[185]

[186]

the books of the Treasury Department, the fol- | which they might be found, with an injunction
lowing sums: May 8, 1879, $13,602.71; June 8, that the lands and their proceeds should be ap-
1882, $63.47; February 7, 1884, $22,773.51; propriated to reclaiming the swamp lands; and
making a total of $36,439.69; and that, of the if, when this was accomplished, anything was
swamp land fund accruing to the State under left, to building roads and bridges over the
the Acts of 1850 and 1855, there remains due same; and lastly, the remainder to be used in
from the United States to the State, as credited building roads and bridges in other parts of the
on the books of the Treasury Department, the county. By subsequent legislation of the
following sums: May 26, 1886, $3,803.02; Sep- State, the counties were authorized to depart
tember 9, 1886, $1,110; May 2, 1887, $1,730.41; from this injunction, and to use the lands for
May 4, 1887, $489.59; making a total of $7,133.- public buildings and internal improvements;
02; (2) that the First Comptroller of the Treas- but the assent of the majority of the voters of
ury, at the dates stated in finding 1, admitted the county to such purpose was required. The
and certified the above sums to be due to the State also authorized the sale of all the lands to
State on account of the five per cent fund and the any person or corporation by a written con-
indemnity for swamp lands purchased by in- tract, to be in like manner submitted to the
dividuals within the State, but directed those vote of the county; but the sale was to be sub-
amounts to be credited on moneys due the ject to the proviso that the vendee should take
United States, as stated in finding 3; and that the lands subject to all the provisions of the
it does not appear that the state authorities had Act of Congress of 1850. Wright County, with
knowledge of this proceeding; (3) that the the assent of a majority of the voters of the
United States own coupon bonds issued by the county, having contracted in writing with the
State, amounting to $37,000, payable in 1894, Emigrant Company to sell to it all the swamp
known as the Indian Trust bonds, and also hold lands in the county, and the claim of the county
and own overdue coupons attached to those for indemnity against the United States for
bonds, representing the interest from May 1, swamp lands which had been sold by the
1874, to November 1, 1887, amounting to $31,- United States, and having executed a deed of a
080. The court gave a judgment in favor of quantity of the lands to the company, the
the claimant for the total of the two amounts of county filed a bill in equity to set aside the con-
$36,439.69 and $7,133.02, namely, $43,572.71. tract and deed, and obtained a decree to that
The contention of the United States in the effect in the circuit court. In the opinion of
court of claims was that, under section 1069 of this court, delivered by Mr. Justice Miller, the
the Revised Statutes, which provides that every proposition urged by the plaintiff in the suit
claim against the United States, cognizable by was considered, namely, that the contract was
that court, shall be forever barred unless the void on its face because it contemplated a di-
petition setting forth a statement thereof is version of the fund in violation of the original
filed in the court within six years after the claim grant. As regarded that proposition, the court
first accrues, the court had no jurisdiction in re- said: "It is not necessary to decide it in this
spect to the sum of $13,602.71, credited on the case, and we do not decide that the contract is,
books of the Treasury Department on the 8th for that reason alone, void. But we are of
of May, 1879, as a part of the five per cent fund, opinion that any purchaser of these lands from
because the first of the two petitions was not the county, or of the claim of the county to
filed until February 1, 1887. Deducting this indemnity, must be held to know that in the
sum of $13,602.71 from the $43,572.71 would hands of the county they were impressed with
leave the sum of $29,970; and it was contended an important public trust; and that, in examin-
by the United States that the claim for this sum ing into the fairness and honesty of such a
was more than covered by the set-off of the purchase, this consideration constitutes an im-
$31,080 due by the State on the coupons on the portant element of the decision." The court
Indian Trust bonds.
then proceeded, in its opinion, to hold that
the contract must be rescinded, because of
what amounted to fraud in the manner in which
it was procured, namely: that the officers and [187]
citizens of the county were ignorant of the
nature and value of what they were selling;
that the vendee was well informed in regard to
both, and withheld such information unfairly
from the officers of the county; and that there
was a provision in the contract "for a diversion
of the fund to other purposes, a gross inade-
quacy of consideration, and a successful specu
lation at the expense of the rights of the public."

