearing herein, which being considered,

It is ordered by the court that the judgment entered in this court on the 28th day of March, 1892, be, and the same is hereby, vacated and set aside, and a judgment is now this day entered reversing the judgment of the Circuit Court of the United States for the Western District of Texas, and remanding said cause for further proceedings not inconsistent with the opinion of this court hereinbefore filed, and the petition for rehearing is

Denied.

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No. 1448. Argued March 14, 15, 1892. – Decided April 4, 1892.

The statute of the State of South Carolina, passed March 28, 1876, (acts of

1875-6, p. 198,) is capable of being construed either, when taken by itself, as conferring upon the Coosaw Mining Company the exclusive right of

Statement of the Case.

digging, mining and removing phosphate rocks for an unlimited period, so long as it should comply with the terms of the statute, or, when taken in connection with the act of March 1, 1870, 14 Gen. Stats. So, Car. 381, as conferring such a right only for “the full term of 21 years" named in the latter act; and as the interpretation should be adopted which is most favorable to the State, it is Held, that such exclusive right

expired on the termination of the 21 years named in the act of 1870. Only that which is granted in clear and explicit terms passes by a legislative

grant of property, franchises or privileges in which the government or

the public has an interest. A court of equity has jurisdiction over a bill filed by a State to prevent

illegal interference with its control of the digging, mining and removing phosphate rock and phosphate deposits in the bed of a navigable river within its territories.

The court stated the case as follows:

This suit was brought by the appellees, March 23, 1891, in one of the courts of South Carolina, and, subsequently, on the petition of the appellant, the defendant below, was removed into the Circuit Court of the United States. 45 Fed. Rep. 804. Its object was to obtain a decree enjoining the Coosaw Mining Company, its servants, agents and employés, from claiming any right, title, interest or grant in or to the phosphate rock and phosphatic deposits in Coosaw River in that State; from digging, mining or removing such rock and deposits in the bed of that river; and from obstructing by suit or otherwise any agent or other person, acting by authority of the State Board of Phosphate Commissioners, from digging, mining and removing the same.

The appellant claimed, in its answer, to have a contract with the State by which it acquired an exclusive right for an indefinite period to occupy, dig, mine and remove such rocks and deposits in Coosaw River, and that, in violation of the Constitution of the United States, the obligation of its contract had been impaired by a subsequent act of the legislature.

The decree below, rendered September 16, 1891 - the Chief Justice and Judge Simonton concurring - proceeded upon the ground that the appellant did have, at one time, and for a limited period, a contract with the State, of the kind mentioned, but that such period had expired before the insti.

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