In such a case, the court does not exercise an auxiliary jurisdiction to aid legal process, and consequently it is not necessary that the creditor should be in a condition to levy an execution, if the

fraudulent obstacle should be removed.

It is proper to make a prior incumbrancer, who holds the legal title, a party to the bill, in order that the whole title may be sold under the decree; for the purpose of such a decree, the prior incum brancer is a necessary party; but the court may order a sale subject to the incumbrance, without having the prior incumbrancer before it, and in fit cases it will do so.

If the prior incumbrancer is out of the jurisdiction, or cannot be joined without defeating it, it is a fit cause to dispense with his presence, and order sale subject to his incumbrance, which will not be affected by the decree.

They averred that the $20,000 thus mentioned, was paid from the securities deposited by Leroy Pope, and that the only debt really incurred by William H. Pope, was that for $29,290.90. This debt the plaintiffs admitted to be a charge on the property, and they did not contest it. They charged, however, that the securities to the Solicitor of the Treasury were designed by the grantor (William H. Pope), as a fraud upon the creditors of Leroy Pope.

The death of Leroy Pope was alleged to have occurred in 1844, and the appointment of Breck, as administrator, in 1844.

The prayer of the bill was, that the convey.

trict of Alabama.

for the

The bill was originally filed in the names of John Hagan, of New Orleans, and a citizen of the State of Louisiana, and Thomas Barrett, of New Orleans, and a citizen of the State of Louisiana, formerly commission merchants and partners, trading under the firm, name and style of John Hagan & Co., complainants, against William H. Pope, of Huntsville, and a citizen of the State of Alabama, Samuel Breck, of Huntsville, and a citizen of the State of Alabama, the said Breck being the admin:strator of the estate of Leroy Pope, who in his lifetime resided in Huntsville, and was a citi zen of the State of Alabama, and Charles B. Penrose, of Washington City, and a citizen of the District of Columbia, and successor in office of Virgil Maxcy, who in his lifetime resided in Washington City, and was a citizen of the District of Columbia, and Solicitor of the Treasury of the United States.

The suit was commenced in February, 1846. The plaintiffs were judgment creditors of Le roy Pope, by a judgment rendered in April, 1834, upon which an execution in October, 1834, was returned, "No property found."

The plaintiffs sought to obtain satisfaction of this judgment, from property which they allege the said Leroy Pope conveyed fraudulently to his son William H. Pope, the defendant.

This property was conveyed, March, 1834, by 30] Leroy Pope to *William H. Pope, and upon considerations which the plaintiffs alleged to be colorable and inadequate.

The property thus conveyed, was charged to have been the whole estate of the said Leroy, and William H. Pope was charged to have been, before that time, without property, and to have had no means of payment for this.

The plaintiffs alleged that the property was never delivered to the "exclusive possession" of William H. Pope, but "remained as much in the possession of the said Leroy as the said William; and that the said Leroy and William enjoyed the proceeds and profits jointly."

They allege that William H. Pope, in March, 1834, conveyed the land and slaves to the Solieitor of the Treasury in mortgage, to secure a debt due to the United States by the said Leroy Pope, of $29,290.90, which William H. Pope, at that date assumed, and for which he gave his note; and that at the same date he guaranteed to the United States a debt of $20,

of the United States, the remainder of the property should be appropriated to satisfy the debt of the plaintiffs. Process was prayed against William H. Pope and Samuel Breck, administrators of Leroy Pope, and the Solicitor of the Treasury (Penrose), a citizen of the District of Columbia.

The defendants, Breck and Pope, demurred to the bill; the demurrer was allowed by the District Court, and the bill was dismissed.

An appeal from this decree of dismissal brought the case up to this court. It was ar gued by Mr. Johnson for the appellant, and Mr. J. A. Campbell for the appellees.

As the demurrer was sustained in the court below, the points before this court to be argued were, the reasons for dismissing the bill and sustaining the demurrer. These were stated by Mr. Campbell, as follows, and it is sufficient to state the points and authorities.

*I. That the jurisdiction of the Court [*31 of Chancery to set aside conveyances executed by a failing debtor to defraud creditors, is not an original and independent jurisdiction of that court, but is an auxiliary and limited jurisdic tion. The creditor must show that the remedies at law have been exhausted-that there is an obstruction which can only be removed by the aid of the Court of Chancery, and that his cause is so situated at law, that, upon the interposition of the court in the manner sought, he could immediately enforce the right he claims. 3 Mylne & Craig, 407; 11 S. & M. 366; 8 Barb. N. Y. 593; 7 Ala. 319, 928; 1 Hill's So. Car. 297, 307; 20 Johns. 554; 2 Rand. 384; 1 Paige, 388.