The court of claims held that the two funds in question, in the treasury of the United States, were trust moneys, to be held for special purposes, at first by the United States, and by the State after a transfer to it; that the trust had not been disavowed or annulled by Congress; that it became the duty of the executive officers of the United States, in charge of the funds, to hand them over to the State as a succeeding trustee; that the credit given to the State in the Treasury Department, on its indebtedness to the United States, for the amount of the coupons on the Indian Trust bonds, was without authority of law; that, consequently, the funds were free from liability to the set-off; and that the claim of the State to the $13,602.71 was not barred by section 1069 of the Revised Stat

utes.

The provisions of the swamp land Act of 1850 have been before this court in several cases. In American Emigrant Co. v. Wright County, 97 U. S. 339 [24: 912], at October Term, 1877, the State of Iowa had, by statute, granted the swamp lands to the counties of the State in

Questions arising under the same Act of Congress of 1850, and the same legislation of Iowa, came before this court again, at October Term, 1879, in Emigrant Co. v. Adams County, 100 U. S.61 [25:563]. In that case the County of Adams had made a contract with the Emigrant Company to convey to it the county's swamp lands, and claim for indemnity against the United States on account of swamp lands which had been sold by the United States; and had given a deed in pursuance of the contract. It afterwards filed a bill to rescind the contract and

the deed, and obtained in the circuit court a de- | necessary,' room is left for the exercise, by the cree to that effect, which this court reversed. State, of a large discretion as to the extent of the The case was twice argued here. In the opin- necessity. In the present case it is not shown ion of the court, delivered by Mr. Justice Brad- by allegations in the bill, or otherwise (if such ley, it was stated that there was no sufficient a showing would be admissible), that any necesproof that the contract was procured by false sity existed for devoting the proceeds of the and fraudulent representations. It was also lands in question to the purposes of drainage. said of the Act of 1850, that by it the lands No case is shown as the basis of any complaint, "were granted to the several States in which even on the part of the General Government, they lie, for a purpose expressed on the face of much less on the part of the County of Adams, the Act; and that purpose was 'to enable the which voluntarily entered into the arrangeState to construct the necessary levees and ment complained of. Our conclusion, theredrains to reclaim them."" The opinion added: fore, is that this objection to the validity of the "Our first view was that this trust was so ex- contract cannot prevail." The opinion then plicit and controlling as to invalidate the scheme overruled the other grounds urged in favor of finally devised by the Legislature of Iowa for the plaintiff, reversed the decree below, and dithe disposal of the land, and under which the rected a decree to be entered dismissing the bill contract in question was made. But, on more without prejudice to the right of the county to mature reflection, after hearing additional ar- bring an action at law for any breach of the gument, we are satisfied that such a result did terms of the contract. not necessarily follow." The opinion then re- The provisions of the Swamp Land Act of ferred to the Act passed by the Legislature of 1850, and of the Iowa statutes in regard to the Iowa in 1858, by which it was declared that it swamp lands, were again considered by this should be competent and lawful for the coun- court in Mills County v. Burlington & M. R. R. ties owning swamp and overflowed lands to de- R. Co. 107 U. S. 557 [27:578] at October Term, vote the same, or the proceeds thereof, either 1882, the opinion of the court being delivered in whole or in part, to the erection of public by Mr. Justice Bradley. In that case refer[188] buildings for the purpose of education, for the ence was made to American Emigrant Co. v. building of bridges, roads, and highways, and Wright County, supra, and it was said that the for building institutions of learning, or for mak-contract there "was declared to be void for acing railroads through the county or counties to¦tual fraud of the grossest character," and that which such lands belonged. The opinion then proceeded: "The contract in dispute was made under this law, and our first impression was that it introduced a scheme subversive of the trust imposed upon the State by the Act of Congress; that its effect was to devote the lands and proceeds thereof to purposes different from those which the original grant was intended to secure; that it threw off, or endeavored to throw off, all public responsibility in relation to the trust; and hence that the scheme itself and the contract based upon it were void. But a reconsideration of the subject has brought us to a contrary conclusion. The argument against the validity of the scheme is that it effects a diversion of the proceeds of the lands from the objects and purposes of the congressional grant. These were declared to be to enable the State to reclaim the lands by means of levees and drains. The proviso of the second section of the Act of Congress declared that the proceeds of the lands, whether from sale or direct appropriation in kind, should be applied exclusively, as far as necessary, to these purposes. This language implies that the State was to have the full power of disposition of the lands; and only gives direction as to the application of the proceeds, and of this application only as far as necessary' to secure the object specified. It is very questionable whether the security for the application of the proceeds thus pointed out does not rest upon the good faith of the State, and whether the State may not exercise its discretion in that behalf without being liable to be called to account, and without affecting the titles to the lands disposed of. At all events, it would seem that Congress alone has the power to enforce the conditions of the grant, either by a revocation thereof, or other suitable action, in a clear case of violation of the conditions. And, as the application of the proceeds to the named objects is only prescribed 'as far as

