IN EQUITY.

Opinion of the Court.

The case is stated in the opinion.

Mr. John R. Bennett for appellants.

Mr. Arthur v. Briesen (with whom was Mr. Antonio Knauth on the brief) for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

These are appeals from final decrees rendered in the Circuit Court of the United States for the Southern District of New York, awarding to Abraham G. Jennings and Warren P. Jennings, complainants, damages against Thomas Dolan, of Philadelphia, and Kibbe, Chaffee, Shreve & Co., of New York, for the infringement of letters patent No. 218,082 for lace purling. A design patent No. 10,448 for a design for fringed lace fabric was also proceeded on in the bills of complaint, but was held not to have been infringed by defendants. Final decrees were rendered in each suit in favor of Abraham G. Jennings and Warren P. Jennings against Dolan and Kibbe et al., respectively, on the 12th of February, 1887.

On the 25th of March, 1887, a petition for appeal was filed in each case on behalf of the defendants, entitled "Abraham G. Jennings, survivor of Abraham G. Jennings and Warren P. Jennings," and against Dolan and Kibbe et al., and the appeals were allowed.

The bond in No. 265 was approved March 10, 1887, and entitled "A. G. Jennings, surviving complainant in A. G. Jennings and W. P. Jennings v. Thomas Dolan," and recited that Dolan and his sureties were "held and firmly bound unto the above-named complainants in the sum of thirty-five hundred dollars, to be paid to the said complainants." The citation ran, "to Abraham G. Jennings, surviving complainant, etc." and was served March 24, 1887.

In No. 266 the bond was entitled "A. G. Jennings, surviving complainant in A. G. Jennings and W. P. Jennings v. Henry R. Kibbe," and the other defendants, and recited that the persons signing were "held and firmly bound unto the abovenamed A. G. Jennings and W. P. Jennings in the sum of

Opinion of the Court.

twenty-seven hundred dollars, to be paid to the said A. G. Jennings & W. P. Jennings." This bond was filed March 10, 1887. The citation ran to "Abraham G. Jennings, surviving complainant, etc.," and was served March 24.

The bills commenced "Abraham G. Jennings and Warren P. Jennings, doing business at the city of New York, county and State of New York, and citizens of the State of New York," and set up that Abraham G. Jennings and Warren P. Jennings were "the sole and exclusive owners" of the patents in question. It nowhere appeared from the pleadings, proofs, proceedings or decrees, that the complainants claimed to own or did own the patents as partners, though there was some evidence that there was a firm styled A. G. Jennings & Son, or A. G. Jennings & Sons, or Jennings & Co. Sundry licenses were put in evidence, describing Abraham G. Jennings and Warren P. Jennings as the owners of the patents and the granting of the licenses accordingly. The death of Warren P. Jennings was not suggested on the record by the appellants, except as the titles to the petitions for appeal and the bonds on appeal, and the directions of the citations, might be considered as such. But we understand his death after decree to be conceded. No order was procured, directed to the proper representatives of the estate of Warren P. Jennings, or notifying them of the appeal, nor have they voluntarily appeared.

The proper course of proceeding upon this subject has been wholly disregarded. Rev. Stat. § 955; Act March 3, 1875, $9, 18 Stat. 470, c. 137; Rule 15, 108 U. S. 581. So far as disclosed by these records, the cause of action did not on the death of one of the complainants survive to the other, nor could there have been nor was there any severance between Abraham G. Jennings and the legal representatives of Warren P. Jennings; nor do we think that the defect can now be cured. More than four years have elapsed since the final decrees were entered, and as we have never had jurisdiction over the legal representatives of the deceased complainant, it is impossible for us to obtain it now.

In Knickerbocker Life Insurance Co. v. Pendleton, 115 U. S. 339, after judgment had been rendered here reversing the

Syllabus.

judgment below, which had passed in favor of the plaintiffs below, the court discovered that the writ of error was sued out and citation directed and served against only one of those plaintiffs, and that the preliminary appeal bond was made to him alone. The supersedeas bond was, however, executed to all the plaintiffs, and the subsequent proceedings generally bore a plural title. The special circumstances of the case were held to justify the amendment of the writ of error and the issue of a new citation.

In Mason v. United States, 136 U. S. 581, the application to amend being made more than two years after the entry of judgment, and the omitted parties being in no way in court, the application was denied and the writ of error dismissed. Estis v. Trabue, 128 U. S. 225.

We are compelled to hold the objection fatal to our jurisdiction, and the appeals must be

Dismissed.

MELLEN v. BUCKNER.

BUCKNER v. MELLEN.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Nos. 13, 27. Argued November 25, 26, 1889. Decided March 23, 1891.

