not relate to the same subject, and if they did it would not be difficult to show that the words 391*] are there used rather as conferring an alternative authority than as words of synonymous signification. Be that as it may, still it is evident that the word "certificates" was used by the testatrix as referring directly to the instruments in the hands of her brother, which were given in the adjustment of her claim for the balance due to her former husband to make his pay as director-general equal to what it would have been if he had been paid in specie. Strong confirmation of that view is derived from the course pursued in the settlement of her estate and the long acquiescence of the complainants in the pretensions of the respondents and those under whom they claim. Evidence, however, of the most satisfactory character was introduced by the respondents showing that the land-warrant never was in the hands of her brother prior to the date of the will, or at any other time; but it is not deemed necessary to enter into those details, as we are all of the opinion that the land warrant, if it passed to the husband by the will, passed under the devise which gave him during his life all the land which the testatrix possessed, that it did not pass to him by the other devise, and that the decree of the circuit court dismissing the bill of complaint is correct. Decree affirmed. Is the rule different when applied to appeals? In the case of Owings v. Kincannon, 7 Pet. 399, this court says: "The appeal was given by the act of 1803, and this declares that such appeals shall be subject to the same rules, regulations and restrictions as are prescribed by law in cases of writs of error." We have then a libel filed by William A. Freeborn, James F. Freeborn, and Henry P. Gardner, a decree against them as the libelants, and an appeal from that decree in the name of William A. Freeborn & Company. In the case of the "heirs of Wilson," already cited, the Chief Justice says: "In both of the cases referred to it appears that the motions to dismiss were not made at the term, or at the time of appearance in this court; but each of the cases had been pending here for two years before the motion was made. The rule of this court, therefore, is: that where there is a substantial defect in the appeal or writ of error, the objection may be taken at any time before judgment, on the ground that the case is not legally before us, and that we have no jurisdiction to try it." Messrs. J. Pyne, S. F. Blount, and J. M. Carlisle, for appellants: The record in this cause was filed in this court Oct. 29, 1869. A motion was made at the December term, 1870, to dismiss the appeal in this cause, because it was taken after the lapse of five years from the date of the decree rendered 82*] *WILLIAM A. FREEBORN et al., as W. in the court below. A. Freeborn & Company, Appts., บ. This motion was denied. At the present term of this court, the present THE SHIP PROTECTOR, Her Tackle, etc., motion is filed to dismiss this cause for the James C. Bell, Claimant. (See S. C. "The Protector," 11 Wall. 82-88.) Defect in names of parties, when fatal to appeal. Where the titles of the parties in the appeal as allowed is, William A. Freeborn & Co. v. The Ship Protector and Owners, this defect is fatal to the jurisdiction of the court. The writ cannot be amended. [No. 83.] Argued Jan. 27, 1871. Decided Jan. 30, 1871. APPEAL from the Circuit Court of the Unit ed States, for the Southern District of Alabama. Motion to dismiss. The libel in this case was filed in the district court of the United States for the southern district of Alabama, to recover the cost of certain repairs and supplies. A decree having been entered in that court dismissing the libel, the libelants took an appeal to the circuit court, by which the said decree was affirmed, whereupon the said libelants took a further appeal to this court. The case is sufficiently stated by the court. Messrs. P. Philips and P. Hamilton, for appellees: That it is necessary that the names of all the appellants and appellees should be set forth is decided by the following cases: Deneale v. Archer, 8 Pet. 528; Wilson's Heirs v. Ins. Co. 12 Pet. 140; Smyth v. Strader, 12 How. 327; Adams v. Law, 16 How. 144. In all these, as well as in subsequent cases. the writ of error has been dismissed, because the names of all the appellants or all the appellees were not given in the writ. reason that the proceedings on appeal do not set forth the names of the parties appellant. It is answered that this motion should have been made at the first term of this court, to which the said proceedings were returnable, and is now too late. Carroll v. Dorsey, 20 How. 207 (15 L. ed. 804); Chaffee v. Hayward, 20 How. 209, 15 L. ed. 805; The Commander-in-Chief, 1 Wall. 43, 17 L. ed. 609; Bk. v. Seton, 1 Pet. 299. The proceedings on appeal may be amended by the record and proceedings in the cause. In admiralty, amendments are freely allowed. It is the settled practice in admiralty proceedings, where merits appear upon the record, but the libel is defective, to allow the party to assert his rights in a new allegation. The Adeline, 9 Cranch, 244; The Caroline, 7 Cranch, 496; The Divina Pastora, 4 Wheat. 