[189]

the question as to whether the disposition of
the lands operated as a diversion of the fund,
in violation of the original grant, was not fully
considered. The opinion also referred to the
case of American Emigrant Co. v. Adams Coun-
ty, supra, and quoted a large part of the ex-
tract above given from the opinion in that case,
and then added: "Upon further consideration
of the whole subject, we are convinced that the
suggestion then made, that the application of
the proceeds of these lands to the purposes of
the grant rests upon the good faith of the State,
and that the State may exercise its discretion as
to the disposal of them, is the only correct view.
It is a matter between two sovereign powers,
and one which private parties cannot bring into
discussion. Swamp and overflowed lands are
of little value to the government of United
States, whose principal interest in them is to
dispose of them for purposes of revenue;
whereas, the State Governments, being con-
cerned in their settlement and improvement, in
the opening up of roads and other public works
through them, in the promotion of the public [190]
health by systems of drainage and embank-
ment, are far more deeply interested in having
the disposal and management of them. For
these reasons, it was a wise measure on the part
of Congress to cede these lands to the States in
which they lay, subject to the disposal of their
respective Legislatures; and, although it is
specially provided that the proceeds of such
lands shall be applied, 'as far as necessary,' to
their reclamation by means of levees and
drains, this is a duty which was imposed upon
and assumed by the States, alone, when they
accepted the grant; and whether faithfully per-
formed or not is a question between the United
States and the States; and is neither a trust fol-
lowing the lands nor a duty which private par-
ties can enforce as against the State."

These views were confirmed in the case of

[191]

Hagar v. Reclamation District, 111 U. S. 701, | to be conveyed to the State as an absolute gift,
713 [28:569, 574] at October Term, 1883, where with a direction that their proceeds shall be ap-
it was said of the Swamp Land Act of 1850 plied exclusively, as far as necessary, to the
that the appropriation of the proceeds of the purpose of reclaiming the lands. The judg
sale of the lands rested solely in the good faith ment of the State as to the necessity is para-
of the State; and that its discretion in disposing mount, and any application of the proceeds by
of them was not controlled by the condition the State to any other object is to be taken as
mentioned in the Act, as neither a contract nor the declaration of its judgment that the ap- [192]
a trust following the lands was thereby created. plication of the proceeds to the reclamation of
In the case of Louisiana v. United States, 22 the lands is not necessary. By the 2d section
Ct. Cl. 284, the State of Louisiana sued the of the Act of 1855 it is provided that the pur-
United States for claims arising under the five chase money received by the United States for
per cent Act of 1811, and under the Swamp the swamp lands sold by them shall be paid
Land Acts of 1850 and 1855, and had a judg- over to the State. There is nothing in these
ment for both claims, amounting to $71,385.83, provisions of the character of a property trust,
which was affirmed by this court, in United and nothing to prevent the application, by the
States v. Louisiana, 123 U. S. 32 [ante, 69]. State, of the swamp land fund to general pur-
In that case the United States interposed the poses. If the power exists anywhere to enforce
defense of the limitation of six years as to the any provisions attached to the grant, it resides
swamp land claim. The court of claims held in Congress, and not in the court.
that the action of the Commissioner of the Gen-
eral Land Office, under section 2 of the Act of
1855, in determining, on proof by the agent of
the State, that any of the swamp land had,
within the meaning of the Act, been sold by
the United States, so as to bring into force the
requirement that the purchase money should
be paid over to the State, was necessary to a
right of action for the money on the part of the
State; and that, as such action in that case did
not occur more than six years before the bring-
ing of the suit, the limitation prescribed by sec-
tion 1069 of the Revised Statutes did not ap-
ply. A set-off or counterclaim was interposed
in that case by the United States, they alleging
that the amount due by citizens of the State of
Louisiana to the United States for the direct
tax levied by the Act of August 5, 1861, 12 Stat.
at L. 292, was a proper subject of set-off against
the claim of the State in the suit. This con-
tention of the United States was overruled by
the court of claims, on the ground that the
State had never assumed the payment of the tax
assessed under the Act of 1861. On the ap-
peal to this court by the United States, 123 U.
S. 32 [ante, 69], it was said, in the opinion of
the court, delivered by Mr. Justice Field, that
the Statute of Limitations did not seem to have
any application to the demand arising upon the
Swamp Land Acts; and that, as the Commis-
sioner of the General Land Office had not found
and certified the amount due to the State from
the sales of swamp lands until the 30th of June,
1885, and the suit was commenced in Septem-
ber, 1886, the limitation of the statute did not
apply to the case. It was further held that the
State was not liable for the taxes assessed un-
der the Act of August 5, 1861, against the real
property of private individuals in the State,
and that the court of claims had jurisdiction of
the action. Therefore the judgment was af-
firmed.

