claimed that the assignee should credit on their purchase money the rents and profits of the property during the time they were kept out of its possession by the action of the assignee, which was in the end held to have been unlaw [412] the court in the suit, and for expenses of obtain-show that the appellees might properly have ing possession. Thomas v. Buxton, L. R., 8 Eq., 120. If the appellees might have been entitled to a deduction from the amount of their bid because of the action of the assignee, the bankrupt estate could not re-imburse itself for its loss from such action by making the appellants re-ful. The case of Lupton v. Almy, 4 Wis., 242, sponsible for it. Nor does the doctrine applied to a purchaser who buys land with notice of a prior equitable estate apply to the appellants. The district court vacated the prior sale by the same order which accepted the bid of the appellants, and the order referred to the petition of the assignee, which set forth that Hodgkins had not paid his bid; and there was annexed to the petition a copy of the bid of the appellants, which stated that they made it understanding that Hodgkins had not complied with his proposition. As to the appellants there was, at the time they paid their money, no outstanding contract with or sale to Hodgkins by the assignee. Nor is there any analogy between this case and one of liability by a grantee in a voluntary conveyance held void as made in fraud of creditors, for rents and profits from the property. The appellees cite the case of Raun v. Reynolds, 15 Cal., 459. The history of that case, gathered from the above report, and from 11 Cal., 14, and 18 Cal., 275, and Reynolds v. Harris, 14 Cal., 667, shows that a decree foreclosing two mortgages on land had directed that two different parcels, one covered by one of the mortgages and the other by the other, should be sold together, although one parcel was owned by one mortgagor, and the other by him and another person jointly, as mortgagors, such other person being merely a surety. The property was sold under the decree, at auction, by the sheriff, the two parcels being sold together to the plaintiff. He then sold and assigned the decree, and his rights as purchaser, and the sheriff's certificate of sale, to one Harris. After that the defendants appealed from the decree. The decree was reversed for error in the above directions as to the sale. The time for redemption from the sale having expired without any redemption, Harris obtained possession of the property by a writ of assistance. On an application by the defendants to have the sale set [413] aside and to be restored to possession, it was held that the plaintiff could obtain no advantage by a purchase under his own erroneous judgment; that Harris was not within the protection of an innocent purchaser without notice; and that he took the plaintiff's claim subject to the defendant's right of appeal and reversal, and occupied the plaintiff's position, with all his rights, as well in the decree and the debt as in the purchase, the decree being unaffected by any payment resulting from the sale. The application of the defendants was granted, and they were restored to possession. A question then arose as to the rents and profits while they were out of possession. Under the foregoing views and as the mortgage still remained valid, to be enforced by Harris, under the decree, the court held that Harris must be treated as a mortgagee in possession, and was bound to credit on the mortgage the amount he had received out of the property. This case is wholly unlike the one before us and affords no support to the claim of the appellees. If anything, it goes to was a similar one, of a purchaser who owned the decree at the time of the sale, and took possession of the property after the sale had been set aside and was treated as a mortgagee in possession and held liable for rents and profits. The decree of the Circuit Court must be reversed and the case be remanded to that court, with direction to dismiss the bill. (See S. C., Reporter's ed., 414-420.) Verification of pleadings-demurrer-Statute of Limitations liability of surety-Alabama law-liability of executor-demurrer. *1. In Alabama, a plea which denies the execution, by the defendant, of an instrument in writing which is the foundation of the suit, must be verified by affidavit; and the want of such affidavit may be reached by a demurrer. 2. In Alabama, the plea of ni debet in an action of assigned, is bad on demurrer. debt on a bond with condition, where breaches are 3. In Alabama, by statute, an action against the surety of an executor, for any misfeasance or malsix years after the cause of action has accrued and feasance of his principal, must be brought within not afterwards, the time to be computed from the act done or omitted by the principal, which fixes the liability of the surety; and, until there is a judicial ascertainment of the default of the principal, the liability of the surety is not fixed. 4. Such judicial ascertainment must be something more than an auditing of accounts, or an ascertainment or judgment that a distributee's share is 80 much, or that the distributee is entitled to so much. There must be a decree ordering payment and on which process to collect can issue against the principal. 