52; The Mary Ann, 8 Wheat. 380. In Smith v. Jackson, 1 Paine (C. C.) 486, in commenting upon the 33d section of the Act of 1789, the court says: The statute gives to the circuit courts, on appeal from the district court, power to allow any amendments of defects of form occurring in the court below, which could have been amended there, or to disregard them in giving judgment. In Tibbs v. Parrot, 1 Cranch (C. C.) 177, the court says: "A declaration in the name of a firm may be amended by leave of the court, by inserting the names of the members of the firm. This does not touch the nature of the cause of action. In the case of The Venus, 1 Wheat. it is decided that, "On an appeal to the Supreme Court in an admiralty case, the cause is before that court, as if in the inferior court." The whole record and proceedings being then before this court, and the trial being de novo, all the parties in the court below, whose names are in the records and proceedings, are before the court, the libel setting forth the names of the individuals composing the firm of William A. Freeborn & Co. Penhallow v. Loone, 3 Dall. 54. All the decisions cited by the counsel of appellee were upon writs of error and, therefore, governed by the rules of the common law. By the 24th rule of this court, regulating the practice in courts of admiralty, it is among other things, provided as follows: "And new counts may be filed, and amend ments in matters of substance may be made upon motion at any time before the final decree, upon such terms as the court shall impose." See, also, Weaver v. Thompson, 1 Wall. Jr. bama. The suit was a libel against the ship for supplies and repairs. It was dismissed in the district court upon the pleadings and proofs, and the decree of dismissal affirmed on appeal, by the circuit court. It is now here on appeal from that decree. A motion has been made by the appellees to dismiss the case on the docket for want of jurisdiction. The motion is grounded upon a defect of the title of the parties in the appeal as allowed. The title is, "William A. Freeborn & Co. v. The Ship Protector and owners." This defect in a writ of error has been held fatal to the juris appeal appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error." But the case of Smith v. Clark, 12 How. 21, is more direct to the point before us. It was a motion to docket and dismiss in the case of an appeal, under the 43d rules of the court. The certificate of the clerk, upon which it was founded, described the parties as in the title above. Chief Justice Taney, in giving the opinion of the court, stated that the certificate conformed to the rule in all respects but one, and that was in the statement of the parties. The respondents were stated to be Joseph W. Clark and others, from which it appeared that there were other respondents, parties to the suit, who were not named in the certificate. He then referred to the case of a writ of error (Deneale v. Archer, 8 Pet. 526), where it was held that all the parties must be named in the writ, and the name of one or more of them, and others, were not a suficient description; and, also, to the case of Holliday v. Batson, 4 How. 645, where the same principle was applied to a writ of error docketed under the 43d rule, and observed the same reason for requiring all the parties whose interests were to be affected by the judg ment, to be named in the writ of error, applied with equal force to the case of an appeal from a decree. And the motion to docket and dis The miss for the above defect was overruled. opinion of the court in the present case is, that no distinction in respect to the question [*88 before us can be made between the case of an appeal under the act of 1803 (2 Stat. at L. 244) and of a writ of error; and that the decisions referred to directing the dismissal of the latter The motion to dismiss for want of jurisdiction granted. Mr. Justice Swayne, dissenting: I dissent from the conclusions announced by the court in this case. The defect objected to section of the judiciary act of 1789 (1 Stat. at is, in my judgment, amendable under the 32d L. 73), and I think an amendment should be permitted to be made. diction of the court since the case of Deneale v. Archer, 8 Pet. 526, down to the present time. Smyth v. Strader, 12 How. 327; Wilson v. Ins. Co. 12 Pet. 140; Davenport v. Fletcher, 16 How. 142. Nor can the writ be amended, according to repeated decisions of this court. Porter v Foley, 21 How. 393, 16 L. ed. 154; Hodge v. Williams, 22 How. 87, 16 L. ed. 237. The only question before us is, whether the same rule applies to appeals in admiralty. Originally, decrees in equity and admiralty were brought here for re-examination by a writ of error, under the 22d section of the judiciary act (1 U. S. Laws, 84). This was changed by the act of March 3, 1803, by which appeals were substituted in place of the writs of error in cases of FRANKLIN PARMALEE et al., Plffs. in Err., equity, admiralty, and prize; but the act 87*] *provides "that the appeals shall be subject to the same rules, regulations and restrictions as are prescribed in law in cases of writs of error." 