In accordance with the views of this court in the cases above cited, it must be held that the proceeds of the swamp lands are not subject to a property trust, either in the hands of the United States or in those of the State, in such sense that the claim of the United States upon the State for the overdue coupons on the Indian Trust bonds, involved in the present case, cannot be set off against the claim of the State to the swamp land fund.

Under the Act of 1850 the swamp lands are

The same views apply to the provision as to the five per cent fund, in the Act of 1811, that it shall be applied to laying out and constructing public roads and levees in the State, "as the Legislature thereof may direct;" and, as to both the five per cent fund and the swamp land fund, we are of opinion that neither of them is of such a character that the debt due to the United States by the State of Louisiana, for the overdue coupons on the Indian Trust bonds, cannot be set off against the fund which is in the hands of the United States. This being so, it follows that the limitation of section 1069 of the Revised Statutes is a bar against the recov ery of the item of $13,602.71 of the five per cent fund, credited May 8, 1879, and that the amount of the set-off of $31,080, for coupons falling due up to November 1, 1887, on the Indian Trust bonds, is a valid set-off against the remaining $29,970, and is more than sufficient to extinguish that item.

It results from these views that the judgment of the Court of Claims must be reversed, and the case be remanded to that court, with a direction to enter a judgment in favor of the United States.

EMMA J. BLACKLOCK ET AL., Appts.,

v.

JACOB SMALL ET AL.

(See S. C. Reporter's ed. 96-105.) Jurisdiction of circuit court-action by assignee -decree dismissing suit.

1. The Circuit Court of the United States has no for the benefit of one of the defendants, named jurisdiction of a suit which is substantially by and therein, who was at the time of the commencement of the suit, and has since continued to be, a therein, against whom the substantial relief in the citizen of the same State with another defendant action is claimed.

2. An action to recover amount of a bond, and it, and a sale of the mortgaged premises, is not for a foreclosure of the mortgage given to secure within the jurisdiction of the circuit court, when brought by an assignee of the bond, in a case in which the assignor could not prosecute such a

suit.

[96]

APPEAL from a decree of the Circuit Court

Deshler v. Dodge, 57 U. S. 16 How. 631 (14:

The assignee of a chose in action may maintain a suit in the circuit court to recover possession of the specific thing, or damages for its wrongful caption or detention, though the court would have no jurisdiction of the suit if brought by assignors.

of the United States for the District of 1088). South Carolina, dismissing, on the merits, a suit to annul the payment in Confederate Treasury notes of a bond, and to re-establish the bond and the accompanying mortgage, and for payment of the bond and mortgage, and sale of the mortgaged premises. Reversed, and case remanded, with directions to dismiss the suit for want of jurisdiction.

The facts are fully stated in the opinion. Messrs. B. H. Rutledge and James Lowndes for appellants:

Small knew he was dealing with a trustee. Magwood v. R. R. Bank, 5 S. C. 391; Shaw v. Spencer, 100 Mass. 382; Lowry v. Commercial & F. Bank, Taney, C. C. Dec. 330, 333, 334, 336; Hughes v. U. S. 71 U. S. 4 Wall. 232 (18:303).