5. A decree of a probate court, in Alabama, in 1864, finding that a distributee's share was so much, expressed in money, and had been invested in confedamount in such bonds, was not a decree on which erate bonds, and ordering the executor to pay the the executor could be sued to pay in anything but the bonds, or one on which a surety on the bond of of the United States, and a failure of the executor the executor could be sued to pay in lawful money to comply with such decree did not fix the liability of the surety. does not state any facts to show the application of 6. Where a complaint in a suit against such surety the limitation of such statute, a plea which does not state such facts is bad on demurrer. [No. 233.] Argued Jan. 25, 1884. Decided Mar. 3, 1884. IN ERROR to the Circuit Court of the United States for the Southern District of Alabama. The history and facts of the case appear in the opinion of the court. Smith and Thomas A. Herndon, for plaintiff in Messrs. W. Hallett Phillips, J. Little error. Mr. H. Pillans, for defendant in error. [414] Mr. Justice Blatchford delivered the opin. [415] ion of the court: *Head notes by Mr. Justice BLATCHFORD. On the 22d of November, 1858, John A. C. error. The first plea alleges that the defendant did not undertake in manner and form as is in said complaint alleged and set forth, and that he does not owe the debt claimed of him in said complaint. The grounds of demurrer to this plea are: (1) that the plea that the defendant did not undertake amounts only to a denial of the execution of the bond and is not verified by oath; (2) that the plea is not verified; (3) that the averment that the defendant does not owe the sum sued for cannot be legally pleaded and tenders no legal issue. By the Code of Alabama (sec. 2989) a plea which denies the execution, by the defendant, of an instrument in writing which is the foundation of the suit, must be verified by affidavit. It is admitted that the want of such affidavit may be reached by a demurrer. But it is contended that the plea is [416] not a plea of non est factum. If the allegation that the defendant did not undertake in manner and form as alleged is not a denial of the execution of the bond, but merely a denial of its operation or effect, it is a bad plea (2 Chit. Pl., 483), and equivalent only to the plea of nil debet, which follows, and bad with that. Indeed, the plaintiff in error contends that all the plea does is to deny liability for a breach of the bond at the time the suit was commenced. In Alabama, the plea of nil debet in an action of debt on a bond with condition, where breaches are assigned, is bad on demurrer. Reid v. Nash, 23 Ala., 733. The other pleas raise the question of the Statute of Limitations. The Code of Alabama provides that actions against the sureties of executors for any misfeasance or malfeasance of their principal must be brought within six years after the cause of action has accrued and not afterwards, the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety. Sec. 3223 (2898); sec. 3226 (2901.) In order to apply the provisions of this statute it is necessary to state the facts of the case, as set forth in the pleas. On the 21st of May, 1860, the Probate Court of Marengo County made a decree on partial settlement of the accounts of the executor, in which it was found that there remained due to Frances L. Bryan, as a legatee, $2,700.18, for which she was entitled to a decree. Other sums were found to be due to other legatees, and it was decreed that they should recover those sums of the executor; but in regard to Frances L. Bryan the decree stated that it appeared there was a suit pending between her and her husband erty therein ascertained to be her share, and it ordered that the executor should hold the balance in cash so ascertained to be due to her, subject to the further decree of the court to be made on the determination of said suit. The legatees and the executor were parties to this decree. Proceedings for a final accounting were afterwards had in the Probate Court and, on the 2d of May, 1864, it made a decree, stating that the executor had fully administered the estate and had a balance of money for distribution, which he had invested in four per cent bonds of the Confederate States, and ordering that of this amount he should pay to Frances L. Bryan, as her share, due to her, $995.78, in said confederate bonds, this sum being in addition to the prior sum of $2,700.18. It ordered the payment of four other shares in such confederate bonds, and that the resignation of the executor, then filed, should be recorded. On the 15th of November, 1867, Sarah Lockhart, one of the legatees, and her husband, and Narcissa Lockhart, another legatee, filed a bill in equity in said circuit court against the executor, making as defendants also the other legatees, devisees and heirs of the testator, and others, including Frances L. Bryan and her husband, alleging the failure of the executor to pay to the legatees, including Frances L. Bryan, the moneys so decreed to them, and praying an enforcement of their payment and a decree therefor against the executor, and against James D. Alexander, as surety on his bond. On the 2d of June, 1871, the court decreed that the executor pay to the plaintiffs in the suit, in lawful money of the United States, the several amounts adjudged to be due to them by the decree of the Probate Court of May 2, 1864, with interest; and that the remaining defendants be authorized to apply for such order and relief as they might be entitled to ask on the principles of said decree. The executor appealed to this court, and the decree was affirmed at October Term, 1873, Horn v. Lockhart, 17 Wall., 570 [84 U.S., XXI., 657], it being held that the executor could not exonerate himself from liability for the moneys adjudged to be