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which it relates are in existence; but when the crops grow, the lien attaches and binds them effectually from that time.

14 Pa., 82; State v. Van Horne, 7 Ohio St., 327; | not operate as a mortgage, before the crops to State v. Trustees, 8 Ohio St., 401; Supervisors v. Schenck, 5 Wall., 782, 18 L. ed. 559. And estoppel resulting from payment. Keithsburg v. Frick, 34 Ill., 421.

2. Where premises leased are sold at sheriff's sale, on a judgment against the owner, the sheriff's deed conveys the reversion, and the rent follows it as an incident.

3. Where a tenant sold crops covered by a mortgage clause in the lease, to a vendee who had full impressed with the lien thereof, and when he sold notice of such clause. the crops went into his hands them, he took the proceeds in trust for the purchaser of such premises at the sheriff's sale, and became liable to him for the amount [No. 238.]

The indorsement of the treasurer did not import that the checks had been presented for payment and dishonored. The custom, as we have seen, was to issue such checks "in payment of debts, or to draw money from the treasury,' and that, when issued in payment of debts and not to draw money immediately from the treasury, it was the custom to present them for the treasurer's indorsement of the date, and afterwards to allow interest from the date | Submitted Mar. 20, 1874. Decided Apr. 6, 1874. indorsed, thereby placing them on the footing of bills accepted, payable on demand, with interest from date.

There was no evidence that those in suit were ever presented for payment; the complaint being that they were not in fact to have been issued, still less paid, until the maturity of the note they were given to secure.

Interest is a matter of special agreement. Glass Factory v. Reid, 5 Cow., 588.

The indorsement, taken in connection with the custom, entitled purchaser to interest.

The case, as contemplated by the especially contested ruling below, was simply the North River Bank case, 3 Hill. 263, over again.

The agents of the Corporation to execute its checks for prescribed purposes, executed some for different purposes; but the purchaser sup posed these to have been executed really, as well as apparently, for the prescribed purposes.

But the real case, as sufficiently disclosed, was that the Corporation itself knew of and sanctioned the act of the agents in executing and issuing the checks as they did; and the bad faith of the party whom it trusted to retain them until the maturity of the note they were given to secure, cannot be allowed to prejudice an innocent purchaser.

Mr. Justice Bradley delivered the opinion

of the court:

The checks sued on in this case by the defendant in error are similar in all respects, in form and inception, to the check issued to Julius Sax, referred to in the judgment just giv en in the case of Nashville v. Ray [ante, 164], having been pledged as collateral, for a loan of less amount than the checks thus pledged, and sold soon after being pledged, and before the loan fell due, the transaction being effected by the Chairman of the Finance Committee of the City Council, without other authority.

Such at least was the tendency of the evidence, and the judge charged substantially as in the case of Ray. The same judgment must be given. The judgment reversed, with directions to award a venire de novo.

CARY W. BUTT, William Flash, and Thomas
T. A. Lyon, partners, as Butt, Flash & Lyon.
Appts.,

บ.

HENRY T. ELLETT.

(See S. C.. 19 Wall., 544-547.) Mortgage clause in a lease-crops, to what extent covered by-sheriff's sale of premises. 1. A mortgage clause in a contract of lease can19 WALL

APPEAL from the Circuit Court of the Unit

ed States for the District of Louisiana. in Bolivar Co., Miss., leased the same to John W. Sillers, the owner of the Asia plantation H. Graham, for one year, commencing Jan. 1, 1867, for the rent of $7,000, payable one half Oct. 1, and the other half Nov. 1, 1867. For the first installment, Graham gave a bill of expaid at maturity, and for the second he gave change accepted by the appellants, which was note remains unpaid. Graham covenanted to a note payable to Sillers for $3,500, which pay the rent promptly at the maturity of the draft and note, and embodied in the lease a mortgage and pledge of all the crops raised for the faithful performance of this covenant. on the plantation in the year 1867, as security The bill alleged that about Feb. 8, 1867, Sillers contract between them was exhibited to appeland Graham met at New Orleans, and that the lants who read it and received a counterpart of it, and that the appellants, with full knowledge of its contents, accepted the draft for half the rent, which has been paid. however, state that at this time they called atThe appellants, tention to that portion of the agreement whereby Graham mortgages the crops, and objected to the same; whereupon Sillers stated that the laws of Mississippi did not authorize a mort

property-see note Pennock v. Coe, 16 L. ed. U. S. NOTE. The lien of a mortgage on after-acquired 436.