2 Stat. at L. 244. In Owings v. Kincannon, 7 Pet. 403, the appeal was dismissed because all the parties to the decree below had not joined in it. Chief Justice Marshall, in delivering the opinion of the court, referred to the case of Williams v. Bk. of U. S. 11 Wheat. 414, which was a writ of error. where it was held that all the defendants must join, and applied the same rule to the case of an appeal. He cited the Act of 1803, and observed that "the language of the act which gives the I am authorized to say that Mr. Justice Bradley concurs in this dissent. v. DANIEL LAWRENCE. (See S. C. 11 Wall. 36-39.) Jurisdiction over state judgments, in what cases -certificate of state supreme court insufficient to confer jurisdiction. The conflict of the state law with the Constitution of the United States. and a decision by a state court in favor of its validity must appear on the face of the record before it can be re-examined in this court. It must be that such a question was necessarily involved in the decision, and that the state court NOTE. What the record must show upon writ of error to a state court-see notes, 63 L. R. A. 329, 471. Submitted Jan. 31, 1871. Decided Feb. 6, 1871. N ERROR to the Supreme Court of Illinois. IN The history and facts of the case sufficiently appear in the opinion of the court. Messrs. George Payson and Charles A. Gregory, for defendant in error: and interest. A cross-bill was also filed by the defendant, setting up the loan with interest at 10 per cent per annum. The answer of the defendant admitted that the transaction was a loan of money between the parties, and charged that the defendant (the plaintiff in the crossbill), at the time of the loan, took a bond from them, conditioned to pay 2 per cent per annum in addition to the interest specified in the con-. tract, making the interest 12 per cent per annum. The cause was finally heard on the cross-bill, answer, replications and proofs in the case. The superior court decreed that the defendant should pay to the plaintiff the amount of the loan remaining due, with 6 per cent interest, from the date of the last payment, but he to retain the 12 per cent already paid. The defendThe plaintiffs assign, as their sole ground of ants appealed to the supreme court, which reerror, that the supreme court of Illinois in ren- versed the decree, holding that the usurious indering the final decree in this case, rested its terest already paid should be credited on the decision on a certain statute of that state principal, and that interest should be allowed which, as plaintiffs allege, impaired the obliga- at the rate of 10 per cent. The cause was retion of their contract, and is, therefore, repug-manded to the superior court for a new trial, nant to the Constitution of the United States. where a decree was rendered in conformity with It does not appear by the record that any the above opinion, and which was afterwards such statute was brought in question in the affirmed by the supreme court. case. There is no mention of it in the pleadings nor in the evidence nor in the decree. It cannot be because it, is found in the opinion of the court below; for it has been several times decided that that opinion is no part of the record. Williams v. Norris, 12 Wheat. 117; R. Co. v. Rock, 4 Wall. 179, 18 L. ed. 382, where the printed report of the case was offered; Rector v. Ashley, 6 Wall. 142, 18 L. ed. 733; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317. Is the certificate of the presiding judge sufficient for this purpose? If it first appear from the record itself, that such a question may have arisen, then the certificate may come in, to show that it was actually raised and decided. But unless it does so appear from the record, then, no matter what may be stated in the certificate, it is not enough. This seems clearly decided in Armstrong v. Treas. etc. 16 Pet. 285, where the court fully states the principles governing cases of this sort. R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381; Lawler v. Walker, 14 How. 149. Messrs. C. Beckwith and Ayre & Kales for plaintiff in error. Mr. Justice Nelson delivered the opinion of the court: This is a motion to dismiss the case for want of jurisdiction. This suit was commenced by the plaintiff's in error, before the superior court in Chicago, against the defendant, to enforce the specific performance of a contract which embraced certain lots in