1882. WARREN V. KING. tificate is entirely satisfied by referring it to a | ness," in reference to which the net earnings sub- It seems very clear, that if the trustees, representing the holders of trustees' certificates, had gone on and operated the road for them, not organizing a new company, any debts contracted by the trustees in the business would have had priority over the claims of the holders of such certificates. So, in becoming stockholders in the new company, with the right to vote as to its management and to share in its earnings, they must have intended to allow, through the Corporation, a priority of like debts over their claims as stockholders. Whatever position the holders of preferred It is urged, for the appellants, that the ex certificates occupied before they accepted prepression after its indebtedness" means, next ferred stock, whatever special rights of lien they after the indebtedness then existing or then au- had, they became corporators, proprietors, sharethorized; that the preferred stock was issued to holders and abandoned the position of creditors, the holders of preferred certificates, owners of and took up towards existing and future credthe property, as a quasi purchase money mort-itors the same position which every stockholder gage on its sale; and that they intended to pre- in a corporation occupies towards existing and serve their position except as to the new $6,000,- future creditors. His chance of gain, by the 000 mortgage, because they authorized that and operations of the corporation, throws on him, did not authorize any other. It is very certain as respects creditors, the entire risk of the loss "after its indebtedness" of his share of the capital, which must go to that at best the words are, by themselves, ambiguous on their face, and satisfy the creditors in case of misfortune. He are as capable of being applied to future in- cannot be both creditor and debtor, by virtue debtedness as of being limited to then existing of his ownership of stock. In this case, all the indebtedness. Under the general rules appli- parties holding trustees' certificates united to cable to the position of the stockholders of a form the new corporation, and converted themcorporation, as regards its creditors, a claim of selves into stockholders in it. the kind here made should rest on clear, and no doubtful language. But the provision which follows, as to the rights of the preferred stock in the net earnings of the Company, leaves no doubt as to the meaning of the whole. There is a unity of right in the claim of the preferred stock on the property of the Company, and in the title of its holder to receive a share of the net earnings of that property. His proprietorship in those earnings is a right to receive from them so much a year, if earned, before the common stock receives any dividend therefrom, and when the two classes of stock have each received the same specified amount out of the year's net earnings, he has the right to share equally in the surplus with the holder of common stock. Thus he can have no income on his stock unless there are net earnings. Those net earnings are what is left after paying current expenses and interest on debt and everything else which the stockholders, preferred and common, as a body corporate, are liable to pay. The holders of preferred stock have the same relation, by virtue of the certificate, to the corpus of the property, which they have to its net earnings. Their position in regard to both is one inferior to that of all creditors. They are not preferred as to re-imbursement of principal, or as to a right to net earnings, over anyone but the holders of common stock. The interest to be paid to them is not to be paid absolutely, as to a creditor, but only out of net earnings, the same fund out of which the dividends on common stock are to be paid. Though called interest, it is really a dividend, because to be paid on stock and out of net profits. There was no restriction on the creation of future indebtedness and, necessarily the net earnings of future business would be ascertained in reference to such future indebtedness and the interest on it; and the words "its indebtedness," in the same sentence, naturally mean "its future indebted The same principles must govern the present case which were applied by this court in St. John v. Erie R. Co., 22 Wall., 136 [89 U. S., XXII., 743], where creditors took preferred stock. It was held that they ceased to be creditors and could be regarded only as stockholders, with a chance for dividends out of net earnings and the power of voting, and a priority over holders of common stock, but not a priorMuch stress is laid on the averment in the ity over debts subsequently contracted. cross-bill, that the existence of the preferred stock and of the certificates therefor and of their contents was known to the trustees under the subsequent mortgages before those