Combs, Bell & Morris, for defendant.

WOODS, J. The bill, stated generally, charges that the defendant was appointed guardian of the complainant by the Probate Court of De Kalb county, Indiana, and that as such guardian, he wrongfully and fraudulently sold real estate of the complainant for less than its value, and afterward, in like manner, procured an order of the court for the investment of the proceeds of the sale in other lands, owned by the defendant, at and for a sum greatly exceeding the value of the land, and thereupon conveyed the land to the plaintiff, and procured the approval of the court to the conveyance, by concealing from the court the fact that the land belonged to the guardian himself; that the guardian had made false and fraudulent reports, and had been guilty of other official delinquencies specified (but which need not be particularized here); and that in October, 1878, the defendant filed with the court his resignation as guardian, concerning which the entry of record made at the time is of the tenor following, to wit: "Which resignation is accepted." plaintiff became of lawful age in December, 1882, and on the next day after attaining his majority executed and tendered to the defendant a reconveyance by quitclaim deed of said land, and demanded an accounting of said guardianship, all of which the defendant refused. The prayer of the bill is "to have the said record and proceedings examined in this court and corrected or revised; annulled, canceled, and set aside;" that the order authorizing such sale may be reviewed and wholly reversed; and that the plaintiff be restored to his rights as if the sale had not been made; and if this cannot be done, "that an account may be taken of the matters and things charged," etc., and for general relief.

That

The objections made to the bill is that it shows a case wherein relief should be sought, and can be granted only in the Circuit Court of De Kalb county, Indiana, the court which is clothed with probate powers, and in which the proceedings complained of were had.

In support of this view, counsel for the defendant insist, and the fact cannot be denied, that the Supreme Court of Indiana has repeatedly decided that the orders of the Probate Courts, whether final or interlocutory, are binding until set aside; that they cannot be attacked collaterally; and that they can be set aside or corrected only in the particular court which made them; that a bill in equity is a collateral attack, and cannot be maintained in any other court. Among the cases cited are Spaulding v. Baldwin, 31 Ind. 376; Barnes v. Bartlett, 47 id. 98; Holland v. State ex rel., 48 id. 391; Sanders v. Loy, 61 id. 298; Parsons v. Milford, 67 id. 489; Briscoe v. Johnson, 73 id. 573; Candy v. Hanmore, 76 id. 125; Jennison v. Hapgood, 7 Pick. 1; Paine v. Slone, 10 id. 75; Negley v. Gard, 20 Ohio, 310; Goodrich v. Thompson, 4 Day, 215; State v. Rolland, 23 Mo. 95; Short v. Johnson, 25 Ill. 489; Iverson v. Loberg, 26 id. 180; Freem. Judg., §§ 319a, 608.

Counsel for the complainant, on the contrary, contend, that notwithstanding the statutes which confer probate jurisdiction upon particular courts, courts of equity continue to have jurisdiction in such cases, and consequently that an original bill of review may be maintained in any court of general equity powers, State or National, which can obtain jurisdiction of the parties; and cite Bond v. Lockwood, 33 Ill. 212; Wickizer v. Cook, 85 id. 68; Fogarty v. Ream, 100 id.

366; Jones & C. Pr. 270, §6; Rorer Jud. Sales, 125, § 317; 2 Story Eq., § 1339.

Whatever may be the rule in and in respect to the State courts, the jurisdiction of the Federal courts, in such cases, if the parties be citizens of different States, seems to have been distinctly declared and upheld.

In Payne v. Hook, 7 Wall. 425, a case wherein the bill sought "to open the settlements with the Probate Court as fraudulent, and to cancel the receipt and transfer from the complainant to the administrator because obtained by false representations," the proposition was advanced "that a Federal court of chancery sitting in Missouri will not enforce demands against an administrator or executor, the State court, having general chancery powers, could not enforce similar demands." In response to this, the Supreme Court, by Davis, J., says: "If this position could be maintained, an important part of the jurisdiction conferred on the Federal courts by the Constitution and laws of Congress would be abrogated. But this objection to the jurisdiction of the Federal tribunals has been heretofore presented to this court and overruled."