Chicago, for the consideration of $50,000, in five equal annual instalments, with interest. The answer set up that the $50,000 was a loan of money to the plaintiffs, and that the premises in question had been conveyed by them to the defendant as a security for the loan, upon the payment of which the defendant had stipulated to reconvey, and tendered a reconveyance on the payment of the principal On looking through the record it will be seen, that the litigation resulted in a question as to the rate of interest to be allowed to Lawrence, the lender, according to the laws of Illinois, and that neither in the pleadings nor in the evidence, nor at the hearing in the superior court, was any question made as to the validity of any statute of the state on the ground of its repugnancy to the Constitution of the United States. This question was first made before the supreme court, on appeal. The certificate of the presiding judge shows that the objection was taken in the argument there and overruled, and furnishes the only evidence that any Federal question was raised in the case. In Lawler v. Walker, 14 How. 152, it is said that the 25th section of the judiciary act required something more definite than the certificate of the supreme court to give this court jurisdiction. The conflict of the state law with the Constitution of the United States, and a decision by a state court in favor of its validity, must appear on the face of the record before it can be re-examined in this court. It must appear in the pleadings of the suit, or from the evidence in the course of the trial, in the instructions asked for, or from exceptions taken to the rulings of the court. It must be that such a question was necessarily involved in the decision, and that the state court would not have given a judgment without deciding it. The decision in this case was approved, and applied in R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381. The certificate was as full in that case as in the present, but it was the only evidence of the fact that a Federal question had been presented. The judge, in delivering the opinion of the court in that case, observed that "it is probable that counsel in the argument of the case in the supreme court of Iowa, insisted these matters were involved, and that the Chief Justice felt bound to certify, when requested, that they were drawn in question. But if the [*39 record does not show that they were necessarily drawn in question, this court cannot take ju risdiction to reverse the decision of the highest court of a state upon the ground that counsel brought them in question in argument. We will add, if this court should entertain jurisdiction upon a certificate alone in the absence of any evidence of the question in the record, then the supreme court of the state can give the jurisdiction in every case where the question is made by counsel in the argument. The office of the certificate, as it respects the Federal question, is to make more certain and specific what is too general and indefinite in the record, but is incompetent to originate the question within the true construction of the 25th section. The motion to dismiss granted. MARGUERITE LECLAIRE and George L. Davenport, Executors of Antoine LeClaire, Deceased, et al. (See S. C. 11 Wall. 217-238.) Bona fide purchaser without notice—purchaser under quitclaim deed is not-knowledge of counsel, notice to client-exceptions-suit in assumpsit for property converted-former adjudication-substituted property-residuary devisees. One who has acquired his title by a quitclaim deed, cannot be regarded as a bona fide purchaser Knowledge of counsel in a transaction is notice to his client. without notice. If property be tortiously taken or converted, the tort feasor may be used in trespass or trover, or the injured party may waive the tort and sue in assumpsit. The defendant is not permitted to set up his tort to defeat the action, and the recovery of a judgment will bar further action ex delicto by the plaintiff. Where converted property has assumed altered forms by successive investments, the owner may follow it as far as he can trace it, and sue at law for the substituted property, or he may hold the wrongdoer liable for appropriate damages. Where a trustee has abused his trust, the cestui que trust has the option to take the original or the substituted property, and if either has passed into the hands of a bona fide purchaser without notice, then its value in money. Where the residuary devisees of land are not before the court, it cannot decree the conveyance of real estate, but the legal representatives being before it, the court can give a money decree against them, embracing the value of the land, which it might otherwise adjudge to be conveyed. [Mr. Justice MILLER did not sit in this cause.] [No. 72.] Argued Jan. 16, 1871. Decided Feb. 13, 1871. APPEAL from the Ciristri court of the United States for the of The bill in this case was filed by the appellant, in the district court of the United States for the district of Iowa, for the cancelation of a certain trust deed, and for the conveyance of certain property, and for other relief from the alleged fraud of the respondents. The facts of the case are fully stated in the opinion of the court. The larger part of the arguments, being upon questions of fact, is not given. Messrs. James M. Elwood, Jeremiah S. Black, and J. A. Wills, for apellant: NOTE.