mortgages were made, and to the bondholders under those mortgages before they became such; and it is urged that the assent of the preferred stockholders to the creation of the subsequent mortgages should have been obtained. The answer to this view is, that the preferred stockholders had no rights which made their assent necessary to the validity, as against them, of the mortgages in question; and that, represented as they were by the Corporation and its directors, the act of making the mortgages was a sufficient assent of the preferred stockholders, if assent were necessary, there being no allegation in the cross-bill inconsistent with the fact, that the issuing of the mortgages was known to, and 773 participated in and sanctioned by, those who were holders of the preferred stock when the mortgages were created. As to the claim that the appellants, if they have no priority over the second mortgage, have, at all events, as against the Company, a lien next after the second mortgage, on the property not covered by the Springfield Division mortgage, and have, in any aspect of the case, a valid claim on the surplus assets of the Company, after paying its debts, superior to the claim of the common stockholders, it is sufficient to say, that we do not deem it proper that those questions should be disposed of on a demurrer to this cross-bill, as they can be raised and decided under the answer which these appellants have filed as defendants in the consolidated suit. The decree of the Circuit Court is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. MORTON E. POST, Plf. in Err., v. JOHN B. PEARSON. (See S. C., Reporter's ed., 418-422.) if there were such proof, and the authority was fully proved, the instrument itself is inadmissi ble in evidence, because it is not executed in such manner as to bind the principal. Story, Ag., sec. 148; Story, Cont., sec. 222; Stackpole v. Arnold, 11 Mass., 27; Ins. Co. v. Covell, 8 Met., 442. It makes no difference that the person sign.ng the contract signs as agent, or with any other descriptio persona; it is still his own contract, and not that of the principal whom he may have intended to bind. This is held universally by all the authorities. Stone v. Wood, 7 Cow., 453; Bank v. Monteath, 1 Den., 402; Seaver v. Coburn, 10 Cush., 324; Jones v. Littledale, 6 Ad. & El., 486; Magee v. Atkinson, 2 Mees. & W., 440; Higgins v. Senior, 8 Mees. & W., 834; Appleton v. Binks, 5 East, 148; Duvall v. Craig, 2 Wheat., 56; Tippets v. Walker, 4 Mass., 595; Forster v. Fuller, 6 Mass., 58; White v. Skinner, 13 Johns., 307; Ellwell v. Shaw, 16 Mass., 42; Smith v. Morse, 9 Wall., 76 (76 U. S., XIX., 597). It does not alter the case that Whitney and Post were partners, as one partner cannot bind his co-partnership by an instrument of writing under seal at least, without his assent to it. The second ground of complaint on behalf of the plaintiff in error is, that the matter in controversy had been adjudicated in the territorial Agreement, parties to-effect of decision on de- district court by the decision upon the demurrer. murrer. *1. An agreement in writing, between W., superintendent of the Keets Mining Company, parties of the first part, and P., party of the second part," by which "the said parties of the first part" agree to deliver at P.'s mill, ore from the Keets Mine (owned by the company) to be crushed and milled by P.; and signed by "W., Supt. Keets Mining Company," and by P., is the contract of the company. 2. An order sustaining a defendant's demurrer, and giving the plaintiff leave to amend, does not preclude the plaintiff from renewing, or the court from entertaining, the same question of law upon the subsequent trial on an amended complaint. [No. 294.] Submitted Apr. 26, 1883. Decided May 7, 1883. The history and facts of the case appear in the opinion of the court. Messrs. R. T. Merrick, M. F. Morris and William R. Steele, for plaintiff in error: That a decision upon demurrer, if it involves the merits of the case, is just as final as any other decision, is beyond question. It is also true, that "A decision given in the progress of a case, whether right or wrong, is the law of the case in which it is given, and binding upon the parties." Rector v. Danley, 14 Ark., 304; Cole v. Clark, 3 Wis.,323; Deslonde v. Darrington, 29 Ala., 92; Thomas v. Doub, 1 Md., 252; Lucas v. San Fran cisco, 28 Cal., 591. Messrs. J. W. Smith and Van Cise & Wilson, for defendant in error: A judgment rendered upon the insufficiency of the declaration and not upon the merits of the case, is no bar. Wilbur v. Gilmore, 21 Pick., 250; Jordan v. Sicfert, 126 Mass., 25. In no sense was the ruling on the demurrer a bar. It was not a judgment; it was not final; plaintiff could not have appealed from it. Cruger v. Douglass, 2 N. Y., 571; Colman v. Diron, 50 N. Y., 572; Ferris v. Aspinwall, 10 Abb. (N. S.), 137; Adams v. Fox, 27 N. Y., 640. The instrument did not require