"We have repeatedly held that the jurisdiction of the courts of the United States cannot be impaired by the laws of the States which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.' If legal remedies are sometimes modified to suit the changes in the laws of the States, and the practice of their courts, it is not so with equitable. The equity jurisdiction conferred on the Federal courts is the same that the high court of chancery in England possesses; is subject to neither limitation nor restraint by State legislation; and is uniform throughout the different States of the Union. Hgde v. Stone, 20 How. 175; Union Bank v. Jolly's Admrs., 18 id. 503; Suydam v. Broadnax, 14 Pet. 67.' See also Fiske v. Hills, 11 Biss. 294; S. C., 12 Fed. Rep. 372; Cornett v. Williams, 20 Wall. 249.

This bill shows that the complainant is a citizen and resident of Illinois, and the respondent of Indiana, and except in the respect already considered, its sufficiency has not been questioned. The demurrer is therefore overruled..

UNITED STATES SUPREME COURT ABSTRACT.

a transcript of the books and proceedings of the treasury department in account with" the purser whose bond is in suit, and the secretary of the treasury has certified, under the seal of the department, to the official character of the auditor, "and that full faith and credit are due to his official attestations." What more need be done to authenticate the transcript under the seal of the department we are at loss to determine. The certificate of the proper auditor is attached and his certificate attested by the secretary of the treasury under the seal of the department. The form of the certificates and the mode of affixing the seal correspond exactly with what appears in Smith v. United States, 5 Pet. 292, where it was held, more than half a century ago, that the seal affixed in this way was sufficient for the purposes of evidence under a statute, of which section 886 is a re-enactment. The transcript is certified by the auditor, and authenticated under the seal of the treasury department affixed by the secretary, its lawful custodian. The judgment is reversed and the cause remanded, with instructions to set aside the verdict and grant a new trial. United States v. Bell. Opinion by Waite, C. J. [Decided April 21, 1884.]

MARRIAGE-TENANCY BY CURTESY WIFE'S PROP ERTY NOT SUBJECT TO HUSBAND'S DEBTS.-It is the right of a married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage, which shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband. It was the purpose of the statute to abolish this tenancy by the curtesy, or any other interest of the husband, in all her property, and to place her in regard to it in the condition of a feme sole. And it was this same property, and not part of it, no separate interest, or estate in it, which was exempted from liability for his debts. It would be a queer construction of the statute, looking at its manifest purpose, to hold that it meant, though her property shall never come under his control and he shall acquire no interest in it, and it shall never be liable for his debts, the use and possession, the rents and profits of it, may be made liable to his debts as long as he lives. "In the district the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts." We are of opinion that the statute (R. S., Dist. Columbia, § 727) intended to exempt all property, which came to the wife by any other mode than through the husband, from liability to seizure for his debts, without regard to the nature of the interest which the husband may have in it, or the time when it accrued, and that in regard to such debts, created after the passage of the law, no principle of law or morals is violated by the enactment. On the contrary, if we concede, as in the present case, that the husband had acquired a tenancy by the curtesy, in her property, before such enactment, it is eminently wise and just that no other person should afterward acquire such an interest in it as to disturb the joint possession of it, and turn the family resulting from the marriage out, that it may go to pay his debts. The authorities cited by counsel for appellee rather sustain, and certainly do not contradict, this view of the matter. In the case of Rose v. Sanderson, 38 Ill. 247, while the court holds that a statute, very much like the act of Congress relied on here, did not exempt from sale for the husband's debt his life interest in her real estate, which had become vested before the passage of the act, it is apparent, from the record, that the debt for which the writ of

