Upon these two propositions, then, and the authorities cited, the counsel for the appellees contended that the decree of the Circuit Court perpetuating the injunction should be affirmed. The only effect of such a decree being to stay the proceedings on the appellant's executions, issued under his judgments at law, and put him to his direct action to annul the sales and subject the property to their payment.

under a commission, take such testimony as
they may deem expedient or necessary.
The learned counsel has comprised his argu-
ment under three general heads.

39; Barbarin v. Saucier, 5 Martin, N. S. 361; 3 Cond. Rep. 577; Henry v. Hyde, 5 Martin, N. S. 633; 3 Cond. Rep. 689; Peet v. Morgan, 6 Martin, N. S. 137; 3 Cond. Rep. 780; Yocum v. Bullitt, 6 Martin, N. S. 324; 3 Cond. 1. The first is as to the "effect of fraud in Rep. 858; Trahan v. McManus, 2 La. Rep. contaminating and avoiding all proceedings 214; Childress v. Allen, 3 Ibid. 479; Brunet and acts, as well semi-judicial as judicial, had v. Duvergis, 5 Ibid. 126; Samory v. Herbrard, and done, contrived and procured, by fraud." 17 Ibid. 558; Laville v. Hebrard, 1 Robinson's This general principle is too indisputable to Rep. 436; Fisher v. Moore, 12 Ibid. 98. In have needed the support of the numerous cases Henry v. Hyde, and Yocum v. Bullitt, above cited in the brief. If, however, the learned referred to, the question arose, in a case exactly counsel, in stating his proposition, intended to like the one under consideration, where prop- apply the phrase "semi-judicial" to the proerty had been seized in execution, and an in- ceedings in the Probate Court of the Parish of junction had been granted to the party claim-Madison, it is only necessary to refer to article ing it by purchase, from or under the defend- 924 of the Code of Practice to show that the ant in the execution, as the former owner. courts of probate in that State have exclusive Indeed, injunction is the remedy expressly original jurisdiction of all matters touching the given by the law of Louisiana. Code of Prac- administration of the real and personal estates tice, art. 298, n. 7. of deceased persons to a larger extent, perhaps, than the orphans' courts of any other State of the Union. Their proceedings are, in the fullest sense, judicial, and unless reversed on appeal their decisions are conclusive and cannot be impeached collaterally, except, as all judicial acts may be, upon the ground of fraud. But though fraud vitiates all judicial proceedings, it is surely not necessary to remind the court that he who seeks to impeach a judgment of decree collaterally must show that he was neither a party nor a privy to it. If he stand in either of these relations he cannot be permitted to allege fraud in the judgment itself, or in the mode of proceeding by which it was procured. He can only do it directly by motion for a new trial, or appeal, or writ of error. Prudham v. Phillips, Ambler, 763; Bush v. Sheldon, 1 Day, 170, which was a judgment of an orphans' court; Peck v. Woodbridge, 3 Day, 30, are among the numerous cases upon this point, collected in 3 Cowen's Phillips on Evidence, 854, note 610. It is admitted that there is no such limitation upon the operation of the general principle, where the party al- [*160 leging the fraud is a stranger to the judgment he assails; because he has no power to reverse such judgment by appeal. But in this case the appellant was a party to all the proceedings in the Probate Court. The law of Louisiana makes all creditors of deceased persons parties to such proceedings. It is not necessary that they should be specially cited or summoned a general notice is all that is required; and the record proves that notice by advertisement was given by the judge of probates, at every stage of the proceedings, conformably to the law and practice of the State. De Ende v. Moore, 2 Martin, N. S. 336; 2 Cond. Rep. 679; La Fon's Executors v. Phillips, Ibid. 225, 644; Ancieuse v. Dugas, 3 Robinson, 453.

It was, moreover, contended that these, being the established principles of State jurisprudence, must be considered as rules of property in Louisiana; and therefore, under the repeated decisions of this court, as obligatory upon the courts of the United States as upon the State tribunals. And for this were cited 8 Wheat. 542; 12 Ibid. 162; 6 Ibid. 127; 7 Ibid. 550; 8 Ibid. 535, 542; 10 Ibid. 159; 11 Ibid. 367; 5 Cranch, 32; 9 Ibid. 98; 1 Peters, 360; 2 Howard, 619.