to be sealed and it is to be treated as the written evidence of a simple contract; the seal adds nothing to it. There is no proof, anywhere in the record, that Post either authorized the execution of the written contract introduced into the case, or subsequently ratified it. The proof is merely that he was a member of a partnership known as the Keets Mining Company"; that, as such member, he received a portion of the proceeds Evans v. Wells, 22 Wend., 325; Stowell v. Elof the contract, knowing whence they came; dred, 39 Wis., 625; Gibson v. Warden, 14 Wall., that Whitney, who made the contract, was su- 244 (81 U. S., XX., 797); Worrall v. Munn, 5 perintendent of the Keets Mining Company; and N. Y., 229; Lawrence v. Taylor, 5 Hill, 113; that the contract was understood by both Whit-Skinner v. Dayton, 19 Johns., 554; Randall v. ney and Pearson to have been made for the benfit of the company, and not for the individual benefit of Whitney. The liability of Post can be sustained only upon proof that Whitney, in the execution of the contract, was authorized to bind him. Even *Head notes by Mr. Justice GRAY. NOTE. When promissory notes, executed by an offi cer, bind the corporation; when the officer. See note to Hitchcock v. Buchanan, 105 U. S., XXVI., 1078. Van Vechten, 19 Johns., 60; Damon v. Granby, 2 Pick., 352; Bank v. Patterson, 7 Cranch, 299. But this distinction is unimportant, in view of the fact that, in Dakota, all distinctions between sealed and unsealed instruments are abol ished. Civil Code, Dakota, sec. 925. Mr. Justice Gray delivered the opinion of the court: This is an action brought in an inferior court of Dakota Territory, by John B. Pearson against Alvin W. Whitney and Morton E. Post, copartners under the name of the Keets Mining Company. Post alleged exceptions to both rulings, and the jury returned a verdict for the plaintiff, upon which judgment was rendered. On appeal, that judgment was affirmed by the Supreme Court of the Territory. See, 2 Dak., 220. Post sued out this writ of error. It is unnecessary to consider whether, if this were to be treated as a contract under seal, it could be held to be upon its face the contract of the Keets Mining Company, and not of Whitney only, or whether the oral testimony would have been admissible to charge Post; because, by the Civil Code of Dakota, "all distinctions between sealed and unsealed instruments are abolished," and "any instrument within the scope of his authority, by which an agent intends to bind his principal, does hind him, if such intent is plainly inferable from the instrument itself." Civil Code of Dakota of 1877, secs. 925, Annexed to the complaint was a copy of a contract under seal, entitled "Memorandum of an agreement made and entered into this 16th day of July, 1877, at Central City, Dakota, by and between A. W. Whitney, Superintendent of the Keets Mining Company, parties of the first part, and J. B. Pearson, party of the second part;" and by which "the said parties of the first part" agree to deliver at Pearson's mill in Central City, gold-bearing ore from the Keets mine from time to time, in quantities sufficient to constantly supply the working capacity of the mill of about thirty tons daily; and also agree to pay the sum of $9 for each ton crushed and milled; and Pearson agrees to run his mill con-1373. stantly upon that ore for a term of ninety days from the date of the contract; and which is signed and sealed as follows: "A. W. Whitney, [Seal.] Supt. Keets Mining Co.,[Seal.j John B. Pearson. [Seal.]" The complaint set forth the terms of the contract, and alleged the plaintiff's performance and readiness to perform, and the defendant's neglect and refusal to deliver ore as agreed, or to pay for crushing and milling what they did deliver. The defendant, Post, demurred to the complaint, because he was not shown to be a party to the contract sued on, and because sufficient facts were not stated to constitute a cause of action against him. The inferior court sustained the demurrer, and gave the plaintiff leave to amend his complaint. The plaintiff then filed an amended complaint, not alleging the contract to have been in writing, but setting forth its terms, and alleging the other facts substantially as in the original complaint. The defendants answered; Post denying all the allegations of the amended complaint, and Whitney admitting the making of the contract and denying the other allegations. At the trial, the written contract was admitted in evidence, without objection; it appeared that it was made by the parties thereto, and that Whitney, in making it, acted in behalf and for the benefit of the Keets Mining Company, of which he was the superintendent, and was understood by the plaintiff so to act; and that Whitney, as such superintendent, afterwards broke the contract, to the damage of the plaintiff. By the subject-matter of this contract, which is the delivery and milling