1870. STEINBACH V. STEWART. have been held to be conveyances of the entire | title to lands. Mulford v. Le Franc, 26 Cal. If there were any doubts respecting the deed, It is insisted, however, that even if the intent was to convey the land, instead of mere license to occupy it, the instrument was ineffectual, because informal. It is said that it did not contain all the requisites of a valid Mexican grant. It is doubtful whether this point was made in the court below. It does not distinctly appear in the bill of exceptions that it was urged as an The objection to the admission of the deed. objection appears rather to have been that Hoeppener obtained by the deed a mere license, which terminated when he asserted title to the land, or attempted to convey it. Such was the reason stated for the objection in the bill tendered by the plaintiff. But assuming that it is presented for our consideration, we are of opinion the deed contains all that was necessary to constitute an operative grant. That it was executed and delivered, and that, in pursuance of it, Hoeppener was put into possession by the grantor. are facts that are not controverted. This is all that, under the civil law, is necessary to transfer titles. Livery of seisin is Admitting that, under the controlling fact. the Mexican law, a contract in writing was necessary to a private conveyance, it is nevertheless true that the form of the instrument 578*] was not *material. Any form would answer that manifested an intent to convey. Here were words of grant (cedo y transparo). The word cedo (I grant) is the ordinary word used in Mexican conveyance to pass | 108. Though the earlier cases in California as- was The third assignment of error is founded upon the third exception taken in the court below. It is, in substance, that the court received in evidence a deed from Hoeppener to Carlos Glein, dated December 1, 1847. It was offered with sundry other conveyances, by which the In the title conveyed to Glein became vested in Whitman, one of the defendants in error. deed from Hoeppener, thus received, the subject of the grant was described as follows: "All that certain tract and parcel of land, containing 300 acres, more or less, being a portion of the rancho named 'Agua Caliente,' as transferred to the said Andres Hoeppener by M. G. Vallejo, the said 300 acres being more particularly bounded and described as follows, to wit: the On the west side by Sonoma Creek, on the east side by the Napa hills, on north by Yeltan's farm, and on the [*579 south by land of Ernest Rufus." In connection with the offer of this deed it was proved that Glein, the grantee, at the time of his purchase, took possession of the tract thus conveyed (the same now held by Whitman) and paid a valuable consideration for it; and that all the succeeding grantees, including Whitman, paid valuable considerations for their grants at the times of their several purchases, and took possession of the land, remaining in open and noIt was torious possession while their interests continued, Whitman still retaining his. also proved that when Steinbach, the plaintiff, acquired his title to the Agua Caliente rancho, Whitman was in the open and notorious possession of the tract, claiming to own the same. To the admission of this deed from Hoeppener to Glein the plaintiff objected, for two reasons assigned at the time. The first of these was that the deed did not import to convey the title to any particular tract of land; and the second was, that it created no legal estate, Neither of and that it was, therefore, incompetent evidence for any issue made in the action. these reasons is, in our opinion, well founded. The first rests upon a mistake of fact. We are unable to perceive that there was insuflicient certainty in the description of the land granted. It was identified by giving natural boundaries 59 Finding no error in the record, the judgment for both its east and west sides, and by calls for adjoining proprietors upon the north and is affirmed. the south. This was enough. In regard to the second reason, we remark that the entire deed p. H. MORGAN et al., Commissioners of the is not before us. It is not found in the record, and there is nothing, therefore to show that it did not convey all the estate which Hoeppener had acquired by the deed to him from Vallejo. If it did not, it was incumbent upon the plaintiff in error to show the fact by exhibiting to us the deed itself. We infer, from the course of the argument, that the objection was intended only to reassert that Hoeppener's title was a mere equity. The worthlessness of that assertion has already been sufficiently considered. The fourth exception is quite similar to the third. It is that the court received in evidence, against the objection of the plaintiff, a deed, dated November 14, 1846, from Andres 580*] *Hoeppener to J. Jacob Dopken, whose title subsequently passed to Martha C. Watriss, another of the defendants. The deed was for six hundred and forty acres, part of the rancho "Agua Caliente" granted to Peña, confirmed to Vallejo and conveyed by him, as above mentioned, to Hoeppener. Standing by itself, the deed is indefinite in its description of the land intended to be granted, and an insufficient designation of the subject of the grant. But it was not offered or received alone. It was made, as will be perceived, while the country was under Mexican rule, and its offer was attended by proof of what amounted to livery of seisin, an actual putting of the grantee into possession under it, and a maintenance of that possession from 1846 until 1864, when this suit was brought. It had been admitted, when the deed was received in evidence, that Vallejo had put