He knew that this money was not legal tender, even under the Constitution of the Confederate States. He knew it was below par.

Ward v. Smith, 74 U. S. 7 Wall. 451 (19:209); Horn v. Lockhart, 84 U. S. 17 Wall. 581 (21: 660).

The entire transaction is an absolute nullity. Hickman v. Jones, 76 U. S. 9 Wall. 201 (19: 553); Dewing v. Perdicaries, 96 U. S. 195, 196 (24: 655); McBurney v. Carson, 99 U. S. 570 (25: 381); Fretz v. Stover, 89 U. S. 22 Wall. 207 (22:771); Glasgow v. Lipse, 117 U. S. 333 (29: 902).

Statutes of Limitations do not apply to proceedings in equity.

Sullivan v. Portland & K. R. R. Co. 94 U. S. 811 (24:326); Brown v. Buena Vista County, 95 U. S. 161 (24: 423).

The rule that the Statute of Limitations runs in favor of a direct trustee from the date when he did some act which broke the trust relation, of which the cestui que trust had notice, does not apply.

Bushnell v. Kennedy, 76 U. S. 9 Wall. 391 (19: 738).

Having obtained rightful jurisdiction of the parties and the subject matter of the action for one purpose, the court will make its jurisdiction effectual for complete relief.

Ober v. Gallagher, 93 U. S. 206 (23: 831); Tayloe v. Merchants F. Ins. Co. 50 U. S. 9 How. 390 (13: 187); _Ward v. Todd, 103 U. S. 329 (26: 340); Story, Eq. § 64 a; Quattlebaum v. Black, 24 S. C. 55.

Jurisdiction is not ousted by the fact that one defendant, who has a like and several interest with the plaintiffs, is a citizen of the same State with the defendant against whom the plaintiffs make their contention.

Meyer v. Delaware R. R. Const. Co. 100 U. S. 457 (25: 593); Barney v. Baltimore, 73 U. S. 6 Wall. 282 (18:825); Williams v. Nottawa, 104 U. S. 210 (26: 719); Peninsular Iron Co. v. Stone, 121 U. S. 632 (30: 1020); Grover & B. S. M. Co. v. Florence S. M. Co. 85 U. S. 18 Wall. 553 (21: 914).

The foreclosure proceedings will be ancillary to the original suit; and such proceedings are maintainable without reference to the citizenship or residence of the parties.

Krippendorf v. Hyde, 110 U. S. 276 (28: 145); Christmas v. Russell, 81 U. S. 14 Wall. 82 (20: 763); Jones v. Andrews, 77 U. S. 10 Wall. 331 (19: 936); Pacific R. R. Co. v. Missouri Pac. R. Co. 111 U. S. 522 (28: 504); Dewey v. West Fairmount Gas Coal Co. 123 U. S. 333 (ante, 181).

Wherever a person acts or is restrained from acting by misdirection of law, which misleads Story, Eq. Jur. 1520 a; Riddle v. Riddle, 5 him into the belief that he has no rights whatRich. Eq. 31; Brockington v. Camlin, 4 Strob. ever in the premises, such omission to act canEq. 196; Moore v. Porcher, Bail. Eq. 196; Pet- not be charged against him, on a question of tus v. Clawson, 4 Rich. Eq. 101; Speidel v. Hen-laches, for the purpose of preventing him from rici, 120 U. S. 386 (30: 719).

In order that acquiescence and release or confirmation may be a good defense, the cestui que trust must be sui juris, and not feme covert or infant, must be fully acquainted with all the facts, and must be also apprised of the law, or how those facts would be dealt with if brought before a court of equity.

Lewin, Tr. 778; Hill, Tr. 382; Cockerell v. Cholmeley, 1 Russ. & M. 425; 8. C. 3 Russ. 574. A party is not estopped by silence, unless it has misled another to his hurt.

asserting his rights when he discovers the mistake, so as to bar relief in equity. In case of mistake of fact there is no doubt.

