If the Orphans' Court of Mississippi, whose jurisdiction attaches on the ascertained insolvency of an estate, is saved from the interference of another court, surely the Probate Court of Arkansas, vested with jurisdiction on the death of the testator or intestate, whether the estate be solvent or insolvent, is entitled to equal protection.

he could not do by suing in the State Court, | 107. In Mississippi the Orphans' Court has juthat the whole estate, in case there were foreign risdiction only over the estate of a deceased creditors, might be swept away. Such a result person in case it turns out to be insolvent, when would place the judgments of the Federal Court it audits the claims against the estate, directs on a higher grade than the judgments of the the sale of the property, and distributes the State Court, necessarily produce conflict, and proceeds equally among all the creditors. Berender the State powerless in a matter over fore the adjudication of insolvency by the Orwhich she has confessedly full control. Besides phans' Court, Benedict had obtained a judg this it would give to the contract of a foreign ment against Williams, the administrator of one creditor made in Arkansas a wider scope than Baldwin, in the District Court for the Northa similar contract made in the same State by ern District of Mississippi, and levied an executhe same debtor with a home creditor. The tion on property upon which the judgment home creditor would have to await the due would have been a lien if the estate had not been course of administration for the payment of his insolvent. On a bill filed by the administradebt, while the foreign creditor could, as soon tor to enjoin the execution, it was insisted, as he got his judgment, seize and sell the es- among other things, that the proceedings in the tate of his debtor to satisfy it, and this, too, Orphans' Court were no bar to the proceedings when the laws of the State in force when both in the United States Court, and so the district contracts were made provided another mode judge thought, but this court held otherwise, for the compulsory payment of the debt. Such and decided that the jurisdiction of the Ora difference is manifestly unjust and cannot be phans' Court had attached to the assets; that supported. There is no question here about the they were in gremio legis, and could not be regulation of process by the State to the injury seized by process from another court." And of the party suing in the Federal Court. The the court says that "If the marshal were perquestion is, whetherthe United States Courts can mitted to seize them under an execution, it execute judgment against the estates of deceased would not only cause manifest injustice to be persons in the course of administration in the done to the rights of others, but be the occasion States, contrary to the declared law of the State of an unpleasant conflict between courts of sepon the subject. If they can, the rights of arate and independent jurisdiction." those interested in the estate who are citizens of the State where the administration is conducted are materially changed, and the limitation which governs them does not apply to the fortunate creditor who happens to be a citizen of another State. This cannot be so. The administration laws of Arkansas are not merely rules of practice for the courts, but laws limiting rights of parties, and will be observed by the • Federal Courts in the enforcement of individual rights. These laws, on the death of Du Bose and the appointment of his administrator, withdrew the estate from the operation of the execution laws of the State and placed it in the hands of a trustee for the benefit of creditors and distributees. It was thereafter in contem plation of law in the custody of the Probate Court, of which the administrator was an officer, and during the progress of administration was not subject to seizure and sale by anyone. The recovery of judgment gave no prior lien on the property, but simply fixed the status of the party and compelled the administrator to recognize it in the payment of debts. It would be out of his power to perform the duties with which he was charged by law if the property intrusted to him by a court of competent jurisdiction could be taken from him and appropriated to the payment of a single creditor to the injury of all others. How can he account for the assets of the estate to the court from which he derived his authority, if another court can interfere and take them out of his hands? The lands in controversy were assets in the administrator's hands to pay all the debts of the estate, and the law prescribed the manner of their sale and the distribution of the proceeds. He held them for no other purpose, and it would be strange indeed if state power was not competent to regulate the mode in which the assets of a deceased person should be sold and distributed.