Mortgages on crops to be planted.

ing a certain term, but which is not yet sown, A mortgage of a crop to be raised on a farm durpasses no title, and the mortgagee has no claim against a purchaser of it, for the crop or its value. 711; Comstock v. Scales, 7 Wis., 159; Cudworth v. Hutchinson v. Ford, 9 Bush, 318, 15 Am. Rep., Scott, 41 N. H., 456.

in cquity as soon as the subject of the mortgage Lien of a mortgage on an unplanted crop attaches comes into existence and will be enforced against the mortgagor and those holding under him with record notice. Apperson v. Moore, 30 Ark., 56, 21 Caffrey v. Woodin. 65 N. Y., 459, 22 Am. Rep., 644. Am. Rep., 170; Smith v. Atkins, 18 Vt., 465; Mc

Lessee in possession executed mortgage of the crops to be raised the coming season, and which were not yet planted, and the mortgage was held valid. Argues v. Wasson, 51 Cal., 620, 21 Am. Rep,. 718.

A lien reserved in a recorded lease on the "crops rent." grown annually on the land as security for the is valid and paramount to a subsequent mortgage. Everman v. Robb, 52 Miss., 653, 24 Am. Rep., 682: Sellers v. Lester, 48 Miss., 513. There can be no valid sale or mortgage of a crop until it is planted. Redd v. Burrus, 58 Ga., 574.

Mortgage on crop to be planted is a good lien on such crops, where mortgagee takes into his possession the property after it is acquired and before rights of other creditors or purchasers have attached. Moore v. Byrum, 10 So. Car., 452, 30 Am. Rep., 58.

And see note, 23 L. R. A. 449.

gage and pledge of that nature, and that they were also informed to the same effect by counsel. Appellants, therefore, considered said statement in the agreement as of no lawful effect, and believed that Sillers waived the same. Sillers, however, denied having made such statement to the appellant.

June 3, 1867, Ellett, the appellee, purchased the Asia plantation at a sheriff's sale under a judgment recovered by him against Sillers, and Sillers transferred to Ellett the note of Graham for $3,500, due Nov. 1, 1867.

The cotton crop proved almost a failure, by reason of high water in the spring and the army-worm in the fall. The share of Graham was only about forty-nine bales, not enough to pay half the rent. Graham being largely in debted to appellants, they sent an agent, named Ruhle, to the plantation under whose direction the forty-nine bales were obtained from Graham and shipped to the appellants, who sold them and appropriated the proceeds. As soon as these facts were known to the appellee, he demanded the proceeds, and the appellants not complying with his demand, he brought this action in the court below, where a decree was rendered in his favor.

Messrs. Thomas Allen Clarke and R. H. Marr, for appellants:

Upon the question of the validity of the mortgage of future crops, counsel cited:

2 Hill, Mort., 4th ed., ch. 42, p. 414, sec. 12; p. 416, sec. 18; Cudwoth v. Scott, 41 N. H., 456; Moody v. Wright, 13 Met., 17; Jones v. Richardson, 10 Met., 481; Hunt v. Bullock, 23 Ill., 320; Rhines v. Phelps, 3 Gilm., 455; Gardner v. McEwen, 19 N. Y., 123; Chynoweth v. Tenney, 10 Wis., 397; Hamilton v. Rogers, 8 Md., 301; Rose v. Bevan, 10 Md. 466; Chapin v. Cram, 40 Me., 561; Abbott v. Goodwin, 20 Me., 408; 8 Barb., 102; Holly v. Brown, 14 Conn., 255; 11 Wis., 207; Walker v. Vaughn, 33 Conn., 577; Chapman v. Weimer, 4 Ohio St., 481.