of ore from the Keets mine; by the description of Whitney, both in the body of the contract and in the signature, as superintendent of the Keets Mining Company; and by the use of the words "parties of the first part," which are applicable to a company and not to a single individual, the contract made by the hand of Whitney clearly appears upon its face to have been intended to bind and, therefore, did bind the company; and, upon proof that Post was a partner in the company, bound him. Whitney v. Wyman, 101 U. S., 392 [XXV., 1050]; Hitchcock v. Buchanan, 105 U. S., 416 [XXVI., 1078]; Goodenough v. Thayer, 132 Mass., 152. The order sustaining Post's demurrer to the original complaint gave the plaintiff leave to amend, and did not preclude the plaintiff from renewing nor the court from entertaining the same question of law upon a fuller development of the facts at the trial on the amended complaint. Calder v. Haynes, 7 Allen, 387. Judgment affirmed. True copy. Test: James H. McKenney, Clerk Sup. Court, U. S. W. J. HAWKINS AND WALTER CLARK, Assignees in Bankruptcy of the Estate and Effects of THOMAS P. DEVEREUX, Deceased, a Bankrupt; WALTER CLARK AND JOHN DEVEREUX, as Trustees of the Estate of the Said THOMAS P. DEVEREUX, Appts., v. GRINFILL BLAKE ET AL. The plaintiff, against the objection of Post, and for the purpose of showing that Post was one of the real parties in interest and a participant in the results of the contract, and that Whitney acted merely as the agent of himself and Post as principals, was permitted to intro- New party to action—land when chargeable with duce oral evidence that Post was an owner of the Keets mine, and a copartner with Whitney, under the name of the Keets Mining Company, in the business of working the mine and having the ore from it crushed, and as such copartner received a large portion of the proceeds of the contract, knowing whence they came. The court also declined to rule and instruct the jury, as Post requested, that the order sustaining his demurrer to the original complaint prevented a recovery against him in this action. (See S. C., Reporter's ed., 422-436.) legacies. 1. It is not error, on the execution of the mandate of this court to permit a third person to become a party and set up rights not embraced in the former decree, where it was done by consent of all parties. 2. Where one acting, though wrongfully, as executor of a will, appropriates the general personal estate to his own use to pay legacies charged upon his land, the land will, in equity, remain chargeable with the deficiency in the general personal estate thus created by him. [No. 261.] Argued Apr. 19 20, 1883. Decided May 7, 1883. APPEAL from the Circuit Court of the United trustees were defendants below, and are now ap States for the Eastern District of North Carolina. The history and facts of the case fully appear in the opinion of the court. Messrs. A. S. Merrimon, T. C. Fuller and Walter Clark, for appellants: An appeal lies, when this court having decided a cause on a former appeal, sends its mandate to the circuit court, and the latter court has failed to observe and pursue the mandate of this court: The Lady Pike, 96 U. S., 461 (XXIV., 672); Stewart v. Salamon, 97 U. S., 361 (XXIV.,1044); Humphrey v. Baker, 103 U. S., 736 (XXVI., 456). The circuit court must obey the mandate from this court, and it has no power to rehear the case or resettle the rights of the parties, or to modify in any respect, what this court has established or affirmed. The power of the court in such case only extends to the execution of the mandate. Ex parte Sibbald, 12 Pet., 492; Skillern v. May, 6 Cranch, 267; Ex parte R. R. Co., 1 Wall., 69 (68 U. S., XVII., 514); Ex parte Morris, 9 Wall., 605 (76 U. S., XIX., 799); Durant v. Essex Co., 101 U. S., 555 (XXV.,961); Stewart v. Salamon (supra); Humphrey v. Baker (supra); Chaires v. Ū. S., 3 How.,611; West v. Brashear, 14 Pet., 51; Mitchel v. U. S., 15 Pet., 52; R. R. Co. v. Soutter, 2 Wall., 510 (69 U. S.,XVII., 900). Messrs. S. F. Phillips, Fabius H. Busbee and John W. Hinsdale, for appellees. Mr. Justice Matthews delivered the opinion of the court: A former appeal in this cause was disposed of by this court by a decision reported in Blake v. Hawkins, 98 U. S., 315 [XXV., 139], to which reference is made for a full statement of the case as then presented. The final decree of the circuit court, there reviewed, was reversed, and the cause was remanded with directions to take further proceedings and enter a decree in accordance with the opinion of the court as then declared. The subsequent proceedings and decree,upon the mandate of this court, are now brought here for review, on the ground that they do not, in several particulars, conform to that mandate. A brief statement of the case will suffice to explain and adjust the remaining controversy pellants. The charge upon the lands conveyed to Thomas P. Devereux included