This case falls within the principle decided by this court in Williams v. Benedict, 8 How.,

It is true that the court in Williams v. Benedict, supra, expressly reserve the question whether State Legislatures can in all cases compel foreign creditors to seek their remedy against the estates of deceased persons in the State Courts, to the exclusion of the jurisdiction of the Federal Courts, but these remarks were made, not to express a doubt of the correctness of the decision in the case before the court, but to guard the rights of suitors in the courts of the United States, if a case should arise where state legislation had discriminated against them. It is possible, though not probable, that state legislation on the subject of the estates of decedents might be purposely framed so as to discriminate injuriously against the creditor living outside of the State; but if this should unfortunately ever happen, the courts of the United States would find a way, in a proper case, to arrest the discrimination, and to enforce equality of privileges among all classes of claimants, even if the estate were seized by operation of law and confided to a particular jurisdiction. The legislation of Arkansas on this subject, instead of being unfriendly, is wise and just. All creditors are placed upon an equitable foundation, and judgments obtained in the courts of the United States have the same effect as judgments obtained in the courts of the State. The law simply places the assets beyond the reach of ordinary process, for the equal benefit of all persons interested in them, and all that is asked is that the construction of this law adopted by the state tribunals shall be the rule of decision in the Federal Courts. The Federal Court in Arkansas, in entertaining the suit of Gautier,

recognized the power of the State to appoint an | suit, nor is there any question presented about administrator and hold him responsible for the restraining or limiting them.

proper administration of the estate. If so, how The laws of Arkansas required an adminiscan it reject the authority of the State to dis-trator to make final settlement of his administribute the estate in accordance with a scale ap-tration within three years from the date of his plicable to all creditors alike?

letters. Gould, Dig. L. Ark., 139. The administrator of Du Bose not only failed to discharge this duty, but neglected even to convert the assets of the estate into money, in order to pay debts. Gautier was not compelled to resort to the local Probate Court to secure the performance of these obligations, but could, had he chosen, have invoked the equity powers of the Circuit Court for the District of Arkansas, to obtain a suitable measure of redress. This he could have obtained in less time than it has taken to conduct this litigation; but this measure of redress would only have placed him on an equality with other creditors, as prescribed by the laws of Arkansas. It would in no event have diverted the assets, so that his debt should have been satisfied to the exclusion of other creditors equally meritorious.

There is no difference in principle on the point we are considering between the administration and the insolvent laws of a State. In the case of Bk. v. Horn, 17 How.. 160 [58 U. S., XV., 71], this court held that, by the law of Louisiana, the estate of the insolvent vested in the creditors, to be administered by the syndic, as their trustee, and that an execution issued on a judgment obtained in the Circuit Court of the United States for the Eastern District of Louisi ana, after the cession had been accepted and the syndic appointed by the creditors, could not be levied on the property of the insolvent, although the suit was pending when the proceedings in insolvency were begun. The property had been seized by the operation of the law of the State, and was being administered for the benefit of creditors, and when the bank obtained a judg ment the insolvent had no interest in the property subject to levy and sale. So in this case the law vested the assets of Du Bose' estate in a trustee, to be administered and sold for the benefit of creditors and distributees, and when the judgment was rendered against the administrator, the assets being held by him solely in his char- LUMAN JENNISON AND HIRAM JENNIacter as trustee, were no more subject to seizure and sale than they were when held by the trustee of an insolvent estate.

The point decided in Payne v. Hook, 7 Wall., 429 [74 U. S., XIX., 261], relied upon by the plaintiff in error, does not touch the question at issue. The Circuit Court of the United States for the District of Missouri, sitting as a court of chancery, as an incident to its power to enforce trusts, took jurisdiction of a bill filed by Mrs. Payne to compel the administrator of her brother's estate to account and distribute the assets in his hands.

It was contended, as the complainant, were she a citizen of Missouri, could only obtain relief through the local Court of Probate, that she had no better right because of her citizenship in Virginia; but this court held that 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 that a bill stating a case for equitable relief, according to the received principles of equity, would be sus tained, although the court of the State, having general chancery powers, would not entertain it. The bill charged gross misconduct on the part of the administrator, and one of its main objects was to obtain relief against these fraudulent proceedings. This relief was granted, and the administrator compelled faithfully to carry out the trust reposed in him, and to pay to the complainant the distributive share of the estate of her brother, according to the laws of Missouri.

No greater rights in the estate were adjudged to her than were secured by the law of the State, and if she had been a creditor, instead of a distributee, and sought to obtain a preference over a local creditor, we think it safe to say her bill would have been dismissed. The powers of courts of equity are not in issue in the present

The judgment of the Supreme Court of Arkansas is affirmed.