1 Story, Eq. Jur. Bigelow's ed. 1886, § 140, note 13, p. 154; Dunlop v. Ball, 6 U. S. 2 Cranch, 180 (2: 246); Marsh v. Whitmore, 88 U. S. 21 Wall. 178 (22: 482).

Messrs. James Simons and Samuel Lord, for appellees:

If one of the parties on one side of the suit is a citizen of the same State with one or more of the parties on the other side, the federal courts have no jurisdiction.

Philadelphia, W. & B. R. R. Co. v. Dubois, 79 U. S. 12 Wall. 64 (20:269); Lowndes v. Chisholm, Strawbridge v. Curtis, 7 U. S. 3 Cranch, 267 2 McCord, Ch. 463; Snell v. Atlantic F. & M. (2:435); New Orleans v. Winter, 14 U. S. 1 Ins. Co. 98 U. S. 90, 91 (25: 54, 55); Hopkins v. Wheat. 91 (4:44); Susquehanna & W. V. R.R. Mazyck, 1 Hill, Eq. 251; Marsh v. Whitmore, 88 & Coal Co. v. Blatchford, 78 U. S. 11 Wall. 173 U. S. 21 Wall. 181 (22: 482); Dunlop v. Ball, 6|(20:179); Walden v. Skinner, 101 U. S. 589 (25: U. S. 2 Cranch, 180 (2: 246); Upton v. Tribil-967); Farni v. Tesson, 66 U. S. 1 Black, 309 cock, 91 U. S. 45 (22: 203); Campbell v. Holt, 115 (17:67). U. S. 620 (29: 483). Where a party claims in the federal court When the suit is brought for a tortious tak-through an assignment of a chose in action, he ing or wrongful detention of the chattel, then must allege that the assignor, at the time suit the remedy accrues to the person who has the was brought, was a citizen of a different State right of property or of possession at the time. from that of defendant.

[97]

Bradley v. Rhine, 75 U. S. 8 Wall. 393 (19: 467) and cases cited; Morgan v. Gay, 86 U. S. 19 Wall. 81 (22:100); Susquehanna & W. V.R.R. & Coal Co. v. Blatchford, 78 U. S. 11 Wall. 172 (20: 179); Corbin v. Blackhawk County, 105 U. 8. 659 (26:1136).

The bill does not state the citizenship of Blacklock, the assignor, and that he could have maintained the suit.

Turner v. Bank of North America, 4 U. S. 4 Dall. 11 (1:719); Marshall v. Baltimore & O. R. R. Co. 57 U. S. 16 How. 340, 341 (14: 964); Dred Scott v. Sandford, 60 U. S. 19 How. 393 (15: 691); Bradley v. Rhine, 75 U. S. 8 Wall. 393 (19: 467); Peninsular Iron Co. v. Stone, 121 U. S. 631 (30: 1020); King Iron Bridge & Mfg. Co. v. Otoe County, 120 U. S. 225 (30: 623); Pepper v. Fordyce, 119 U. S. 469 (30: 435); Börs v. Preston, 111 U. S. 252 (28: 419); Grace v. American Cent. Ins. Co. 109 U. S. 278 (27: 932).

Small never made any of the payments in Confederate money, but in his check on the state bank, where he had never deposited any Confederate money up to the time of giving these checks.

Glasgow v. Lipse, 117 U. S. 335 (29:903); Donnelly v. District of Columbia, 119 U. S. 339 (30: 465).

See, as to payments in bank bills when cur-
rent, Legal Tender Case, 110 U. S. 445 (28:
213).

The claim made by this bill is a stale claim.
Smith v. Clay, 3 Bro. Ch. 639, n; Piatt v.
Vattier, 34 U. S. 9 Pet. 415, 416 (9:177); Bad- |
ger v. Badger, 69 U. S. 2 Wall. 93 (17: 838);
Maxwell v. Kennedy, 49 U. S. 8 How. 210 (12:
1051); Bowman v. Wathen, 42 U. S. 1 How.
189 (11: 97, 93); Sullivan v. Portland & K. R.
R. Co. 94 U. S. 811 (24:326); Hall v. Law, 102
U. S. 467 (26:219); Burke v. Smith, 83 U. S. 16
Wall. 401 (21:365); Godden v. Kimmell, 99
U. S. 201, 210, 212 (25: 431, 434, 435); Hunt v.
Smith, 3 Rich. Eq. 465; Hume v. Beale, 84 U.
S. 17 Wall. 336 (21: 602); Hoyt v. Sprague, 103
U. S. 636 (26: 594).