attachment was levied on that interest,existed when the statute of exemption was passed. The case states explicitly that the act went into effect April 24, 1861, and the attachment was levied May 10, 1861, and the husband's right, either by the curtesy or for the wife's life, had vested long before. It might therefore have been held to impair the obligation of the plaintiff's contract if the act had been so construed as to exempt that interest from liability to sale for that debt. In the case of Stehman v. Huber, 21 Penn. St. 260, it was simply held that where, on a partition of an estate in in which the wife was a part owner, the husband advanced a considerable sum as owelty in her behalf, he thereby became interested in the property allotted to her and conveyed to her and to him jointly, and that the husband, by executing a conveyance of this interest to a third person, who conveyed it to the wife, could not thereby defeat the existing creditor's right to appropriate that interest to the payment of his debts. In the case of White v. Hildreth, on the other hand, there came before the Supreme Court of Vermont, for construction, a statute in regard to the debts of the husband very like the act of Congress. It enacted that the rents, issues and profits of the real estate of any married woman, and the interest of her husband in her right in any real estate, which belonged to her before marriage, or which she may have acquired by gift, grant, devise or inheritance during coverture, shall during coverture be exempt from attachment or levy of execution for the sole debts of her husband, * * * provided this act shall not affect any attachment or levy of execution already made. Compiled Stat. of Vt. of 1850, p. 403, § 15. In the case mentioned, 32 Vt. 265, the husband had built upon and improved the land of the wife, after which she rented it to her son, in whose hands the rent was attached by trustee process for the debt of the husband. But the court said: "The legal title to the land, with the supervening improvements and building, is still in the wife. It accrued during coverture. The rent reserved in the lease to her son, is the rent of the land she owns. The statute expressly exempts such rent from the hands of his creditors. This provision of the statute seems to answer what otherwise must have been a well-founded suggestion, viz., that though this money is payable to the wife of the defendant, still it is not the rent of the freehold which the husband held by virtue of the coverture and the birth of issue capable of inheriting, and is in contemplation of law entirely the husband's without invoking the wife as the meritorious cause." Here the court holds distinctly that this statute, which does not profess to abolish the tenancy by the curtesy, is still an answer to an attempt to subject the rents and profits to his debts, because it declares that the property shall be exempt from levy for his debts. Hitz v. Nat. Metropolitan Bank. Opinion by Miller, J. [Decided May 5, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

LACHES-GOVERNMENT NOT CHARGEABLE WITHLIMITATION IN EQUITY-AFTER-ACQUIRED TITLESPECIFIC PERFORMANCE.-Time does not run against the United States, and public policy forbids that the negligence of the officers of an immense government like ours should be held to create laches on the part of the government, except probably as to third persons who are strangers to transactions as to which the negligence may occur. In United States v. Kirkpatrick, 9 Wheat. 720, the Supreme Court say: "The general

*19 Fed. Rep.

terest of our creditors. "This provision authorizes the assignees, in their discretion, to dispose of the assigned property on credit. See Moir v. Brown, 14 Barb. 39; Schufelt v. Abernethy, 2 Duer, 533; Rapalee v. Stewart, 27 N. Y. 311; Hutchinson v. Lord, 1 Wis. 286; Keep v. Sanderson, 2 id. 31. For other authorities see Bur. Assign., § 222. It is a badge of fraud. Carlton v. Baldwin, 22 Tex. 731; and see Bur. Assign., § 221. Such provision is not authorized by law, the said act of 1879 being silent as to the method of disposing of assigned property. The non-consenting creditors being compelled, under the law, to submit to a forced stay of execution until the consenting creditors are paid in full, it follows that a sale on credit, the same not being authorized by law, hinders and delays such non-consenting creditors beyond the sanction of the law and consequently defrauds him. It is urged that the assignee need not sell on credit, and unless he does the creditors are not hurt. This may be true, but the creditors are not obliged to await the event. The assignment placed it in the power and discretion of the assignee to prolong the execution and closing of the trust for an indefinite period. This was not only unauthorized by law, but was against the policy

of the law, for it cannot be denied that the policy of the law is to secure a speedy settlement of the trust and distribution of the assigned property. An assignment in favor of creditors which in effect authorizes the assignee to sell the property conveyed in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms or policy of statute will not be sanctioned. See Jaffray v. McGehee, supra. Cir. Ct., N. D. Texas. Feb., 1884. Opinion by Pardee, C. J.

VIRGINIA SUPREME COURT ABSTRACT.