Cited-92 U. S., 121; 2 McCrary. 475, 476; 4 Hughes,

352.

SON, Piffs. in Err.,

v.

EDWARD H. LEONARD, Executor, AND
CORNELIA LEONARD, Exrx. of FRED-
ERICK B. LEONARD, Deceased, who was Sur-
viving Partner of the BELDON LUMBER COM-

PANY.

(See S. C., 21 Wall., 302-310.)

Trial by the court, what errors reviewable-when vendor may re-enter for non-payment-notice to quit-sales of real estate by contract-rights of vendor and vendee--when title vests in vendee -when his interest ceases-surrender.

1. Where a cause is tried by the court without a jury and there are no exceptions to the rulings of the court on the trial, and the finding of facts is special, this court can only review the sufficiency of the facts found to support the judgment.

2. Where, in ordering judgment for plaintiff, certain propositions of law are announced by the judge, these are only important as they affect the question whether the facts found are sufficient to support the judgment.

3. Where one agreed to sell timber lands to another, who was to cut a certain quantity of logs each year and pay a certain sum for each thousand feet so cut, and on payment in full of the contract price was to receive a deed of the lands, and be afterwards executed a bill of sale of logs cut and a mortgage thereon to secure advances and the mortgagees abandoned the lands, and the vendor entered into peaceable possession for non-payment of purchase money, and took possession of all the timber that had been cut and bad not been removed, the vendor may recover of the mortgagees for logs which they afterwards seized and converted to their

Leonard and others, under the style of the Beldon Lumber Company, were the owners of certain lands in Michigan, respecting which a contract of September 1, 1866, was made with Edward Cole. In consideration of $27,000 to be paid to them, they agreed to sell and convey to Cole the lands described. Cole agreed to pay for them the sum of $27,000, as follows, viz.: $10,000, with interest, in one year; the same sum in two years, with interest; the balance, $7,000, with interest, at the end of three years. It was Fuhr v. Dean, 26 Mo., 116; Wood v. Manley, further agreed that for every thousand feet of 11 Ad. & El., 34; Snowden v. Wilas, 19 timber cut and removed, Cole should pay Ind., 10; Buck v. Pickwell, 27 Vt., 157; Bing. monthly the sum of $3; and he agreed to cut Real Prop., 111; Nettleton v. Sikes, 8 Met., 34; and remove at least three million feet every Claflin v. Carpenter, 4 Met., 582; Jones v. Wol-year. In the event that the monthly payments

fell short of the annual payment, Cole was to | tract forfeited. Conceding that the intention of make up the deficiency.

the parties determines the question, the claim can scarcely be sustained in relation to a sale of timber lands, where the entire value of the estate consists in the timber standing upon them, and when it is provided that there shall be monthly payments, to be regulated by the quantity of timber cut, and when it is provided that a given quantity shall be cut during every month. That the parties should not have intended to re

Prior to June 11, 1867, Cole executed to the Jennisons, the parties to this suit, a bill of sale of a million of feet of the logs cut on said premises, and three chattel mortgages upon the same to secure them for advances made to him. The Jennisons, not being paid the amounts secured by their mortgages, entered on the land in question early in July, 1867, and took possession of the timber cut by Cole and not theretofore re-quire the payments to be kept up in the ratio moved, and commenced to remove the same. On the 20th of that month, they entered into an agreement by which they recognized the interest of Leonard in the property, and undertook to pay what was due on the contract to Leonard, and what should become due, so long as they · operated under said chattel mortgage.'

A dispute soon arose as to the amount thus due, and on the 4th of September, 1867, the Jennisons refused further to operate on the land, but abandoned the land and have not since removed any timber therefrom.

Leonard then entered into possession of the land for the alleged breach of contract by the non-payment of $5,282.70, then due and unpaid on the Cole contract, and took possession of all the down timber not removed, amounting to one million one hundred and twenty-two thousand feet board measure. At an expense of $5,369.64, this timber was transported by Leon ard to a mill near the mouth of the Grand River, sawed into lumber and placed on vessels for the Chicago market, without interference with his possession, removal or manufacture by any one. While thus on vessels and about to be sent to Chicago, the Jennisons seized the lumber, sold and converted it to their own use, claiming that the logs from which it was manufactured were theirs by virtue of the mortgages to them from Cole, hereinbefore described. It is for this taking that the action is brought.