Hoeppener into possession of the entire rancho, and that Hoeppener continued in possession until he sold to Dopken, when he retired, and allowed his grantee to take possession of the tract sold. This was a parol identification followed by long possession unchallenged. Considering the looseness of Mexican grants at that time and the acquiescence, for so many years, of the grantor and all claiming under him, we cannot say that the deed, in connection with this other evidence, was erroneously admitted. The only remaining assignment of error is that the court refused to allow the plaintiff to give evidence in rebuttal to prove that, even if the deed shown by the defendants from Hoeppener did make out an equity in his grantees, Hoeppener failed to perform the conditions upon which Vallejo's grant was made to him, upon which the equity rested and, therefore, that the equity expired. A few words will dispose of this. If the assignment correctly represented what was the ruling of the court, it would be a sufficient answer to it, that the deed from Vallejo to Hoeppener was unconditional and, therefore, that his title, and that of his grantees, was not dependent upon the performance or nonperform ance of conditions. But the court made no such refusal as that of which the plaintiff com581*] plains. "What the court did rule was that Hoeppener's statements, made after he had conveyed the land to others, could not be admitted to invalidate his deeds. Surely such a ruling requires no vindication. Bank of Louisiana, Appts., บ. JOHN THORNHILL et al. (See S. C. 11 Wall. 65-81.) Jurisdiction over decrees in bankruptcy—when this court has not-final decrees. This court has no jurisdiction to revise a decree of the circuit judge, rendered by virtue of the special power conferred to exercise a general superintendence and jurisdiction in all cases and questionsarising under the bankrupt act, conferred by the 24 section of said act, to be exercised in term or vacation. Decrees in equity, in order that they may be reexamined in this court, must be final decrees rendered in term time, as contradistinguished from mere interlocutory decrees, or orders which may be entered at chambers. The history and facts of the case fully ap-pear in the opinion of the court. Messrs. C. Cushing and Thomas Allen Clarke, for appellees: The appeal in this case should be dismissed. on the following grounds: 1. Because the decree appealed from was rendered by the circuit judge, by virtue of the special power conferred on the circuit court or the judge thereof, to exercise a general superintendence and jurisdiction of all cases and questions arising under the bankrupt act, conferred by the 1st section of said act, to be exercised by the said circuit court or the judge thereof, in term time or vacation; from which class of decree no appeal lies. By reference to the bankrupt act, 14 Stat. at L. 518, it will be seen that, by the 2d section of said act, the circuit court is invested with a general superintendence and jurisdiction of all cases and questions arising under this act; and except when special provision is otherwise made, may, upon bill, petition or other process. of any party aggrieved, hear and determine the case in a court of equity. The powers and duties hereby granted may be exercised, either by said court or by any justice thereof, in term time or vacation. By the 8th section of the bankrupt act it is further provided: "That appeals may be taken from the district court to the circuit courts in all cases in equity, and writs of error may be allowed to said circuit courts in cases at law." The 8th section regulating appeals, makes no change in the general law of appeals, except in reference to the amount and time within which an appeal must be taken, in which it is lessfavorable than the general law on regulating appeals. An appeal, therefore, from the district court can only be taken to the circuit court, in the cases in which it can be taken ordinarily; that is, it must be taken from a final decree of the district court. In all other cases, where the circuit court acts in matters of bankruptcy, it is by virtue of the special, comprehensive, and almost universal power of superintendence conferred by the 2d section of the act. By the 2d section of the act, the circuit court has a general "superintendence of all cases and questions arising under" the bankrupt act. The only exception to this general jurisdiction of superintendence, is in the case of appeals and writs of error. The cases in which an appeal lies to the Supreme Court of the United States under the bankrupt act are necessarily limited to such final decrees made in the circuit court as have been made in cases brought there by appeal, or originating there. The act provides: "In cases arising under this act, no appeal or writ of error shall be allowed in any case from the circuit courts to the Supreme Court of the United States, unless the matter in dispute exceeds $2,000." The case did not come into the circuit court by appeal from the district court, nor did it originate in the circuit court. It was the result of an application to the circuit judge, under the special powers of superintendence given him by the 2d section of the bankrupt act. The matter was brought before the circuit judge by petition, invoking the special revisory jurisdiction of the circuit judge. It is a familiar principle of law, that the appellate jurisdiction of this court does not include a decree under a law conferring a new and special jurisdiction, in which no remedy by appeal is granted. U. S. v. Nourse, 6 Pet. 470. The decree or order appealed from in this case, was made under a law conferring a new and special jurisdiction