due to the legatees by paying the same in confederate bonds. In the opinion of the court it was said: "The validity of the action of the Probate Court of Alabama in the present case, in the settlement of the accounts of the executor, we do not question, except so far as it approves the investment of funds received by him in confederate bonds, and directs payment to the legatces of their distributive shares in those bonds. Its action in this respect was an absolute nullity, and can afford no protection to the executor in the courts of the United States." On the first of April, 1874, Frances L. Bryan [417] [418] filed her petition in the circuit court, in the said | not be sued to pay in lawful money of the United suit in equity therein, under the provisions of the decree, praying for the recovery of the moneys so ascertained to be due to her by the decrees of the probate court, against the executor and against Alexander. The petition set forth that the moneys were her separate estate and that she had been divorced from her husband. The court, on June 10, 1877, made a decree adjudging that no recovery could be had against Alexander, and dismissing the petition as to him, but without prejudice, and decreeing that the petitioner recover, with interest and costs, from the executor, $4,292.12, which was the amount found to be due to her by the report of a master, as the amount, with interest, of the decrees in her favor in the probate court. States. This court, in saying that the direction as to payment in bonds was "an absolute nullity," said nothing in conflict with these views. The ascertainment that $995.78 remained due to Mrs. Bryan as her share was coupled with the direction to pay in the bonds, and until the latter was got rid of by judicial action there was only a qualified decree as to the share. The two parts of the decree were not so unconnected that the former could be allowed to operate as a distinct money judgment by rejecting the latter. The clause as to payment was a whole, and directed that the executor pay to Mrs. Bryan the $995.78 "so remaining due her as aforesaid, in bonds as aforesaid." This was preceded by the finding that the executor had received so much money and had invested it in four per cent confederate bonds. Hence, the direction as to payment had immediate refer On these facts, the question arises as to when the act was done or omitted by the executor which fixed the liability of the surety, so that the cause of action had accrued against the sure-ence to the acquittance of the executor by enty, and the six years had commenced to run. The plaintiff in error contends that the probate decree of 1864 enabled Mrs. Bryan then to sue him, because the provision as to payment in confederate bonds was void and could and should have been so treated by her; and that thus there was then an absolute decree against the executor to pay the money, which fixed the liability of the surety at that time. If this be not so, then it is contended that his liability was fixed by the equity decree of June 2, 1871. It is very plain that the probate decree of 1860, which directed the executor to retain the share of Mrs. Bryan, $2,700.18, till further order, and did not direct him to pay it to her, cannot affect the question before us. It is settled law in Alabama, that, until there is a judicial ascertainment of the default of the principal, the liability of the surety is not fixed, within the statute; that the bar in favor of the surety must be computed from the time of such ascertainment of such default; that the words "act done," in the statute, mean such judicial ascertainment; and that it is that only which creates a cause of action against the surety, and authorizes a suit against him on his bond. Fretwell v. McLemore, [419] 52 Ala., 124, 136. There must be something more than an auditing of accounts or an ascertainment or judgment that the distributee's share is so much, or that the distributee is entitled to so much. There must be a decree or dering payment and on which process to collect can issue against the principal. Gilbreath v. Manning, 24 Ala., 418. As to the probate decree of 1864, the effect of the decision of this court in 17 Wall., 570 [supra], was to leave that decree a valid decree so far as it ascertained that the $995.78 was the amount of the share of Mrs. Bryan, but to declare it invalid so far as it directed anything as to payment. All it directed as to payment was to order the executor to pay the $995.78 in confederate bonds. This was no direction to pay in lawful money of the United States. It was only an order to turn over the bonds. The direction as to the bonds being invalid, the entire direction as to payment fell. Under that decree, so long as the direction to pay in the bonds stood, not abrogated by judicial action, the executor could not be sued to pay in anything but the bonds. Hence, the surety could abling him to discharge his liability to Mrs. Bryan by turning the bonds over to her, and it is not to be presumed the probate court intended to say he should pay in any other way. It did not so say. Therefore, Mrs. Bryan could not have_maintained any suit against the surety, based on that decree. The equity decree of 1871 gave to Mrs. Bryan [420] no greater right to sue the surety than she had before. It was a money decree only for the plaintiffs in it, conferring on her, as a defendant, the right to apply in the suit for like relief. She could obtain no relief in the probate court, as was held in Bryant v. Horn, 42 Ala., 496, because that court had no