These were the positions and authorities on which the counsel for the appellees relied, in the argument before referred to. A printed brief, however, having since been filed, with the permission of the court, by the counsel for the appellant, he prays leave to subjoin a few additional remarks.

The greater part of this brief consists of a very labored analysis of the record of the Probate Court, exhibited with the bill, with 159*] intent to show "collusion, combination, and fraud," on the part of the executor of James S. Douglas and the appellees, as the purchasers of the property in controversy. Whether the learned counsel has failed or succeeded in this attempt is not material now to consider, because such an investigation assumes the very question now before the court; that is to say, whether, in answer to a bill praying an injunction to restrain him from levying executions upon judgments recovered against a third person, on property the title and possession of which are alleged to be in the appellees, by purchase at a judicial sale, under decrees of a court of unquestioned jurisdiction, it is competent to the appellant to aver that such decrees were procured by "collusion, combination, and fraud." Should this court sustain such an answer, in such a proceeding, it is presumed that the case would be remanded to the Circuit Court, where the appellees will have the right, under the agreement before referred to, to join issue on those allegations in the answer, and,

But further, the appellant was not merely a party in contemplation of law, but an actor in these proceedings. The record shows that on the 3d of May, 1841, he appeared by counsel, alleging himself a creditor, and filed an "opposition" to the homologation of the several accounts of the executor, averring them to be entirely incorrect and illegal, and praying that they might be disallowed, and that the executor should be ordered to file an amended account in which the appellant ought to be placed as a creditor for the amount of his judgments in the Circuit Court. But he neglected to sup

port his opposition by any evidence whatever, and the court very properly overruled and dismissed it with costs. It is true that the appellant, in his answer, states that the attorney had no instructions or authority to file such a petition; and the attorney himself acknowledges that fact. Had this disavowal been made in the Probate Court in proper time, supported by affidavit, the court no doubt would have noticed it. But surely it cannot be contended that it can now be made, in a collateral proceeding, and before a different tribunal. In contemplation of law, therefore, and in point of fact, the appellant was a party to the proceedings, from which he took no appeal, though the law allowed him one, but by his executions attempted, in the language of one of the cases, "to seize at once, and by short hand," property which in the progress of those proceedings the appellees had purchased under the sanction of judicial decrees. If he had taken an appeal it would have been competent for him to allege the frauds of which he now complains, and, establishing them by proof, to set aside the whole proceedings. But that he cannot do collaterally, as he has attempted in his answer.

"remit or refer" the judgments recovered by the appellant against the executor of James S. Douglas to the tribunals of the State of Loui siana for execution or satisfaction; or to interfere with the rightful jurisdiction of the Circuit Court over those judgments; or to claim that it should be regulated by any other process or execution than that which is prescribed by the laws of the United States for their courts. The appellees do not deny that the writs of fieri facias issued regularly upon the judgments, and that the marshal acted regularly in the performance of his duty, according to their mandate. Their only complaint is, that in obedience, not to the writs, but to the orders and directions of the appellant, the marshal has seized and taken in execution their property, instead of the property of the defendant in the judg. ments; and their only claim is to have the ques. tion of property tried by the law of Louisiana; and not before the tribunals of that State, if the appellant should prefer the forum which he at first selected; but if in that forum, by the law of that State, which, as it had been shown, does not permit a party to take property in execution, claimed by a third person, upon a sug It may be remarked, that the appellant in- gestion or allegation of fraud, without first stituted his suits in the Circuit Court, after the establishing the fraud by judicial decision. letters testamentary had been granted by the This the appellees respectfully insist that they Court of Probates to Stephen Douglas, which have a clear right to ask, under the provision was on the 26th of May, 1838; at all events, the of the thirty-fourth section of the Judiciary judgments were subsequent to the grant of the Act of 1789, in the exposition *of which [*162 letters. Why did he seek the jurisdiction of Chief Justice Marshall, delivering the opinion the Circuit Court? Not from ignorance, because of the Court in Wayman v. Southard, 10 be states in his answer that he "had expressly Wheat. 25, and speaking of judgments in the ordered his agent to avoid the State courts al-courts of the United States, puts the very case together, for reasons sufficient, and to sue in in the following words: "If an officer takes the 161] the federal courts only." What rea- property of A to satisfy an execution against sons? The jurisdiction of the probate courts B, and a suit be brought by A, the question of in Louisiana has been shown, and it is so ex-property must depend entirely on the law of clusive that it has been repeatedly decided by the State." the Supreme Court of that State, that creditors 3. It is lastly contended, that the appellees have no right to enforce their claims by action were incapable in law of becoming the pur. in any other forum (De Ende v. Moore, 2 Mar- chasers of the property they now claim; and tin, N. S. 336; 2 Cond. Rep. 675; La. Fon's that, therefore, no title passed to them under Executors v. Phillips, Ibid. 225; Ibid. 644); the sales made in virtue of the two decrees of and for this just and obvious reason, that such the Court of Probates. This incapacity, it is a right would have a tendency to defeat one of said, arose from the fact that Emeline Douglas, the great objects of all testamentary systems, who has since intermarried with Maxwell W. an equal distribution of assets among all the Bland, was at that time the tutrix of her minor creditors of the decedent. This was exactly children, and that Archibald Douglas, the other what the appellant most desired to avoid. It purchaser, was their under-tutor, by the apwas to overreach the other creditors-to obtain pointment of the Court of Probates. This the more than his just dividend at their expense-record itself shows, and is admitted. that, in fraud of the law of the State, he brought It is, undoubtedly, a general rule that all qui his suits in the Circuit Court. If he fails in the negotia aliena gerunt are incapable of purchasattempt, the consequences are of his own seeking, for their own benefit, property in which ing. But he has still a locus penitentiæ, for, by the Civil Code of Louisiana, articles 1060, 1061, creditors who omit or neglect to present their claims are entitled, even after final distribution, to an equal dividend with those who have been more diligent; to be made up by contribution from the legatees in the first instance, and if there are none, or the amount of legacies be insufficient, then by the creditors who have been paid, so as to put all upon equality.