an annuity, during the life of Frances Devereux, payable to herself, of $3,000, being six per cent on the principal sum; and as to the principal sum, the language of the deed was "That the said Thomas P. Devereux, his heirs or assigns, shall invest for or pay to the said Frances, at such times, in such proportions and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000; but if the said sum of money or any part thereof shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed or will or writing in nature thereof, or by some other act give, grant, dispose or direct any payment, investment or application of the same, then the said sum of money or so much thereof as shall remain not paid, given, granted, disposed or directed to be invested, paid or applied, shall be considered as lapsing and the charge thereof as extinguished for the benefit of the said Thomas." In her will, among other bequests, was one of $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified. There was no residuary clause. Thomas P. Devereux, though named as executor in his mother's will, did not qualify as such; but, after her death, paid off the legacies mentioned and took possession of a large part of her personal estate, so as to become chargeable therefor as executor de son tort. The estate of Frances Devereux is represented by an administrator de bonis non with the will annexed. The decree of the circuit court in 1874, which was the subject of the former appeal, declared, among other things: 1. That Frances Devereux did not by her last will appoint the fund of $50,000, charged upon the land, "To be part of her general personal estate in the hands of her executors; nor appoint the said fund at all, except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her personal assets, after payment of her debts and general expenses and the costs of administering her estate." 2. That the complainants were not entitled to any account of the fund of $50,000, except for the purpose of determining the amount in arrears of the annuity of $3,000 during the lifetime of Thomas Devereux, unexpended, of which unexpended balance, and of the remainder of her personal estate which came to the hands of Thomas P. Devereux, they are entitled to an account. The complainants below were the appellants from the first decree, and are now appellees. They are, of the next of kin of Frances Devereux, entitled to a share of the residue of her personal estate undisposed of by her will. The object of the bill was to obtain an account of that estate from Thomas P. Devereux, as executor de son tort, including a fund, being part of a sum of $50,000 originally charged upon real estate conveyed to Thomas P. Devereux by Frances Devereux, in case she should appoint the same by will or otherwise, and which, it 3. That, in taking that account, the assignees was claimed by the complainants, she had ap-in bankruptcy are entitled to be credited with pointed by her will to her executors. The es- the amounts which Thomas P. Devereux extate of Thomas P. Devereux passed, by his pended in purchasing the pecuniary legacies be bankruptcy, to assignees and trustees, includ- queathed by Frances Devereux. ing the lands on which the fund in question, alleged to have been the subject of the appointment, had been charged. These assignees and A statement of that account was agreed upon, which showed that, at the date of his bankruptcy, May 31, 1868, Thomas P. Devereux was Statute of Limitations, alleging that the fund of $7,500 had been raised, and that the lands of Thomas P. Devereux were discharged from its payment, denying that the $150 annuity was a charge on those lands, but upon the house and lot in Chapel Hill, which sold for only $45, and the slaves, which it is alleged were not sold by Thomas P. Devereux, but lost by the result of the war, etc. chargeable with $41,633 of the general personal | ruptcy filed their answer to it, pleading the assets of his mother's estate, after payment of debts, funeral expenses and costs of administration, including interest to that date; and that he was entitled to credit for $39,466.58, which included interest to the same date, for the amount expended by him in payment or purchase of the pecuniary legacies under the will, leaving a balance due from him of $2,166.42, of which the complainants were entitled to one third, or $722.14 for which, accordingly, a decree was entered in their favor. pointed to her executors, was on the third (3d) of June, 1849, the date of her death, the sum of ($21,527.67) twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents." It was thereupon agreed by the parties to waive the taking of the account ordered by the manIn reversing this decree, this court said, 98 date of this court; and that "The balance charged U. S., 328 [XXV., 142],"Whether, if the fund on the land of Thomas P. Devereux, and which which remained in the hands of Thomas P. Mrs. Frances Devereux