-Effect of a quitclaim deed in an otherwise perfect record title-see note, 29 L. R. A. 33. The question of fraud. This a question of law, as well as of fact. 1. As a question of law. Courts of Equity will presume fraud, from the nature of the transaction and the relation of the parties. Story, Eq. Jur. § 190; Jackson v. King, 4 Cow. 207; Arnold v. Grimes, 2 Greene (Ia.), 77. 1. What constitutes fraud in equity? Story, Eq. Jur. § 187. 2. Meaning of the rule that fraud in equity will be presumed. How is fraud to be established? Not by open acts and declarations. Concealment and secrecy are the ingredients of the crime, not open declarations and overt acts. It is clear, therefore, that fraud must be established by facts and circumstances. Waterbury v. Sturtevant, 18 Wend. 353; 1 Story, Eq. Jur. § 190. What effect is to be given to the denials in the answers? See Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 153; Wight v. Prescott, 2 Barb. 196; Waterbury v. Sturtevant (supra). These cases, we understand, settle the rule to be, that the positive denials of the answers may be overcome and outweighed by the circumstances showing fraud. As against Antoine Le Claire, independent of any fraud, the complainant is entitled to a decree under the allegations in his bill. May, being the owner of the farm and by his trust deed consenting to a sale thereof, had the right to prescribe the terms and conditions on which the same might be sold in case of his default. He did, for his own safety and security, provide that the same should be sold in tracts or parcels. The trustee had no authority to sell it in any other manner. The condition that the land should be sold in parcels must be observed by the trustee, in order to give any validity whatever to his acts in the premises. It was, so to speak, a limitation on the trust power, a prohibition to the trustee to sell in any other mode. It was a power (the power of sale) which could only be exercised in the mode, and subject to the conditions, prescribed by the instrument creating the power. Prop. 317; 4 Kent, Com. (marg.) 330, 334; 2 East, 204; Harkins v. Butler, 2 Pars. Cont. 421; Greenleaf v. Queen, 1 Pet. 138. Hill, Trust. (marg.) 478; 2 Washb. Real Under these authorities it is clear that the omission and failure of the trustee to sell in parcels amounted to a non-execution of the power. Where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with, still, if, there has not been gross negligence in the party, and compensation for the injury, occasioned by a noncompliance with the strict terms can be made in all such cases, courts of equity will interfere. The doctrine of equity is not forfeiture, but compensation, and nothing but such a decree will in such cases do entire justice between the parties. Equity will decree a specific execution, not according to the letter of the contract, if that be unconscientious, but will modify it according to the change of circumstances. Story, Eq. Jur. §§ 771, 775, 779, 796, 798, 786, 780; Bank v. Lynn, 1 Pet. 376; Champion v. Brown, 6 Johns. Ch. 398. The agreement was simply an agreement of settlement or compromise. It starts out with the proposition to compromise. It provides that May shall cancel what is due or claimed to be due from him to LeClaire, and that LeClaire shall cancel and release all claims he has against May, upon the basis of the proposition, stated in the agreement; and, in the conclusion of the proposition, May still expresses a preference for an arbitration. But LeClaire accepts May's proposal, and settles on the terms offered therein. It being an agreement of settlement, it is one of those which courts of equity will support and maintain, upon the salutary principle, that parties are the best judges of their own rights, and of the terms upon which mutual claims should be settled. 1 Story, Eq. Jur. § 131, and cases cited; §§ 150, 151. of LeClaire only exchanged the securities upon the land for the land itself. And where the parties are in a condition to perform the contract at the time of the filing of the bill or decree, substantially, notwithstanding the time, courts will decree a specific performance, if LeClaire or his assignee has continued in possession. 2 Story, Eq. Jur. §§ 776-780; Miller v. Bear, 3 Paige, Ch. 466; Brashear v. Gratz, 6 Wheat. 