2. The second proposition of the counsel for the appellant may be safely assented to. The plenary power of the courts of the United States to carry into execution and full effect their judgments and decrees is unquestioned. Nor has any attempt been made, in this case, to

those they represent are interested. And this not on the ground of fraud, but because the law will not allow one, sustaining the character of an agent, to create in himself an interest opposite to that of his principal. And it is admitted that this rule has been applied to executors, administrators, trustees, guardians, tutors, curators, judicial officers, and all other persons, who, in any respect, as agents, have a concern in the disposition and sale of the property of others, whether the sale is public or private, or judicial, bona fide, or fraudulent in point of fact.

But this rule is not inflexible. Where it is for the interests of the parties concerned, a court will permit a person, standing in any of those

relations, to become a purchaser. And, therefore, it has been frequently held that a purchase made by a trustee, under judicial sanction and approbation, was not on that ground to be questioned or set aside. Campbell v. Walker, 5 Vesey, Jun. 678; Prevost v. Gratz, 1 Peters' C. C. Rep. 368; Jackson v. Woolsey, 11 Johns. 446; Gallatin v. Cunningham, 8 Cowen, 361.

20.

ments and executions, which Ford had recovered in the Circuit Court of the United States against one Stephen Douglas, as executor of J. S. Douglas, deceased.

The judgments amounted to some $18,000, and the marshal had levied upon two plantations, and the slaves thereon, of which the testator, J. S. Douglas, had died seized and possessed.

ex

So in Louisiana, where the general rule unquestionably prevails, it has been expressly held The bill set forth that Stephen Douglass, that a mother, being tutrix of minor heirs, against whom the judgments had been remight lawfully become a purchaser at a pro- covered, neither in his own right nor as bate sale of property belonging to her deceased ecutor of J. S. Douglas, deceased, had any husband's succession, if sanctioned by the judge title to or interest in the plantations and slaves within whose jurisdiction the minors have been which had been seized under and by virtue of brought; and that this sanction may be given the said executions; and that the same formed before or after the sale. McCarty v. Steam no part or portion of the succession of the testaCotton Press Company, 5 Louisiana Rep. 16, tor in the hands of the said executors to be administered. But that the whole of the said Now, the record in this case shows that both plantations and slaves, including the crops of sales were preceded by family meetings, to de- cotton, and all other things thereon, were the liberate and advise touching the interests of the "true and lawful property of the com- [*164 minors; that they recommended the sales as plainants; that they were in the lawful possession necessary and expedient; that their proceedings of the same, and had been for a long time bewere homologated by the judge, who there- fore the issuing of the executions and seizure upon ordered and decreed the sales to be complained of; and had acquired the said 163*] *made; that the property was appraised property, and the title thereto, at a probate sale by sworn appraisers; notice of the time and of all the property belonging to the estate and place of sale regularly given; and, finally, succession of the said testator-which sale was that the sales were made by the judge of pro-lawfully made, and vested in the complainants bates, ex officio, and in person, and by him a good and valid title. All which would upstruck off and adjudicated to the two appellees by name, they being the actual and highest bidders for prices above the appraisements. There can be no doubt, therefore, that both purchases were made with the knowledge, approbation, and sanction of the Court of Probates, and were recognized as valid in the subsequent proceed ings of the succession; and, on the authority of the decision above referred to, were valid by the law of Louisiana, which, of course, must be obligatory in this case upon every other tribunal.