M., a planter of Louisiana, died in 1860, leaving as his heirs, the minor children of his deceased daughter Julia, and the minor grandson of his deceased daughter Ann. At the death of his wife, in 1844, a large portion of the property then in his possession was community property, in which she was entitled to a half interest. Before his death he attempted, by sale and donation of specified estates, valued and appraised by him, to give to his daughter Julia (who was then living) her interest in the community property left by her mother and three-fourths of his own remaining estate; and, in a like way, to give to the grandson of his daughter Ann his like interest in the community property and the remaining one-fourth of his own estate. At his death he left a will with similar provisions. The parties each entered into possession of the properties thus respectively assigned to them, occupying in separate parcels,

Syllabus.

without interference from the testamentary executor. But in 1869 the testamentary executor of M. made a simulated sale of all the lands at the instance of one of the parties concerned. A creditor of his estate then filed a bill on behalf of himself and other creditors, to set aside this sale as fraudulent, and to subject the lands to the payment of the testator's debts; and such proceedings were had thereon that this court, at October term, 1883, decided that the sale was fraudulent in fact, and that the lands in the hands of the heirs were liable for his debts. Johnson v. Waters, 111 U. S. 640. The cause having been remanded to the Circuit Court for further proceedings and to afford other creditors an opportunity to become parties, the representatives of the heirs of Julia and of the heirs of Ann respectively presented their claims as creditors for their interest in the community property, and also filed bills in the nature of supplemental or cross bills, setting up that they were not parties to the former decree, averring the validity of the sale declared fraudulent, setting up their claims to the community property, and claiming that they should be allowed for improvements. The creditors' representative answered, that the debts for the community property had been fully paid from rents and revenues, or, if not paid, had, under the laws of Louisiana, become subordinated to the debts of ordinary creditors. Further evidence was taken in addition to that in the original cause: Held, (1) That the decision in Johnson v. Waters was right as to the fraudulent character of the sale made in 1869, and that it be affirmed;

(2) That the act of sale and donation to M.'s daughter Julia, mentioned in Johnson v. Waters, was void as a donation, but valid as a sale to the extent of the consideration named therein; to wit, the debt due to her for her share in the community property, and the sum to be paid by her to the other heir;

(3) That any debt which may have been due from M. to either of his heirs on account of the community property, was more than satisfied by their respectively receiving that portion of the property which was intended by him to be a satisfaction of it, and by the rents and revenues received since his death; and that such portion in aliquot parts should be held by them free from the other debts of the estate; but that the remaining portion should be sold to pay said debts;

(4) That, being minors at the time they became heirs, they were, under

the law of Louisiana, heirs with benefit of inventory, and not personally liable for the debts beyond the amount of the property which was not received in satisfaction of their own claim upon the community;

(5) That on equitable grounds they should have some allowance or consideration, beyond the use of the property, for improvements which they had placed upon it, and for restoration of its condition after floods and other devastations;

(6) That in view of the conflicting evidence and the difficulty of arriving at an accurate adjustment of equities this court would direct

Opinion of the Court.

that the respective interests of the heirs be increased as indicated in the opinion;

(7) That there is nothing in the sections of the Civil Code of Louisiana, referred to in the opinion, which conflicts with these equitable conclusions.

IN EQUITY. The case is stated in the opinion.

Mr. J. Ward Gurley, Jr., and Mr. John G. Simrall for Mellen. Mr. B. T. Sage was with them on the brief.

Mr. Thomas J. Semmes for the heirs of Julia Morgan.

Mr. J. R. Beckwith for Buckner and others.

Mr. John T. Ludeling for the creditors.

MR. JUSTICE BRADLEY delivered the opinion of the court.

These cases are supplementary to that of Johnson v. Waters, 111 U. S. 640, decided by this court on appeal from the Circuit Court for the District of Louisiana in October term, 1883. In that case, William Gay, a judgment creditor of Oliver J. Morgan, deceased, to the amount of $33,250, besides interest, filed a bill on behalf of himself and all other creditors of the deceased who might come in and contribute to the expenses of the suit, to subject five certain plantations in Carroll parish, Louisiana, of which Oliver J. Morgan had died possessed, to the payment of his debts, and to set aside as fraudulent and void a pretended judicial sale of said plantations made to certain of the defendants in January, 1869. The plantations were named Albion, Wilton, Melbourne, Westland and Morgana, and they lay together, the three former (the most valuable) fronting on the Mississippi River. Oliver J. Morgan had died in October, 1860. His wife, Narcissa Deeson, had died in 1844, and a large portion of the property was community property in which she was entitled to a half interest, though some of it was acquired after her death. In 1857, in a proceeding for partition of said property in the District Court for the parish of Carroll, instituted by Oliver J. Morgan, a sale was