528. Time was not of the essence of the contract, under the stipulations of the parties. The clause relating to the removal of encumbrances, was nothing more or less than a promise on the part of May to remove his liens within a year. The contract does not provide that his failure to do so shall put an end to the contract, nor change the rights of the parties. LeClaire, by his own acts and those of his Young v. Daniels, 2 Ia. 126; Armstrong v. agents, instead of aiding, prevented the per- Pierson, 5 Ia. 317; Edgerton v. Peckham, 11 formance of the contract by May. He (May) | Paige, Ch. 352; Newl. Cont. 238-240; Brashear took all proper steps towards the performance v. Gratz (supra). of the agreement on his part, but was prevented from completing it at least, by the neglect (if not the misconduct) of LeClaire. And in such case, the efforts of May to perform will be considered as equivalent to performance. 1 Madd. Ch. Pr. 421, and cases cited. LeClaire cannot take advantage of his own wrong, either active or passive. There was part performance of the contract by the complainant. He executed his deed of Rose Bank to LeClaire. LeClaire received and took possession, has never surrendered nor offered to surrender it, but has had the use and received the profits thereof. Here was a part performance on the part of May, which entitles him to the relief asked for. It was such a performance as would have taken the case out of the statute of frauds, and entitled a party to a specific performance. 2 Story, Eq. Jur. § 761; Lowry v. Tew, 3 Barb. Ch. 407. It would be utterly unjust and at war with every principle of equity-after LeClaire has taken possession of the farm, Rose Bank, under the agreement, had the use and received the profits of it for several years, never surrendered or offered to surrender the possession to May, nor offered to pay him the profits received therefrom, and having retained the possession until May's claim, settled by their agreement, is barred by the statute of limitations—to permit him now to say that the agreement was not a compromise, and that May must recover upon the original account settled by the agreement. LeClaire, under the circumstances, did not and could not rescind the contract. He, in order to rescind, should have tendered to May the deed to Rose Bank, which May executed to him; also the possession of the farm, and the money received by him as rent of the premises. Without this, he could not rescind. Griffith v. Depew, 3 A. K. Marsh. 177; Brink v. Morton, 2 Ia. 411; Armstrong v. Pierson, 5 Ia. 317; Putnam v. Ritchie, 6 Paige, Ch. 390. Messrs. Matt. H. Carpenter and Jno. N. Rogers, for appellees: If the bill had been based on this point only, viz.: failure to sell in parcels, it would have been clearly multifarious. LeClaire and his representatives could, by no pretext, have been properly made parties to a bill to set aside the sale on this ground; nor could any of the other defendants have been joined in a bill against LeClaire, for specific performance of his agreement with May. It is argued that the trustee was imperatively required to sell "in parcels," but was left free to exercise his discretion as to the size of the parcels. According to this, the trustee was bound on the one hand to sub-divide the land, on selling, although it should be perfectly clear, as the fact was, that a sale of it in a body would be most advantageous for the said party of the first part; and, on the other hand, he was at liberty to exercise his discretion as to size of parcels, by selling half an acre separately, and the rest in a body. The true meaning is that the trustee was at liberty (not bound) to sell in parcels less than Rose Bank having been bought by LeClaire, the whole, provided that in his opinion, such May is now able and willing, as prayed in his sale would be advantageous for the grantor, in bill, by deduction of the value of the Rose Bank which case it would be necessarily also advanfarm, to perform substantially the contract, to tageous to the cestui que trust, leaving him at convey and remove the encumbrances on Rose liberty to sell in a body, if that mode should Bank in every respect, except as to the time. appear most advantageous; the controlling conEvery one of the encumbrances has been re-sideration, as to the mode of sale, being the moved or can be removed, and the estate of Le-"advantage" of the parties interested therein. Claire can hold the farm free from all encum- The language is, not "in parcels of such size," brances, and in the very condition that LeClaire etc., but "in parcels or tracts of such size," was to receive it, under his contract with May. etc. If the word "parcels" necessarily means On the other hand, LeClaire's estate is in a less than the whole, "tract" does not. situation to perform the contract on the part of LeClaire. The estate now holds the lands covered by the Davenport mortgage. The acts Singleton v. Scott, 11 Ia. 589–596. The trustee's duty (if any) as to selling in parcels, was discharged by his first offering to |