pear by the proces verbal of the said adjudications, and the mortuary proceedings annexed to and forming a part of the bill.

An injunction was granted, in pursuance of the prayer of the bill, staying all proceedings on the judgments rendered in the three several suits, and also on the executions issued thereon against the property.

Christopher Ford, the adjudged creditor, in answer to the bill, denied the validity of the probate sales of the plantations and slaves to the complainants; and charged that they were effected, and the pretended title thereto acquired, by fraud and covin between the execu

But further, if there had been no such judicial sanction, it is not competent to the appellant to make the objection. A purchase by a trustor, Stephen Douglas, and the executrix, the tee, or other fiduciary, is not absolutely void, widow of the testator, and one of the complainbut voidable only. The heirs in this case are ants, for the purpose of hindering and defraudthe cestuis que trust, and it is their right, and ing the creditors of the estate; that in furthernot the right of the appellant, who is a creditor ance of this design a large amount of simulated only, and a creditor who has renounced all and fraudulent claims of the executor and exbenefit under these mortuary proceedings, to ecutrix were presented against the succession, call in question, or set aside, the sales made to to wit, $53,000 and upwards in favor of the the appellees. Winchester v. Cain, 1 Robin- former, and $76,000 and upwards in favor of son, 421; Prevost v. Gratz, 1 Peters's C. C. the latter, which were received and allowed by Rep. 368, Wilson v. Troup, 2 Cowen, 195, 238; the Probate Court without any vouchers or leOpinion of Sutherland, J.; Davoue v. Fan- gal evidence of the genuineness of the debts ning, 2 Johns. Ch. Rep. 252; Jackson v. Wool-against the estate; that these simulated and sey, 11 Johns. 446; Harrington v. Brown, 5 fraudulent claims were made the foundation of Pick. 519; Denn v. McKnight, 6 Halst. 385; an application to the said Probate Court for an Gallatin v. Cunningham, 8 Cowen, 379, per order to sell the two plantations, and slaves Colden, Senator. thereon, under whom the widow and one Archibald Douglas became the purchasers at the probate sale; that neither had paid any part of the purchase money to the executor or Probate Court; and which was the only title of the complainants to the property in question, upon which the defendant had caused the executions to be levied.

Mr. Justice Nelson delivered the opinion of the court:

This is an appeal from a decree of the Circuit Court of the United States, held in and for the Eastern District of the State of Louisiana.

The complainants below, the appellees here, filed their bill against Christopher Ford, the In confirmation of the fraud, thus alleged in appellant, and Robertson, the marshal of the the probate sales in the parish of Madison and district, for the purpose of obtaining injunc-State of Louisiana, the defendant further tions to stay proceedings upon the several judg-charges, that the testator died seized and pos

for that purpose; and that this step, on the part of the judgment creditors, was essential, upon the established law of the State of Louisiana, *before he could subject the property [*166 to the satisfaction of his judgment.

sessed, also, of a large plantation and slaves | full and peaceable possession and enjoyment of and personal property therein situate in the the property until the conveyance was vacated County of Claiborne and State of Mississippi, and set aside by a direct proceeding instituted inventoried at upwards of $70,000, besides notes and accounts to the amount of $161,000 and upwards; that the said plantations and slaves were, on application of Stephen Douglas, the executor, to the Probate Court in that State, and an order for that purpose obtained, sold and purchased in by the widow and executrix for about the sum of $40,000, and that the personal estate of $161,000 and upwards, of notes and accounts, were not, and have not been, accounted for by the executor to the Court of Probate.