:

There is but a single question of law in the case, viz. are the facts found sufficient to support the judgment? This question may be affected by a greater or less number of considerations, but it is the sole question.

There are no exceptions to the rulings of the court in the progress of the trial, and no objection of that character can now be heard. We are authorized by the Statute of March 3, 1865, where the finding of facts is special, to review "the determination of the sufficiency of the facts found to support the judgment," Norris v. Jack son, 9 Wall., 125 [76 U. S., XIX., 608], and we are authorized to examine no other question. In ordering judgment for the plaintiff, certain propositions of law are announced by the judge as having been held by him. These are important only as they necessarily and of them selves affect the question, whether the facts found are sufficient to support the judgment, and they are no more important than if they had not been thus announced. No specific exception is or can be taken to them.

It is contended that the vendor had no right, under the contract of September 1, 1866, to reenter upon the premises, and take possession of the down timber. This contention is based upon the idea that time was not of the essence of the contract, and that although Cole was in arrears of payment to an amount exceeding $5,000, this gave no right to the vendor to declare the con

of the cutting, and that the vendor should not have intended to reserve his only practical protection in this respect, viz.: a right of entry in the case of a failure, cannot readily be believed. The Jennisons entered into possession of the premises, as mortgagees of Cole, in the hope of saving their debt from him by operating under his contract, and they agreed with his vendor to pay the sums due and becoming due under his contract as long as they should operate under their mortgage. A dispute arising as to the amount thus to be paid, "They abandoned the lands, and the vendor entered into peaceable possession" for the alleged breach, viz.: the non-payment of $5,280.70, and took possession of all the timber that had been cut and had not been removed.

Looking at the circumstances: that Cole had refused to perform, and had surrendered and assigned all his interest in the contract and the timber; that the Jennisons had ceased their operations and had abandoned the land; that Leonard had entered into possession of the land and the timber cut, and had caused the same to be removed and sawed into boards; that the right of the Jennisons extended only to such timber as had been cut when their mortgage was executed; that there is no evidence that the timber in question had then been cut, it seems sufficiently plain, not only that Leonard was the owner of and lawfully in possession of the timber and lumber in question, but that his right was assented to by all parties who were in a condition to question it. The Jennisons not only failed to show any title to the lumber at any time, but voluntarily abandoned whatever interest they might be supposed to have had.

It is urged that Leonard took certain swamp lands in Ottawa as collateral security for the performance of his contract by Cole. If we suppose this to be true, we do not see that it is very important. The payments were large in amount ($27,000, with interest), extending over a period of three years. That certain lands, neither the quality nor value of which is stated, except that they were swamp lands, were agreed to be given in security, will not affect the construction of the contract or the right to relief under it. It is sufficient, however, to say that though the contract contains an agreement to convey the swamp lands, there is no finding that these lands were conveyed to the plaintiffs. It rested in agreement merely, and there is nothing to justify the suggestion that the swamp lands were ever conveyed by Cole.

The claim that the instrument we have been discussing is a lease, does not require much consideration. It has neither a lessor, a lessee, nor a subject of demise. The only valuable portion of it, the timber, was expected to be exhausted in procuring the means of its own payment. When the supposed demise should terminate

there would be no reversion left to the vendor | Fradulent sales under Bankrupt Act—intention that would be worth the taking. -fraudulent preference-judge's chargemeasure of damages-confession of judgment— issuing execution.

Nor is there more foundation for the suggestion that the Jennisons were tenants at will and entitled to three months' notice to quit. They did not wait for a notice to quit. Without regard to the order or effect of their going, they went when they were ready, leaving Leonard to take care of his own interest as well as he was able.

