HOE V. WILSON, 76 U. S. 501 (1869)

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U.S. Supreme Court

Hoe v. Wilson, 76 U.S. 9 Wall. 501 501 (1869)

Hoe v. Wilson

76 U.S. (9 Wall.) 501


1. Where certain heirs at law seek to set aside a sale of their ancestor's realty made under a decree of a competent court ordering, at a creditor's instance, such sale for the payment of a debt due him, they should make the creditor on whose application the sale was made a party. All the heirs also should be parties. It is not enough that those who bring the suit profess to file their bill "for themselves and the other heirs at law," these last being known and not numerous.

2. This Court will reverse and remand a case thus defective as to parties, although this deficiency have not been made a point at the bar below.

3. It will not consider a case upon documents not in the cause below, though filed here by consent as if returned under a writ of diminution.

The decree of the Supreme Court of the District ordering a sale of Miss Dermott's real estate, which the affirmance in the preceding case adjudged was rightly made, having been executed and a sale made, and the property bought by Wilson, who as stated in the report of the case had been appointed receiver of its rents, Hoe, there also mentioned as an heir-at-law of Miss Dermott, with eight others, her heirs also, who joined with him, filed a bill against this Wilson to set aside the purchase, the ground of their bill being that he had purchased below the real value of the property, and that having been receiver, he was incompetent, with proper regard to those rules which equity places around all persons standing in positions of confidence, to purchase at all. The nine heirs who thus filed the bill professed to file it "for themselves and the other heirs at law," averring that there were such others, but not naming them nor saying anything as to their number, nor indeed anything else about them. The testimony showed the existence of four, and gave the names of two in full, with a statement that the full names of the two others were not remembered, but that in their names occurred, it the one, "O'Neal," and in the other, "Jane." The

Page 76 U. S. 502

post office address of the first two was given, and of the other two it was stated that they lived "somewhere in Alabama, post office address not remembered."

Jones, the creditor at whose instance the property was sold, and whose debt was to be paid by the proceeds of the sale, was not made a party either.

The court below heard the case on its merits, and dismissed the bill; no objection being made there at the bar on the ground of defect of parties. The complainants brought the case to this Court, and the record being here the counsel on both sides agreed that there should be added to the record of the principal case, to have the same effect as if returned under a writ of diminution, the following proceedings in that cause, to-wit,

"the final decree of sale, the trustees' report of sale, the exceptions filed to the ratification of the sale and the order of the court thereon, the order of ratification of the sale, the deed of the trustee to the purchaser."

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