We have, accordingly, looked into the law of that State on this subject, and find the principle contended for well settled and uniformly applied by its courts in cases like the present. The judgment creditor is not permitted to treat a conveyance from the defendant in the judg. ment made by authentic act, or in pursuance of 165] In short, according to the answer of a judicial sale of the succession by a probate the defendant, the estate and succession of the judge, as null and void, and to seize and sell deceased debtor, inventoried at about the sum the property which had thus passed to the venof $300.000 and for aught that appears availa- dee. The law requires that he should bring ble to that amount, has been sold and transferred an action to set the alienation aside, and sucthrough the instrumentality and agency of fam-ceed in the same, before he can levy his execuily connections, under color of proceedings apparently in due form in the Probate Court, into the hands of the widow and a brother of the deceased, without adequate consideration, if consideration at all, and with the intent to hinder, delay, and defraud the creditors of the estate and particularly the defendant.

tion. And so firmly settled and fixed is this principle in the jurisprudence of Louisiana, as a rule of property, and as administered in the courts of that State, that even if the sale and conveyance by authentic act, or in pursuance of a judicial sale, are confessedly fraudulent and voiù, still no title passes to a purchaser unThe complainants excepted to the answer der the judgment and execution, not a creditor filed by the defendant, because the matters and of the vender, so as to enable him to attack the doings set forth therein could not, in law, be conveyance and obtain possession of the propinquired into in the present suit, or proceed-erty. In effect the sale, if permitted to take ings instituted by the said complainants, and place, is null and void, and passes no title. prayed that they might have the benefit of their Henry v. Hyde, 5 Martin, N. S. 633; Yocum injunction, and that it might be made perpetual. v. Bullitt, 6 Ibid. 324; Peet v. Morgan, 6 Ibid. And thereupon it was agreed that the case 137; Childress v. Allen, 3 Louisiana Rep. 477; might be set down for argument on the matters Brunet v. Duvergis, 5 Ibid. 124; Samory v. of law arising on the bill and answer; and that Hebrard et al. 17 Ibid. 558. if the judgment of the court in matters of law should be for the defendant, the complainants might join issue on the fact, and testimony be taken in the usual manner.

The case of Yocum v. Bullitt et al., among many above referred to, is like the one before us.

The court there say: "The record shows that the slaves had been conveyed by the defendant in the execution by a sale under the private signature recorded in the office of the parish judge of St. Landry, where the sale was made. If the sale was fraudulent it must be regularly set aside by a suit instituted for that

The court, after argument of counsel, decreed that the exception of the complainants to the defendant's answer was well taken, and gave leave to answer over, which was declined; and, therefore, the court adjudged and decreed that the injunction therefore awarded in the case should be made perpetual; and it was fur-purpose; that it was not less a sale and binding ther adjudged and decreed that complainants recover the costs of suit, without prejudice to the right of the defendant to any action he might think proper.

must be brought to annul the conveyance."

upon third parties until declared null in an action which the law gives (Curia Phil. Revocatoria, n. 2); that the possession of the vendee was a legal one, until avoided in due course of The decision of the court below, and the law." The court further remarked, that view which we have taken of the case here, do "The same point had been determined at the not involve the question, whether the matters preceding term, in which it had been held that set forth in the answer sufficiently established a conveyance alleged to be fraudulent could the fact that a fraud had been committed by not be tested by the seizure of the property or the complainants against creditors, in the sev-estate belonging to the vendor, but an action eral sales and transfers of the property in question, through the instrumentality of the Prohate Court, nor, as it respects the effect of the fraud, if established, upon the title derived under these sales. If the case depended upon the decision of these questions, we entertain little doubt as to the judgment that should be given. The ground of the decision below, and of the argument here, is, that the complainants were not bound to answer the allegations of fraud against their title, in the aspect in which the case was presented to the court; that a title derived under a public sale, in due form of law, by the probate judge, protected them in the

The principle runs through all the cases in the books of reports in that State, and has its foundation in the Civil Code (art. 1965, 1973, 1984), and in the Code of Practice (sec. 3, art. 298, 301, 604, 607), and in Stein v. Gibbons & Irby, 16 Louisiana Rep. 103. And from the course of decision on the subject it is to be regarded not merely as a rule of practice, or mode of proceeding in the enforcement of civil rights, which would not be binding upon this court, but as a rule of property that affects the title and estate of the vendee, and cannot, [*167 therefore, be dispensed with without disturb

ing one of the securities upon which the rights of property depend. It gives strength and stability to its possession and enjoyment, by forbidding the violation of either, except upon leveloped in the pleadings, that the case should gal proceedings properly instituted for the purpose. Neither can be disturbed, except by judgment of law. For this purpose the appropriate action is given, providing for the secession of all contracts, as well as for revoking all judgments when founded in fraud of the rights of creditors.