had not disposed of durDevereux at the death of the testatrix had ex-ing her life, and which by her will she apceeded the sum required to pay the legacies given by her will, that is to say: the sum of $28,500, the will would have been a complete execution of the power, covering the whole fund, or only a partial appointment of so much as was needed to pay those legacies, it is unnecessary for us now to decide. In the view which we take of the other questions involved in the case, that fund had been reduced so far that there was not more than enough remaining subject to the power to pay the sums bequeathed by the will. The execution was therefore complete, and it appointed the whole fund to the executors of this will, who took it under the appointment as part of the personal estate of the appointor." There was, therefore, error in the decree of the circuit court, so far as it adjudged that the testatrix, Frances Devereux, did not appoint to her executors the fund over which she had the power of appointment, "Except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general assets after payment of her debts and funeral expenses and the costs of administering her estate." After noticing and disposing of other assignments of error, not material now to be repeated, the judgment of the court concludes as follows: "Our conclusion, therefore, is, after reviewing the whole case, that there has been no error committed, except the single one which we first noticed. For that, however, the decree of the circuit court must be reversed and the case sent back, with instructions to direct a new accounting and to enter a decree in conformity with this opinion." The facts in regard to the legacy of $7,500 to Thomas P. Devereux in trust, and the interest therein of Louisa N. Taylor, were also agreed upon. It was further agreed that a certain account D, theretofore taken, of the general personal assets of Frances Devereux, filed at June Term, 1874, was correct, except that the assignees in bankruptcy insisted on an exception, to the extent that Thomas P. Devereux is chargeable only with one half the value of the slaves, being $9,995.50, with interest thereon to the amount of $9,823.57, instead of with the full amount charged; while the complainants insisted that the correctness of that account had been finally agreed to and settled at the June Term, 1874, but that otherwise the account was in all respects correct. At the November Term, 1879, the final decree was made, from which the present appeal is taken. The first seven of the declarations in that decree specifically follow the mandate of this court, and the agreement of the parties as to the state of the accounts, overruling the exception of the assignees in bankruptcy to the account D, charging Thomas P. Devereux with the value of all the slaves which came to his hands after the death of Mrs. Devereux; and in this, we think, there is no error. The decree then proceeds as follows: "8. It is further declared that the said Thomas P. Devereux never raised and appropriated the $7,500 appointed to him in trust by the will of the said Frances out of his lands conveyed to The mandate of this court was entered of rec-him by the aforesaid deed of July 3, 1839, and ord in the circuit court at the June Term, 1879; that all the annuitants provided for by said apand thereupon Louisa N. Taylor filed her peti-pointment of $7,500 are dead or have abantion praying to be made a party, for the purpose of asserting her right to receive the value of two annuities to which she claimed to be entitled, one of $50 per annum out of the fund of $7,500 bequeathed to Thomas P. Devereux in trust for herself and others; and one of $150 per annum, which, by the will of Frances Devereux, was directed to be paid out of funds arising from the sale of certain slaves and a house and lot in Chapel Hill, it being alleged in her petition that Thomas P. Devereux had sold the house and lot, received the proceeds, and converted the slaves to his own use. doned their claims, except Louisa N. Taylor, who is still living; and that none of said annuities have been paid since the first day of January, 1863, except the annuity to the said Louisa N. Taylor, which was paid by said Thomas P. Devereux up to the first day of January, 1867; and the court doth declare that there is a resulting trust for one third of said sum of $7,500, and interest thereon from the first day of January, 1863, to the plaintiffs, subject, however, to the said Louisa N. Taylor's claim for the value of her annuity of $50 per annum, one third of which value falls upon the plaintiff's share of Service of this petition was accepted, and it said resulting trust; which said claims of the was agreed that it might be heard at the same said Louisa N. and the said plaintiffs are first term, if practicable. The assignees in bank-liens upon the lands of the said Thomas P. 108 U. S. U. S., Book 27 49 777 |