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U.S. Supreme Court

Whiting v. Bank of United States, 38 U.S. 13 Pet. 6 6 (1839)

Whiting v. Bank of United States

38 U.S. (13 Pet.) 6


According to the course of practice in the courts of the United States in chancery cases, an original decree is to be deemed recorded and enrolled as of the term in which the final decree was passed. A bill which seeks to have alleged errors revised for want of parties or for want of proper proceedings after the decree against his heirs after the decease of one of the parties is certainly a bill of review, in contradistinction to a bill in the nature of a bill of review, which lies only where there has been no enrollment of the decree.

An original bill in the nature of a bill of review brings forward the interests affected by the decree other than those which are founded in privity of representation.

In England, the decree always recites the substance of the bill and answer and the pleadings, and also the facts on which the court founds its decree. But in America, the decree does not ordinarily recite these, and generally not the facts on which the decree is founded. But with us, the bill and answer and other pleadings, together with the decree, constitute what is properly considered as the record.

The bill of review must be founded on some error apparent upon the bill, answer, and other pleadings and decree, and a party is not at liberty to go into the evidence at large in order to establish an objection in the decree founded on the supposed mistake of the court in its own deductions from the evidence.

No party to a decree can, by the general principles of equity, claim a reversal of a decree upon a bill of review unless he has been aggrieved by it, whatever may have been his rights to insist on the error at the original hearing or on an appeal.

A decree of foreclosure of a mortgage and of a sale are to be considered as the final decree in the sense of a court of equity, and the proceedings on the decree are a mode of enforcing the rights of the creditor and for the benefit of the debtor. The original decree of foreclosure is final on the merits of the controversy. If a sale is made after such a decree, the defendant not having appealed as he had a right to do, the rights of the purchaser would not be overthrown or invalidated even by a reversal of the decree.

After a decree of foreclosure of a mortgage and a sale, and the death of the defendant takes place after the decree, it is not necessary to revive the proceedings against the heirs of the deceased party before a sale of the property can be made.

The case as stated in the opinion of the Court was as follows:

"This is the case of a bill purporting to be a bill of review. The substantial facts, as they appear on the record, are as follows:"

"Gabriel J. Johnson being the owner in remainder of a five-acre lot, No. 9, in Louisville, Kentucky, of which his mother, Enfield Johnson was tenant for life under the will of his father, and being also the owner in fee by another title of another piece of land adjoining the five-acre lot, a part of the slip No. 2, on 12 November, A.D. 1818, conveyed the same in mortgage to James D. Breckenridge to secure the latter for his endorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes and contracts which Breckenridge should thereafter make, execute, accept, or endorse for the benefit of Johnson. Afterwards, on 9 August, A.D. 1820,

Page 38 U. S. 7

Johnson & Breckenridge, as his surety, being indebted to the Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars and thirty-seven cents, arrangements were made between them and Whiting by which Whiting assumed the payment of the same debt and gave his note therefor to the bank accordingly, and as security for the due payment thereof, Johnson and his mother Enfield Johnson, Breckenridge and Whiting on the same day executed a mortgage of the five-acre lot and slip of land above mentioned to the Bank of the United States, reciting, among other things, the foregoing arrangement. The condition of the mortgage, among other things, stated that it was agreed by the parties that after the satisfaction of the said demands due by Whiting to the bank and by Gabriel J. Johnson to Whiting, the estate or the residue thereof, or any surplus in money by the sale thereof, should be paid or conveyed to Enfield Johnson or her assigns. The mortgage also contained a stipulation for the sale of the premises to meet the payment of the debt due to the bank. In April, 1823, the debt due and thus secured to the bank remaining unpaid, a bill for a foreclosure and sale was brought by the bank in the circuit court of the United States for the District of Kentucky, and to that bill Gabriel J. Johnson Enfield Johnson and Whiting were made parties. But Breckenridge was not made a party. At the November term of the circuit court, A.D. 1826, a decree of foreclosure of all the equity or right of resumption of the defendants in the mortgaged premises was passed, and a further decree that the premises should be sold by commissioners. The sale took place accordingly; the bank became the purchasers, and the sale was confirmed by the circuit court at May term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on 26 February, 1827, Whiting died in Massachusetts, leaving the plaintiffs in the present bill, Paulina Whiting, and Helen B. Whiting, and one L.R. Whiting (since dead without issue) his children and heirs at law -- who were then infants under age, and the youngest, Helen, did not come of age until 1831."

The present bill is brought by Paulina Whiting and Helen B. Whiting by James Richardson, administrator of Ruggles Whiting, and by Gabriel J. Johnson and Enfield Johnson against the Bank of the United States, and after stating the proceedings in the original suit upon the mortgage, and that the sale was made at a great sacrifice of the property, it relies on the following grounds of error in the proceeding, decree and sale in the original suit. 1. That it was irregular and erroneous to entertain the bill, and pronounce the decree for foreclosure and sale without Breckenridge's being made a party defendant. 2. That it was irregular and erroneous to sell the property mortgaged without a revival of the suit against the heirs of Whiting. 3. That it was unjust and oppressive to sell in the manner and at the price at which the sale took place.

The answer of the bank denies all equity in the plaintiffs and insists that the decree and sale were fair and just. It also denies that

Page 38 U. S. 8

Whiting and Breckenridge had any title to the property, and insists that they joined in the mortgage merely to complete the arrangements made between Johnson and themselves. It also denies that the death of Whiting was known at the time of the sale. It states that the property was, after the purchase by the bank, improved, and parts thereof sold to bona fide purchasers for valuable considerations, and by reason of the improvements and the extension of the city, parts of the grounds so sold are now among the most beautiful and densely built parts of the city. The answer also states that Whiting died insolvent and deeply indebted to the bank by certain other judgments and notes.

Page 38 U. S. 11

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