II. The bill shows in this case three facts sufficient to have determined the lien of the judgment against Leroy Pope, under the laws of the United States, and the State of Alabama.

Five years had elapsed from the 3d of March, 1839, before the filing of the bill. The Act of Congress of that date determined the lien. 5 Stat. at Large, 338.

Ten years had elapsed from the judgment and return of the last execution. Clay's Digest, 206, 207, secs. 28, 29; 5 Ala. 188; 18 Ala. 675; 19 Ala. 207.

The death of Leroy Pope put an end to the lien of the judgment and the right to issue execution. Bsuh v. Jones, 13 Ala. 167.

III. The plaintiff sets forth the conveyance of

holding all the property of the deceased, which in equity should be applied to the payment of this debt, and the bill prays that the debt may be paid out of this fund. That a single creditor may maintain a bill against an admin34*] istrator of a deceased debtor, for a discovery of assets and the payment of his debt, there can be no doubt. That, in some cases, he may join with the administrator a third person, who is in possession of property which is amenable to the payment of the debt, is also clear. The instances in which it has been actually held that such third person might be joined, are chiefly cases of collusion between the administrator and the third person possessed of assets, insolvency of the administrator, and where the third person was the surviving party of the deceased. Utterson v. Mair, 2 Ves. Jr. 95; Alsager v. Rowley, 6 Ves. 748; Burroughs v. Elton, 11 Ves. 29; Gedge v. Traill, 1 Russ. & M. 281; Long v. Majestre, 1 Johns. Ch. 306. But it will be found that the equitable right of the creditor to join a third person, and have a discovery and an appropriation of assets held by him, has never been limited to these particular cases.

For, while it is generally agreed that some special case must be made, it is also declared in all the cases, that what is to constitute it has not been limited by any precise and rigid rule. In Hoiland v. Prior, 1 M. & K. 240, Lord Brougham applied the rule to the case of a representative of a deceased representative, without any suggestion of collusion between him and the present representative. In Simpson v. Vaughn, 2 Atk. 33, Lord Hardwicke said: "It has been said at the bar, that you may make any person a defendant that you apprehend has possessed himself of assets upon which you have a lien. But this certainly cannot be laid down as a general rule; for it would be of dangerous consequence to insist that you can make any person a defendant who has assets, unless you can show to the court he denies that he has assets, or applies them improperly." Considering, then, that some special and sufficient reasons must be shown for proceeding against a third person, jointly with the administrator, the inquiry is, whether this bill does not contain those reasons; and we are of opinion it does.

It appears, from the statements in the bill, that William H. Pope is in possession of all the assets of the deceased debtor, both real and personal, holding them under conveyances made to him by the deceased, absolute in form, but accompanied by secret trusts in favor of the grantor, designed to defraud this particular creditor, and prevent him from obtaining pay ment of his judgment, and that this fraudulent design has thus far been successfully executed.

228. It is true he is the representative of creditors, as well as of the next of kin, and in the former capacity might be able to make good his claim to a sufficient amount of these personal assets to enable him to pay the debts. Holland v. Cruft, 20 Pick. 321. But the impracticability of taking an account of the debts at law, and proportioning the recovery to the amount required to pay them, would render a resort to equity indispensable to do entire justice between all parties, even if the assets were legal in their nature. If this bill had contained an allegation that the administrator had been requested to sue, and had refused, the case would be free from all doubt; and, upon the facts averred in the bill, we do not think such a request necessary; because it does appear that about two years elapsed after the death of Leroy Pope before this bill was filed, and the administrator took no step to reduce these assets to possession; because, when this bill was filed, he resists it by a demurrer, relying on the Statute of Limitations; because it must be admitted to have been doubtful how far he had a remedy, without the concurrence of any creditor; and chiefly because there is no danger of interfering with the due course of administrations, or taking from administrators their proper control over suits for the recovery of assets, by holding that a creditor may file a bill against the administrator and the fraudulent grantee of deceased debtor, to subject the property fraudulently conveyed to the payment of the debt. It comes within the case put by Lord Hardwicke; for here this specific property is amenable to the claim of this creditor, and in the sense in which he employs the word, the creditor had a lien upon these assets; and it does appear to the court, that the party holding them both denies that they are assets and applies them improperly, for he claims them as his own, and is endeavoring to defeat a just creditor by an assertion of a title invalid as against him.