on the circuit judge. From the exercise of this special jurisdiction, no appeal is given. The general superintendence granted to the circuit judge by the 2d section of the bankrupt act, is to be exercised by him in court or at chambers. This is a controlling fact, to show that no right of appeal was intended to be given from the decisions of the circuit judge, in the exereise of this power of superintendence. The exercise of the appellate power of this court is confined almost exclusively to the final judgments or decrees of the circuit court, rendered in term time. The Supreme Court in the case of U. S. v. Nourse, supra, commenting on the fact that, in the case then before the court, the judge of the court below was authorized to act at chambers, say: "From a decision of the district judge out of court, how could the government appeal to the circuit court?" The order or decree appealed from in this case was made by the judge out of court. Final decrees are, according to our practice, rendered in court. The decree in this case was rendered out of court. Only interlocutory decrees are rendered out of court. Messrs. W. M. Evarts, P. Phillips and Edward Phillips & Cooley, for appellants: It was decided that under the bankrupt act of Aug. 19, 1841, there was no appeal to this court. But this decision rested entirely upon the construction of its various provisions, showing that its proceedings were to be conducted in a summary manner. The jurisdictional clause declared that they were to "be exercised summarily, in the nature of summary proceedings in equity." Nelson v. Carland, 1 How. 265; Ex parte Bk. of N. O. 3 How. 317. There are no such provisions in the present bankrupt act. On the contrary, the most ample provisions are made for appeals and writs of error from the district to the circuit courts (8th sec.), while by another section the circuit court is vested with a general superintendence and jurisdiction of all questions and cases arising under this act; and except when provision is otherwise made, may, upon bill, petition or other process of any party aggrieved, hear and determine the case in a court of equity, and these powers and duties may be exercised, either by the said court or any justice thereof, in term time or vacation. 14 Stat. at L. 518. The revisory power of the circuit court was thus, in one form or another, extended over the whole matter confided to the jurisdiction of the district court, and if the act had been silent as to an appeal to this court from the circuit court, it would have been maintainable under the acts of 1789 and 1803. Ex parte Zellner, 9 Wall. 246, 19 L. ed. 666. But the act is not silent. The 9th section declares that no appeal or writ of error shall be allowed in any case from the circuit to the Supreme Court, unless the matter in dispute shall exceed $2,000. The 10th section authorizes this court to make rules to regulate the practice and procedure upon appeals. It is, therefore, evident that Congress assumed that appeals would be taken from the circuit court and contented itself with alone regulating the amount which gave the juris diction. If, therefore, the decree is final and the amount in controversy exceeds $2,000, the appeal is well taken. The district court, by its judgment, had taken from the administrators appointed by the laws of the state, an estate worth many hundred thousand dollars. The administrators had a personal interest in their salaries of $3,000 per annum of which they were deprived. This judgment was affirmed by the decree of the circuit court, and the rights set up in the petition of review were denied. A decree which changes and transfers the right of property in litigation is a final decree; for if otherwise, irreparable injury would be incurred before redress could be had. Dean v. Nelson, improperly reported as Thompson v. Dean, 7 Wall. 345, 19 L. ed. 95. It is urged by Mr. Cushing that no appeal lies in this case, because the matter was before the circuit judge by petition invoking the special revisory jurisdiction. That is, no appeal lies, though it be admitted that the decree is final and that the amount in controversy exceeds $2,000, because the case was not carried from the district court in the form of an appeal or writ of error, under the 8th section. But it is a mistake to suppose that the appellate power is confined to any particular form. It is ordinarily exercised by appeal or writ of error. In many cases under statute, it is done by a certificate of division or the legislature may provide that it should be exercised by certiorari, petition for review, or by any other process deemed convenient. It is further objected that no appeal lies when the special jurisdiction is exercised, because it is provided that the decree may be rendered by the court or by any justice thereof, in term time or vacation. Terms of court are the arbitrary creations of statute, which may be modified or abolished by statute. Is it any less the exercise of judicial power to decide a case in vacation? If this judicial power be exercised by a subordinate tribunal, what is there in the nature of things, which should free it from the supervision of the superior court? If there be a lack of formality in the discharge of judicial functions in vacation, it would seem to be more, not less, important that such proceeding should be reviewed by the superior court. Much reliance is placed upon an expression wrenched from the opinion in U. S. v. Nourse, 6 Pet. 470. "From a decision of the district judge, out of court, how could the government appeal to the circuit court?" This is said by way of illustration or argument. The court had already decided the point in issue, to wit: that, by the true construction of the act of 1820, the government was excluded from the right of appeal. Whether the right of appeal exists in a given case, is one purely of statutory construction: and the question now before the court is whether the powers conferred by the 2d section of the bankrupt act in the circuit court, are withdrawn from the supervisory jurisdiction of this court because of the provision that "the powers and duties hereby granted may be exercised either by said court, or by any justice thereof, in term time or vacation." Mr. Justice Clifford delivered the opinion of the court: Exclusive original jurisdiction, in all matters and proceedings in bankruptcy, is conferred by the acts of Congress upon the district courts, but in case of a vacancy in the office of a district judge, or in case the district judge shall, from sickness, absence, or other disability be anable to act, the circuit judge may make all necessary rules and orders preparatory to the final hearing, and cause the same to be entered or issued, as the case may require, by the clerk of the district court. 14 Stat. at L. 517; 16 Stat. at L. 174. Certain occurrences, during the late civil war, so crippled the resources of the Bank of Louisiana that the directors became unable to comply with the requisitions of their charter. Proceedings were accordingly instituted by the attorney general of the state, under the act "To Provide for the Liquidation of Banks," in the proper court of the state, to forfeit the charter of the bank, and on the 20th day of May, 1868, a decree was entered in the case that the charter of the bank be declared forfeited, and that its affairs. be liquidated according to law. Pursuant to that decree the appellants were appointed commissioners for that purpose, and the record shows that they accepted the trust, that they took the required oaths, that they gave the necessary bonds, that they entered upon the discharge of their duties, and that they continued to administer the affairs of the bank until the 20th of May of the following year, when the appellees, or the first three named, filed a petition in the district court for that district, praying that the bank and the [*73 said commissioners, in their character as such, might be declared a bankrupt, and that a warrant might issue to take possession of the estate of the bank in the hands of the commissioners. They represented in their petition that the bank and the commissioners had each, within six months preceding the date of the petition, committed an act of bankruptcy, that the corporation had for a long time suspended payment of its commercial paper, and that the commissioners had, within the same period, made certain payments, and transferred certain assets of the bank in payment of its debts, with intent to give a preference to certain creditors of the bank. Special reference to the sup plemental petition is unnecessary, as the representations of the petition are substantially the same, and the two were heard together in the court below. Three several injunctions were granted in the case by the district judge sitting in bankruptcy, and on the 11th of January, 1870, the district court entered a decree that the bank was a bankrupt. Within ten days from the date of the decree, a petition for a review of those orders and decrees was filed by the commissioners in the circuit court, under the 2d section of the bankrupt act, and the circuit court having first heard the parties, on the 2d of March. 1870, entered a decree affirming the orders and decrees of the district court. Application was immediately made by the commissioners for an appeal to this court, which was refused by the circuit judge, but it was ultimately granted by one of the associate justices of this court, more than ten days, however, subsequent to the date of the decree of the circuit court. been made and a sufficient bond tendered, the Seasonable application for the appeal having appellants contended, and still contend, that the appeal as subsequently allowed operated as a supersedeas from the date of the first application. Different views, however, were enterMarch, 1870, he passed an order directing the tained by the district judge, and on the 29th of marshal to resume possession of all such [*74 portion of the assets of the bank as he had surrendered to the commissioners. Dissatisfied with that order the commissioners applied to the associate justice of this court assigned to that circuit to vacate that order and to enforce the supersedeas supposed to have been created by the appeal as allowed in pursuance of the last application. His opinion was that the appeal, as allowed, related back to the date of the original application for the same to the circuit judge, and that it operated as a supersedeas, the same as it would have done if it had been granted within ten days from the date of the decree dismissing the petition for a review and affirming the decree | the circuit court for re-examination by writ of adjudging the corporation a bankrupt. * error, if it was an action at law, or by appeal Influenced by those views he made a decree if it was a suit in equity, provided the debt or that all the orders in the cause subsequent to damage claimed amounts to more than $500, the 21st of January, 1870, should be vacated and the writ of error is seasonably sued and annulled, leaving the injunction of that out and the plaintiff in error complies [*76 date granted by the circuit judge in full force."with the statutes regulating the granting of Certain other orders, nevertheless, were subse- such suits," or the appeal is claimed and the quently made by the district judge; as, for ex- required notices are given within ten days from ample, he passed an order for the appointment the judgment or decree. 