The claim is barred by the Statute of Limi-
tations.

Van Rhyn v. Vincent, 1 McCord, Ch. 310; Prescott v. Hubbell, 1 Hill, Eq. 212; Eigleberger v. Kibler, Id. 113; Farr v. Farr, Id. 387; Turnbull v. Gadsden, 2 Strobh. Eq. 13; Beck v. Searson, 8 Rich. Eq. 130; Lott v. De Graffenried, 10 Rich. Eq. 350; Killer v. McIlwain, 16 S. C. 555.

Mr. Justice Blatchford delivered the opinion of the court:

This is a bill in equity, filed on the 8th of October, 1879, in the Circuit Court of the United States for the District of South Carolina, by Emma Jane Blacklock and Mary Blacklock, citizens of Georgia, against Jacob Small, a citizen of South Carolina, Alexander Robertson, a citizen of North Carolina, and Helen Robertson Blacklock, a citizen of South Carolina.

| gage,—the mortgage covering the house and lot,
and being given to secure the payment on the
bond of the sum of $10,600, by three equal and
successive annual installments, the first one
payable on the 20th of March, 1861, with in-
terest from the date of the bond and mortgage,
payable annually; that the purchase money of
the house and lot was $16,000, of which $5,400
was paid in cash at the time; that Blacklock,
the mortgagee, after receiving from Small, on
the 19th of March, 1861, $742 for one year's in-
terest, at 7 per cent, on the bond, indorsed on
it the following assignment:

"For value received I hereby assign, transfer,
and set over all my right, title, and interest in this
bond to Alexander Robertson, in trust for chil-
dren of J. F. Blacklock. J. F. Blacklock."

That the assignee was the defendant Robertson, and the "children of J. F. Blacklock were the plaintiffs and the defendant Helen Robertson Blacklock; that Small pretended to pay the bond by making payments to Robertson as follows. on the 19th of October, 1861, $3,600 on account of principal and $147 for interest; on the 4th of April, 1862, $2,000 on account of principal and $490 for interest; and on the 10th of April, 1862, the balance of the principal and interest, making such payments in the treasury notes of the Confederate States; that upon the receipt thereof Robertson satisfied the mortgage and delivered up the bond to Small; that, at the time of the creation of the trust in the hands of Robertson, the children of Blacklock were infants; that in May, 1861, Blacklock went with the children to England, and remained there until the close of the war; that Robertson, in receiving such payments in the treasury notes of the Confederate States, violated his duty and was guilty of a breach of trust; that Small, in attempting to pay the debt in an illegal currency, with full notice of the trust, had not paid the debt; that the satisfaction of the mortgage was void, and its lien was still subsisting; and that Small was still liable for the amount due on the bond, with interest.

The prayer of the bill is that the payment of the bond in Confederate treasury notes may be disallowed; that the satisfaction of the mortgage may be annulled, and the mortgage be reestablished and declared a subsisting lien on the land; that Small may be ordered to deliver up the bond and mortgage to the plaintiffs; and that the plaintiffs may have a decree for the payment to them by Small of the amount due, and for a sale of the mortgaged premises.

Small appeared in the suit and interposed a plea that the court had no jurisdiction of the cause, because the plaintiffs as well as himself were citizens of South Carolina when the bill was filed. On issue joined on this plea, it was overruled, and Small put in an answer to the bill, as did also Robertson.

The defendant Helen Robertson Blacklock put in an answer, admitting the allegations of the bill, and averring that Robertson held the bond and mortgage as a trustee for herself The substance of the allegations of the bill and her sisters, in whom was the real and acis that, on the 20th of March, 1860, John F. tual interest therein: that the attempted payBlacklock, the father of the plaintiffs, owning ment by Small was without legal effect; that a house and lot in the city of Charleston, in the bond and mortgage were still the property the State of South Carolina, sold and conveyed of the defendant and her sisters; and that she it to the defendant Small, who, on the same joins in the prayer of the bill that the pretended day, gave back to Blacklock a bond and mort-payments of the bond, by Small to Robertson,

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