In this view of the case, it is not essential that the creditor cannot proceed at law until after a revival of the judgment by a scire facias. In Burroughs v. Elton, 11 Ves. 36, 37, Lord Eldon had occasion to consider the force of this objection in a similar case. It was a bill to reach real assets in the hands of a surviving partner. The complainant's judgment was upwards of seventeen years old, and no step had been taken to revive it against the administrator or the heir. His decision, in accordance with two previous cases to which he refers, was, that such a creditor could sustain the bill, though it might be necessary to direct him to proceed at law to revive his judgment.

and as it was the object of the conveyances to prevent them from being applied to the benefit of creditors, we are of opinion there is no presumption that anything arising from this joint possession ever came to the hands of the ad- | ministrator, and therefore, that a demand on him would have been a vain act, which the creditor was not compelled to do.

One other ground on which the demurrer has been rested, requires notice. The bill alleges that after the fraudulent conveyances to William H. Pope had been made, he mortgaged the property to Virgil Maxcy, as Solicitor of the Treasury of the United States, to secure the debt of Leroy Pope which William H. Pope assumed to pay, and it avers that this debt has been in part paid by means described in the bill. Virgil Maxcy and, subsequently when he went out of office, his successor, Charles B. Penrose, were named as parties to the bill, but they were out of the jurisdiction, no process was served on either of them, and neither ever appeared or answered. The bill prays that William H. Pope may be compelled to pay to the United States the balance due to them, out of the property in question, and that the residue may be subjected to the payment of the complainant's debt, and for other and further relief.

Under the Act of Congress of the 28th of February, 1839 (5 Stat. at Large, 321, sec. 1), it does not defeat the jurisdiction of the court that a person named as defendant is not an inhabitant of or found within the district where the suit is brought; the court may still adjudicate between the parties who are properly before it, and the absent parties are not to be concluded or affected by the decree.

It is obvious, however, that there may be cases in which the court cannot adjudicate between the parties who are regularly before it, for the reason that it cannot bind those who are absent. Where no relief can be given with out taking an account between an absent party and one before the court, though the defect of parties may not defeat the jurisdiction, strictly speaking, yet the court will make no decree in favor of the complainant.

37*] *The case before us is not one of this character; for although the whole of the relief specially prayed for cannot be granted in the particular mode there indicated, because the United States not being a party, no account can be taken of the debt due to them from Leroy Pope or William H. Pope, yet, subject to the incumbrance of this debt, and without affect ing it in any manner, the property may be ap propriated to the payment of the complainant's

debt.

It is true, that in Finley v. The Bank of the

United States, 11 Wheat. 306, which was a bill to foreclose a mortgage by sale, Chief Justice Marshall says: "It cannot be doubted that the prior mortgagee ought regularly to have been a party defendant, and that had the exist. ence of his mortgage been known to the court, no decree ought to have been pronounced in the cause until he was introduced into it." But it could not have been intended by this to say, that a prior incumbrancer was absolutely a necessary party without whose presence no decree of sale could be made, because in that very case the court refused to treat the decree as erroneous, after it had been executed.

In Delabere v. Norwood, 3 Swanst. 144, n., in a bill to obtain payment of an annuity charged on land, prior annuitants were held not to be necessary parties. In Rose v. Page, 2 Sim. 471, the same rule was applied to a prior mortgagee; and in Wakeman v. Grover, 4 Paige, 23, and Rundell v. Marquis of Donegal, 1 Hogan, 308, and Post v. Mackall, 3 Bland, 495, to prior judgment creditors; and in Parker v. Fuller, 1 Russ. & My. 656, persons having incumbrances on real property, which the bill sought to subject to the payment of debts of the deceased owner, were held not to be necessary parties to the bill. See, also, Hoxie v. Carr, 1 Sum. 173; Calvert on Parties, 128. On the other hand, there are cases in which it has been declared that all incumbrancers are necessary parties. Many are collected in Story's Eq. Pl. 178, n. But we consider the true rule to be, that where it is the object of the bill to procure a sale of the land, and the prior incumbrancer holds the legal title, and his debt is payable, it is proper to make him a party in order that a sale may be made of the whole title. In this sense, and for this purpose, he may be correctly said to be a necessary party, that is, necessary to such a decree. But it is in the power of the court to order a sale subject to the prior incumbrance, a power which it will exercise in fit cases. And when the prior incumbrancer is not subject to the jurisdiction of the court, or cannot be joined without defeating its jurisdiction, and the va lidity of the incumbrance is admitted, it is fit *to dispense with his being made a party. [*38 To such a case the 47th rule for the equity practice of the Circuit Courts of the United States is applicable, and by force of it, this cause may proceed without making the United States, or the Solicitor of the Treasury, a party to the decree.

The decree of the District Court must be reversed, and the case remanded, with directions to overrule the demurrer and order the defendants, other than the representative of the United States, to answer the bill.

Order.

This cause came on to be heard on the tran

script of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed, that the decree of the said District 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 District Court, with directions to overrule the demurrer, and to order the defendants, other than the representative of the United States, to answer the bill.