jurisdiction after the settlement of the administration and the resignation of the executor in 1864. Her decree of 1877, in the equity suit, was the first judicial ascertainment of the default of the executor. That decree dismissed her petition as against the surety, but without prejudice. This showed that it was not dismissed on the merits, but for some defect which was allowed to be obviated by another suit. Mobile Co. v. Kimball, 102 U. S., 691, 705 [XXVI., 238, 242]. The above views dispose of the defense on the merits. The second plea alleges that more than six years from the time of any act done or omitted by the executor, which fixed the liability of the surety on the bond, had elapsed before the commencement of the suit, and that the right of the plaintiff did not accrue within six years before the commencement of the suit, and that the suit and the plaintiff's right of recovery are barred by the six years' Statute of Limitains. This plea asserts only a conclusion of law, without averring any facts. The complaint alleges merely the giving of the bond, the decree of 1877, and the non-payment of the money, as a breach of the condition of the bond. The suit being brought in 1879, no facts appeared in the complaint to show the application of the limitation on which the plea is based. That being so, the plea must state the facts. Winston v. Trustees, 1 Ala., 124. This ground of demurrer is stated in the demurrer to the second plea. By stipulation in the record, the decrce of 1864 is to be considered as set forth in hæc verba in the third plea, and the omission to copy it as part of the plea, as agreed by the stipulation, is [471] a clerical error. It appears in the other pleas. | These are all the errors assigned, and the judgment of the Circuit Court is affirmed. for the purpose of ascertaining the sum of money so due to the State, and to transmit the account to the Comptroller of the Treasury for his examination and action, to the end that that sum James H. McKenney, Clerk, Sup. Court, U. S. might be allowed and paid by the United States. True copy. Test: Cited-112 U. S., 476. FIVE PER CENT CASES. The provisions of the Acts of Congress, on which the petitioners rely, are as follows: The 6th section of the Act of Congress of March 3, 1845, ch. 76, supplemental to the Act of the same day by which the State of Iowa was admitted into the Union, contained, among the propositions offered to the Legislature of the State for its acceptance or rejection, and which, if accepted under the authority con In the Matter of the STATE OF IOWA, ETC., ferred on the Legislature by the Convention Petitioner, etc., In the Matter of the STATE OF ILLINOIS, (See S. C., Reporter's ed., 471-489.) which framed the Constitution of the State, "Fifth. That five per cent of the net pro- Percentage on sales of public lands, when State public roads and canals within the said State, not entitled to. *Under the Act of March 3, 1845, ch. 76, relating to the admission of Iowa into the Union, or the Act of [Nos. 3, 4. Orig.] as the Legislature may direct; Provided, That Argued Nov. 1, 2, 1883. Decided Mar. 3, 1884. bona fide purchasers thereof; and that no tax shall be imposed on lands the property of the The 6th section of the Act of Congress of [472] These are petitions filed in this court by each of the States of Iowa and Illinois, at the relation of its Governor, relying upon the provision of an Act of Congress relating to its admission into the Union by which it was agreed that five per cent of the net proceeds of lands lying "Third. That five per cent of the net proceeds [473] within the State, and afterwards sold by Con- of the lands lying within such State, and which gress, should be appropriated for certain public shall be sold by Congress from and after the first uses of the State; contending that the State day of January, 1819, after deducting all exwas thereby entitled to five per cent of the value penses incident to the same, shall be reserved for computed at the rate of $1.25 per acre, of lands the purposes following, viz.: two fifths to be disdisposed of by Congress in satisfaction of mili-bursedunder the direction of Congress, in making tary land-warrants; and praying for a writ of mandamus to the Commissioner of the General Land-Office, to compel him, in accordance with section 456 of the Revised Statutes, to state an account between the United States and the State, Head note by Mr. Justice Gray. roads leading to the State; the residue to be ap- (Five Per Cent Cases.) said State shall provide, by an Ordinance irrevocable without the consent of the United States, that every and each tract of land sold by the United States from and after the first day of January, 1819, shall remain exempt from any tax laid by order or under any authority of the State, whether for State, county or township or any other purpose whatever, for the term of five years from and after the day of sale; And further, That the bounty lands, granted or hereafter to be granted for military services during the late war, shall, while they continue to be held by the patentees or their heirs, remain exempt, as aforesaid, from all taxes, for the term of three years from and after the date of the patents respectively; and that all the lands belonging to citizens of the United States, residing without the said State, shall never be taxed higher than lands belonging to persons residing therein." 