In this court, a bill filed in the equity code is the appropriate remedy to set aside the conveyance. In the present case a cross bill should have been filed, setting forth the matters contained in the answer of the defendant. The vendees would then have had an opportunity to answer the allegations of fraud charged in the bill, and, if denied, the parties could have gone to their proofs, and the case disposed of upon the merits.

It is said that in some of the western States an answer like the one in question would be regarded by their courts in the nature of a cross bill, upon which to found proceedings for the purpose of setting aside the fraudulent convey ance. But the practice in this court is other wise, and more in conformity with the established course of proceeding in a court of equity.

We are of opinion, therefore, that the appellant mistook his rights in attempting to raise the question of fraud in the probate sales in his answer to the injunction bill; and that instead thereof he should have filed a cross bill, and have thus instituted a direct proceeding for the purpose of setting aside the sales and subjecting the property to his judgments and executions; and that in this respect, and to this extent, the decree of the court below was correct. But on looking into the decree, we are apprehensive that it has been carried further than

all events, we think it due to the appellant, and to justice, looking at the nature and character of the transaction and proceeding as de be cleared of all doubts and dispute upon this point. We shall therefore reverse the decree, and remit the proceedings to the court below, with directions that all further proceedings on the three judgments and executions be stayed, as it respects the property seized and in ques tion, but that the appellant have liberty to file a cross bill, and take such further proceedings thereon as he may be advised.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court, that the decree of the said Cir. cuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to that court that all further proceedings on the three judgments and executions be stayed, as it respects the property seized and in question; but that the appellant have liberty to file a cross bill, and to take such further proceedings thereon as he may be advised; and that such further proceedings be had in this cause, in conformity to the opinion of this court, as to law and justice shall appertain.

HEZEKIAH H. GEAR, Appellant,

V.

THOMAS J. PARISH.

question of fact.

the assertion of the principle which we are dis- Judgment by confession, force and effect of— posed to uphold, and which may seriously embarrass the appellant in the pursuit of a remedy that is yet clearly open to him.

The injunction issued, on filing the bill of complainants, commanded the appellant to desist from all further proceedings on his three judgments, or on the executions issued against the property; and the court, on the coming in of the answer, has decreed that the same be made perpetual. And further, that the complainants recover the costs of suit, without prejudice to the right of the defendant to any action he may think proper.

It is at least a matter of doubt, and might be of litigation hereafter, whether, upon the broad and absolute terms of the decree used in enjoining the proceedings, the party is not concluded from further proceedings against the property in question, founded upon these judgments and executions.

In this case, the pleadings and proofs show that a mortgage executed by the debtor to the creditor was really for an unascertained balance of accounts, which the sum named in the mortgage was supposed to be sufficient to cover.

As it did not prove to be sufficient. and the creditor obtained a judgment against the debtor for the residue, the payment of the sum named in the mortgage was no reason for an injunction to stay proceedings upon the judgment.

THIS

HIS was an appeal from the judgment of The Supreme Court of the Territory of Wisconsin, sitting as a court of chancery.

Parish filed a bill in the District Court of Iowa County, Territory of Wisconsin, for the purpose of compelling Gear to enter satisfaction of a certain mortgage executed by the former to him, or to reconvey the premises therein, charging, that it had been fully paid and satisfied; and for the purpose, also, of a perpetual stay of a certain judgment [*169 confessed, and entered up in favor of Gear against Parish.

They must constitute the foundation of his right and title, upon filing a cross bill, to any relief, that he may hereafter show himself en168*] titled to. The saving clause may not be regarded as necessarily leaving a proceeding The mortgage was executed on the 27th of of this description open to him. A question April, 1836, and was given to secure the paymight also be raised, whether the judgments ment of $4,200, four months after date; and are not so effectually enjoined as to prevent the bill charged that the whole amount, with their enforcement against property of the judg-interest thereon, had been paid on the 1st of ment debtor not in controversy in this suit. At August, thereafter, and a receipt taken for the