JOHN KENNETT, Ezekiel S. Haines, Eden B. Reeder, George Graham, Jr., John McCarty, Joshua Yorke, and Robert B. Bowler, Ap pellants,

V.

THOMAS J. CHAMBERS. Jurisdiction-contract with citizen of Texas made before U. S. acknowledged its independence and while at war with Mexico, cannot be enforced in U. S. court.

It belongs exclusively to the Political Department of the government to recognize or to refuse to recognize a new government in a foreign country, claiming to have displaced the old and established

a new one.

States.

execution of an agreement made in the State of Kentucky, between citizens thereof and this defendant, in violation of the policy of the gov ernment of the United States in her intercourse with foreign governments.

The demurrer was sustained generally by the court below, and therefore all the points were open to argument in this court; but it is not necessary to notice any except those upon which the judgment of the court rested.

It was argued by Mr. Snethen for the appellants, and there was also a brief filed upon that side by Mr. L. Sherwood. On the part of the appellee it was argued by Mr. Volney E. Howard.

Mr. Snethen contended that the neutrality and foreign policy of the United States towards Mexico were regulated entirely by law, which

was found in the 6th section of the Act of Congress of the 20th of April, 1818 (3 stat. [*40 at Large, 449). There is an entire absence, in the contract, of all declaration or indication of the place or country where the proposed mili

391A contract made in the United States at that time for the purchase of land in Texas, would have been valid even if the money was afterwards used to support hostilities with Mexico. But in this case it was not an ordinary purchase, but the object of the complainants, as avowed in the contract and the bill, was to aid Texas in its war with

Mexico.

The contract being absolutely void by the laws of the United States at the time it was made, the circumstance that it was valid in Texas, and that Texas has since become a member of the Union, does not entitle the complainants to enforce it in the courts of the United States. No contract can be enforced in the courts of the United States, no matter where made or where to be executed, if it is in violation of the laws of the United States, or is in contravention of the public policy of the government or in conflict with subsisting treaties.

IN N this cause Mr. Justice Catron was absent, because of indisposition, during the hearing before the court, and took no part in

the decision.

This was an appeal from the District Court of the United States for the District of Texas. The facts in the case are stated in the opin

ion of the court.

There were several causes of demurrer filed in the court below, but it is necessary to notice only the following, because the decision in this court turned entirely upon them:

1. The said bill, if the facts therein were true, which is in no sort admitted, contains no matter or thing of equity upon which to ground any decree, or give the complainants any aid

or relief.

2. The complainants' said bill shows no legal or valid agreement upon which to ask the aid or decree of the court; but to the contrary, sets out and shows an agreement which was in violation of the neutrality of the United States towards the Republic of Mexico in her contest with Texas.

3. The complainants' said bill seeks the aid or assistance of the court to enforce the specific

NOTE.-Illegal contracts, what are. How far fraud or illegal consideration will avoid a contract. See note to Armstrong v. Toler, 6 L. ed. U. S. 469. What contracts are void as against public policy, or as illegal. Illegal consideration, when a defense.

Agreement not to bid. Lobby service. Contingent fees. To prevent competition. See note to Bartle V. Nutt. 7 L. ed. U. S. 825.

will not be denied that, to subject an offender place whence they were to be carried on. It to the pains and penalties of this section, it must be incontestably and directly shown and proved that the "military expedition or enterprise" which he may "begin or set on foot," or "provide or prepare the means for," was begun or set on foot "within the territory or jurisdiction of the United States," and was "to be carried on from thence" against a nation with whom they were at peace. So obvious a proposition hardly needs the weight of authority to support it. Now, the contract proves no such offense. The defendant may have done, and intended to have carried on, all the acts which the complainants enabled him to do, within and from some other country than the United States. The place or country where the forbidden acts were done and whence they were to be carried on, cannot be inferred from

the language of the contract with any degree of certainty, and the omission cannot be supplied by any known rule of construction.

The 6th section of the Act of 1818 is a penal enactment, and must be construed strictly, and the proof to sustain an offense against it must be direct and positive. The contract affords not only no such proof, but no proof at all, that the forbidden acts were done within the United

States, and to be carried on from thence. No such offense, therefore, as that denounced by the Act, when strictly construed, having been proved against the parties to the contract, the contract itself consequently was not, when made, in violation of the neutrality or foreign policy of this country towards Mexico and other nations, as established and defined by said section and Act.

The same course of argument was pursued by Mr. L. Sherwood in his brief for the appellants.

1. Texas, at the time of this contract, was an independent government. And in making the contract the complainants did not violate the laws of the United States, enacted to preserve our neutrality with nations with whom we were at peace, nor did they violate our Treaty of Amity with Mexico. Hence, the contract was legal, under the laws of the United States.