14 Stat. at L. 520. of receivers, and another giving the appointees Such a suit, however, by or against such asauthority to pay rents, expenses, and charges signee, or by or against any person claiming an incurred by them out of the funds of the bank. adverse interest in any such property or rights Special objection is made by the appellants to of property, cannot be maintained in any court those orders as forbidden by the supersedeas, whatsoever unless the same shall be brought but the main purpose of the appeal when taken within two years from the time the cause of was to reverse the decree of the circuit court af- action for or against such assignee accrued; firming the decree of the district court, and dis- which shows very satisfactorily that the jurismissing their petition praying for a reversal of diction conferred by the third clause is other that decree. and different from the special jurisdiction and superintendence described in the first clause of the section. Since the appeal was entered the appellees have filed a motion to dismiss the same, upon the ground that no appeal lies to this court from a decree of the circuit court rendered in the exercise of the special jurisdiction conferred upon that court by the first clause of the 2d section of the bankrupt act. 14 Stat. at L. 518. Circuit courts have a general superintendence and jurisdiction, by virtue of that clause, of all cases and questions arising under that act, with 75*] in and for the districts where the *proceedings in bankruptcy are pending, and the provision is, that those courts may, upon bill, petition or other proper process, of any party aggrieved, except when special provision is otherwise made, hear and determine the case (as) in a court of equity, but the next clause of the same section provides that the powers and jurisdiction thereby granted may be exercised either by said court or by any justice thereof, in term time or vacation, and neither of the two clauses makes any provision for an appeal in any such case to this court, whether the case or question presented or involved in the bill, petition or other proper process is submitted to the court or to a justice thereof, or whether the case or question is heard or determined in vacation or in term time. Apart from these two provisions, the third clause of the section provides that circuit courts shall also have concurrent jurisdiction with the district courts of all suits at law or in equity which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee touching any property or rights of property of such bankrupt transferable to or vested in such assignee. Controversies, in order that they may be cognizable under that clause of the section, either in the circuit or district court, must have respect to some property or rights of property of the bankrupt transferable to or vested in such assignee, and the suit, whether it be a suit at law or in equity, must be in the name of one of the two parties described in that clause and gainst the other. All three of those conditions must concur to give the jurisdiction, but where they all concur, the party suing may, at his election, commence his suit either in the circuit or district court, and if in the latter, it is clear that the case, when it has proceeded to final judgment or decree, may be removed into Where such a suit between such parties, touching such subject-matter, proceeds in a circuit court to a final judgment or decree, and the debt or damage claimed, or the matter in dispute, exceeds the sum or value of $2,000, exclusive of costs, no doubt is entertained that the judgment or decree may be removed into this court for re-examination by writ of error, if the judgment was rendered in a civil action, or by appeal if the decree was entered in a suit in equity, as in other similar cases falling within the appellate jurisdiction of this court. 14 Stat. at L. 521; 1 Stat. at L. 84. Creditors whose claims are wholly or in part rejected, may appeal from the decision of the district court to the circuit court of the same district, if the appeal is claimed and the required notices are given within ten days from the entry of the decree or decision, but the appellant in such a case is required to file in the clerk's office a statement in writing of his claim, setting forth the same substantially as in a declaration for the same cause of action at law, and the assignee is required to plead or answer thereto in like manner, and like proceedings shall thereupon be had as in an action at law, except that no execution shall be awarded against the assignee for the amount of the debt found due to the creditor. *Assignees, also, who are dissatisfied [*77 with the allowance of a claim preferred by a creditor, may also appeal from the decision of the district court to the circuit court of the same district, at any time within ten days from the entry of the decree or decision, but it is certain that neither the creditor nor the assignee can appeal to this court from the decree of the circuit court in such a case, as the express enactment is that the final judgment of the court shall be conclusive, and that the list of debts shall, if necessary, be altered to conform thereto. Confirmation of that view is also derived from the succeeding clause in the 24th section of the act, which provides that the prevailing party shall be entitled to costs, and that the costs, if they are recovered against the assignee, shall be allowed out of the estate of the bankrupt. 14 Stat. at L. 528. Authority is also given to any creditor oppos ing the discharge of a bankrupt to file a specifi |