1. Assignees of the bankrupt's estate may recover back money or other property paid, conveyed, sold, assigned or transferred, within four months before the filing of the petition, contrary to the provisions of the Bankrupt Act. 2. Persons of sound mind and discretion must, in general, be understood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable consequences of their acts. whether the debtor gave the preference with or 3. It is immaterial under the Bankrupt Act without solicitation from the creditor, if the evidence showed that he gave it when insolvent and in fraud of the Act, to the knowledge of the cred4. Where the court charged in regard to a particular item of evidence and there was much other evidence given to prove the same issue, it would be an unreasonable construction of the charge to suppose that the court, in submitting that proposition to the jury, intended to exclude from their consideration all the other evidence in the case which was applicable to the same issue.

This was one of the sales of real estate by contract, so common in this country, in which the title remains in the vendor and the possession passes to the vendee. The legal title remains in the vendor, while an equitable interest vests in the vendee to the extent of the pay-itor. ments made by him. As his payments increase, his equitable interest increases, and when the contract price is fully paid, the entire title is equitably vested in him, and he may compel a conveyance of the legal title by the vendor, his heirs or his assigns. The vendor is a trustee of the legal title for the vendee to the extent of his payment. The result of this state of things is quite unlike that of a conveyance subject to a condition subsequent which is broken, and when re-entry or a claim of title for condition broken is necessary to enable the vendor to restore to himself the title to the estate. The legal title having, in that case, passed out of him, some measures are necessary to replace it. In the case of a contract like that we are considering no legal title passes. The interest of the vendee is equitable merely, and whatever puts an end to the equitable interest-as notice, an agreement of the parties, a surrender, an abandonment-places the vendor where he was before the contract was made.

No mode of terminating an equitable interest can be more perfect than a voluntary relinquishment, by the vendee, of all rights under the contract, and a voluntary surrender of the possession to the vendor. The finding of the court shows that this took place in relation to the premises in question, and that the surrender was accepted by the vendor.

We may safely say, then: first, that no importance is to be attributed to the circumstance that the contract contains no clause of re-entry; or second, to the fact that the vendor has sought to enforce payment of the amounts which became due to him before the surrender and abandonment; and third, that there can be doubt about the intention of the parties in making the contract, that the payments and the cutting should proceed in the ratio specified; or fourth, that when the payments ceased it was intended, and is the law, that the cutting should also cease; or fifth, that by the facts appearing by the finding of the court the executors of Mr. Leonard are entitled to a judgment for the value of the lumber taken from his possession, with inter

5. Where the assignee in bankruptcy sues to recover damages for property of the bankrupt seized and sold on execution against the bankrupt by a creditor, the measure of damages is the value of the property seized and sold.

6. Although the 35th section of the Bankrupt Act judgment as a prohibited act, a recovery for such does not specify the giving of a warrant to confess act can be had under that section.

7. The court below did not err in refusing to charge that the court would not take jurisdiction tam, and the goods had been sold upon the execuof a case where the claim had passed in rem judication issued upon the judgment.

8. Evidence that the entry of the judgment and debtor was wholly immaterial. the issuing of the execution were a surprise to the

[No. 17.] Argued Dec. 17, 1874. Decided Jan. 11, 1875. N ERROR to the Circuit Court of the United

States for the Western District of Pennsyl

vania.

Suit was brought in the court below by the defendant in error as a bankrupt's assignee, to recover certain money alleged to have been collected in opposition to the provisions of the bankrupt law concerning preferences. Judg ment having been given in favor of plaintiff, the defendant sued out this writ of error. The case is stated by the court.

Messrs. J. S. Black and James Veech, for plaintiff in error:

The important question of fact was, whether the debtor procured his personal property to be seized under the execution.

The plaintiff did not prove such procurement, but the court charged the jury in effect that he might recover without proving it.

But that was not the worst, or nearly the worst injustice done to the defendant. Burns, the debtor, was called by the plaintiff, but the plaint iff did not ask him whether he had himself procured the seizure of his goods, or whether he had denied or assented to it, or whether he had given the judgment with the intent or expecta tion that it should be followed by an execution and levy. When his testimony had gone as far as the plaintiff wished without touching this important point, the defendant proposed to prove affirmatively by the same witness that the a surprise upon him and wholly unexpected; seizure, so far from being procured by him was that, as soon as he learned what use was going to be made of the warrants of attorney which