Held,

EXECUTORS AND ADMINISTRATORS-LIABILITY FOR LOSSES.-(1) Among the assets which came into the hands of an administrator in 1875 were $6,000 of W. & O. Railroad bonds, worth at the time about $4,200, which were paying a good rate of interest. Two of the legatees repeatedly requested that these bonds should not be sold, they and the administrator thinking the bonds were likely to appreciate in value. The administrator held them until 1877, when by the sudden failure of the railroad they became worthless. the administor is not responsible for the loss. (2) Among the assets was a note of the same railroad company for $4,000, secured by a pledge of $8,000 of its bonds. The administrator demanded payment of this note several times, and was each time assured by the president of the road that it should be paid. The road was then paying its interest regularly. By its failure the sum was also lost. Held, that under the circumstances the administrator should not be held responsible for the loss. Without doubt courts of equity have been accustomed from the time of Lord Hardwicke down to the present moment to look with indulgence upon the acts of trustees and other fiduciaries, and have shown a manifest disinclination to hold them personally responsible for losses occurring in the management of the trust funds whenever it has appeared that the trustee or other fiduciary has acted in good faith, in the exercise of a fair discretion, and in the same manner in which he would probably have acted if the subject had been his own property. Ex parte Belchier, Amb. 219; Knight v. Lord Plymouth, 3 Atk. 480; Powell v. Evans, 5 Ves. 839; Thompson Brown, 4 Johns. Ch. 619; Elliott v. Carter, 9 Gratt. 548. And where there are no circumstances of suspicion, such as the failure to make out an inventory, or to have an appraisement of the estate, nor any evi

V.

dence of mala fides on the part of such fiduciaries, I think, to adopt the language of this court in Elliott v. Carter, supra, be "That they should treated with tenderness, and due caution should be taken not to hold them liable upon slight or uncertain grounds." WatSouthall's Admr v. Taylor, 14 Gratt. 274. kins v. Stewart. Opinion by Horton, J. [Decided Dec. 6, 1883.]

EVI

JUDICIAL SALE-JUDGMENT CREDITOR NOT PURCHASER-EQUITIES-RESULTING TRUST-PAROL DENCE.-In Cowardin v. Anderson, 8 Va. L. J. 31, we said: "It is well established by the repeated decisions of this court that a judgment creditor can acquire no better right to his debtor's estate than the latter himself has. The creditor takes the property or applies it to the satisfaction of his lien in subornation to all the equities which exist at the time in favor of third persons, and a court of chancery will limit the lien of the judgment to the actual interest the debtor has. The creditor is in no just sense treated as a purchaser, and has no equity whatever beyond what justly belongs to the debtor. Floyd v. Harding, 28 Gratt. 401; Borst v. Nalle, id. 423; Summers v. Darne, 31 id. 791." It is an established rule in equity that if one person buys an estate with the money of another, and takes the conveyance in his own name, a trust results by presumption of law in favor of him with whose money the purchase was made. And in such cases the trust may be established by parol proof; but to guard against the danger of perjury, and for the security of titles, the proof is required to be clear and distinct. Kane v. O'Conners, 8 Va. L. J. 77; Sugden on Vendors, 443; Bank of U. S. v. Carrington, 7 Leigh, 566; Boyd v. McLean, 1 Johns. Ch. 584; Botsford v. Barr, 2 id. 405; Phelps v. Seely, 22 Gratt. 573; Borst v. Nalle, 28 id. 423; Miller v. Blose, 30 id. 745. And if part only of the purchase money has been advanced the land will be charged pro tanto. Botsford v. Barr, supra; Morey v. Herrick, 18 Peun. St. 129; Kane v. O'Conners, supra. Sinclair v. Sinclair. Opinion by Lewis, J.

NEW JERSEY SUPREME COURT ABSTRACT,* NOVEMBER TERM, 1883.

ALLUVION-TITLE BY-BOUNDARY-AMBIGUITY IN GRANT. The increase of land adjacent to the seashore, derived from alluvial deposits, happening so gradually that the increase could not be observed while actually going on, although a visible increase took place from year to year, belongs to the owner of the land bounded upon the sea. Rex v. Lord Yarborough, 3 B. & C. 91; S. C., in H. of L., 5 Bing. 163; County of St. Clair v. Lovingston, 23 Wall. 46. In grants of lands lying along the seashore, the parties act with knowledge of the variety of changes to which all parts of the shore are subject. The grantee, by such a boundary, takes a freehold that shifts with the changes that take place, and is obliged to accept the situation of his boundary by the gradual changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and as he is without remedy for his loss, so is he entitled to the gain which may arise from alluvial formations, and he will, in such case, hold by the same boundary, including the accumulated soil. Tyler on Bound. 40; Phear on Waters, 12-43; 3 Kent, 435; New Orleans v. United States, 10 Pet. 662--717. A grant of lands with a boundary along storm-tide mark of the Atlantic ocean," will leave in the grantee that space of the beach which lies between the ordinary high water and the fast land, and is washed over by unusual tides so *Appearing in 16 Vroom's (45 N. J. Law) Reports.