3 Stat. at L., 430, 431. the public lands lying within the States of Ala bama and Mississippi had been regularly and periodically paid to those States respectively, so that at those dates there were no unsettled accounts, growing out of the five per cent clause of the Acts for the admission of those States into the Union, except for lands entered and purchased with military land-warrants; and that by the Act of 1857 it was the duty of the Commissioner of the General Land-Office, when required to do so, to state an account between the United States and each State upon the same principles of allowance as prescribed in the Act of 1855, and by that Act it was his duty, upon proper application, to state such an account for the purpose of ascertaining what sum or sums of money, theretofore unsettled under the Act for the admission of the State into the Union, were due to it on account of lands lying within the State, disposed of by the United States for or in the satisfaction and redemption of military Ac-land-warrants issued by the United States for military services. By the Act of Congress of March 2, 1855, ch. 139, entitled, “An Act to Settle Certain counts between the United States and the State of Alabama," it was enacted as follows: "That the Commissioner of the General LandOffice be and he is hereby required to state an account between the United States and the State of Alabama, for the purpose of ascertaining what sum or sums of money are due to said State, heretofore unsettled, under the 6th section of the Act of March 2, 1819, for the admission of Alabama into the Union; and that he be required to include in said account the several reservations under the various Treaties with the Chickasaw, Choctaw and Creek Indians within [474] the limits of Alabama, and allow and pay to said State five per centum thereon, as in case of other sales." 10 Stat. at L., 630. Each petition further alleged that the Government of the United States, in disposing of the public lands by sale in this and other western States, adopted two methods: one for cash, the other for the redemption of its outstanding military warrants or obligations, calling for a specific quantity of land, issued to the soldiers who had enlisted and served in the different wars of the country, under statutes enacted in advance of their enlistments, and as a compensation for their military services. the public lands located and taken up under the Each petition suggested that by the Act of August 14, 1848, ch. 180, 9 Stat. at L., 332, military land-warrants were made receivable, at the rate of $1.25 per acre for the number of By the Act of June 3, 1857, ch. 104, entitled, acres therein contained, in payment for any of "An Act to Settle Certain Accounts between the public lands subject to private entry; and the United States and the State of Mississippi that by the Act of March 22, 1852, ch. 19, 10 and Other States," it was enacted as follows: Stat. at L., 3, all military land-warrants, theretoSec. 1. " That the Commissioner of the Gen- fore and thereafter issued, were made assignable eral Land-Office be and he is hereby required to by the persons to whom they were issued, and state an account between the United States and also made receivable from their assignees, at the the State of Mississippi, for the purpose of as-rate aforesaid per acre, in payment for any of certaining what sum or sums of money are due to said State heretofore unsettled, on account of the public lands in said State, and upon the same principle of allowance and settlement as prescribed in the 'Act to settle certain accounts between the United States and the State of Alabama' approved the 2d March, 1855; and that he be required to include in said account the several reservations under the various Treaties with the Chickasaw and Choctaw Indians within the limits of Mississippi, and allow and pay to the said State five per centum thereon, as in case of other sales, estimating the lands at the value of $1.25 per acre. Sec. 2. That the said commissioner shall also state an account between the United States and each of the other States upon the same principles, and shall allow and pay to each State such amount as shall thus be found due, estimating all lands and permanent reservations at $1.25 per acre." 11 Stat. at L., 200. Each petition alleged that the State had accepted the propositions and faithfully kept and performed on its part the conditions, set forth in the Act of admission; that, prior to the dates of the passage of the Acts of 1855 and 1857 respectively, the five per cent on the cash sales of [475] Each petition further alleged that the five per cent had been allowed and paid to the petitioner, at stated and proper periods, on sales for cash, but had been withheld on lands located and purchased with military land-warrants; that the sum so withheld amounted to $881,006.60 in the case of Iowa, and $595,853.31 in the case of Illinois; that the respondent, though formally requested, had refused to state an account as prayed for; and that the duty of stating such an account was purely ministerial and mandatory [476] in its character, leaving no room for the exercise of his own judgment and discretion in its performance. Upon each of these petitions a rule to show cause was granted at the last Term. The Commissioner of the General Land-Office at this Term filed an answer, in the nature of a return to each rule, admitting that upon the facts stated in the petition, as modified and explained by the facts set forth below, he refused to state the account prayed for, and alleging that the grounds of his refusal were these: First. That neither the Act of Congress relating to the admission of the State into the Union, |