Messrs. Estes, Jackson and Ellett, for appellee:

This decree is a simple affirmance of the plain principle, that he who receives and ap

The va

have a lien upon the crop to be grown, as security for the payment of the rent. lidity of such a mortgage is believed to be unimpeachable.

Pennock v. Coe, 23 How., 117, 16 L. ed., 436, and cases cited; Dunham v. R. Co., 1 Wall., 254, 17 L. ed., 584; Robinson v. Mauldin, 11 Ala., 980; Bryan v. Smith, 22 Ala., 534; Floyd v. Morrow, 26 Ala., 353; Curtis v. Auber, 1 Jac. & W., 526; Mitchell v. Winslow, 2 Story, 630; 2 Kent, Com., 625 (468) n.; 2 Hill. Mort., 381, sec. 7; Smithurst v. Edmonds, 1 McCarter, (N. J.), 408; Sillers v. Lester, 48 Miss., 513.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Louisiana.

The mortgage clause in the contract of lease of the 15th of January, 1867, executed by Sillers and Graham, could not operate as a mortgage, because the crops to which it relates were not then in existence. When the crops grew, the lien attached and bound them effectually from that time.

It is admitted that the cotton in question was one of those crops.

Ellett having bought the premises became clothed with all the rights of Sillers, touching the rent stipulated to be paid by Graham. The sheriff's deed conveyed the reversion, and the rent followed it as an incident. The lease passed by assignment to the grantee, and all its provisions in favor of the lessor inured to the benefit of the assignee. The appellants had full notice of the rights of Sillers. They read the lease a few days after its execution. Ellett also notified them of his rights and claim. The cotton went impressed with his lien into their hands. When they sold it they took the proceeds in trust for his benefit, and became liable to him for the amount.

The decree of the Circuit Court is affirmed.

Hector McNiell, Appts.,

v.

plies to his own use property subject to a mort- DAVID A. WILLIAMS, Seth W. Bolton, and gage or lien in favor of another, with notice of such lien, will be deemed a trustee to the extent of the lien, and will be bound to the mortgage or lien creditor for the property or its proceeds. In other words, a purchaser with

JAMES BANKHEAD.

(See S. C., 19 Wall., 563-572.)

notice is bound by all equitable liens, and is Party, when bound by decree-evidence as to— a trustee to the extent of such liens.

1 Story, Eq. Jur., sec. 395; 2 Story, Eq. Jur., secs. 1231, 1257; 2 White & Tud. L. Cas. Eq., part 1, pp. 97, 129; 1 Sanders, Uses & T., 348, 349; Legard v. Hodges, 1 Ves., Jr., 478; Collyer v. Fallon, 1 Turn. & R., 469; Calhoun v. Burnett, 40 Miss., 604.

Notwithstanding some want of harmony in the authorities, it is believed to be the settled doctrine, especially in the courts of the United States, that such a mortgage is perfectly good. When the parties intend to create a lien upon property not then in actual existence, it attaches in equity as soon as the person who grants the lien acquires the property. In this case, the making of the crop was the end and object of the lease, and it was the express intention of both parties that the lessor should

indispensable party.

1. One will be bound by a decree of the State court, if he was a party to the proceedings. 2. The bare title of the cause at the head of one or two orders, in which the name, George McGregor et al. appears as defendant, where neither the original petition nor complaint, the process nor anything else that would give light on the subject, is contained in the record, is not enough to show that anyone but George McGregor was defendant in the cause.

3. Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the

court.

[No. 232.]

Submitted Mar. 19, 1874. Decided Apr. 6, 1874.

NOTE--Necessary parties in equity-see note to Marshall v. Beverly, 5 L. ed. U. S. 97.

1873.

WILLIAMS V. BANKHEAD.

APPEAL from the Circuit Court of the Unit- his widow and heirs are not indispensable par

ed States for the Eastern District of Arkansas.

See detailed statement of the case by the court, prefacing the opinion.

Mr. A. H. Garland, for appellants: Williams, McNiell and Seth W. Bolton appealed from the decree below, and presented three grounds for reversal being a portion of the same relied upon by McNiell in his answer to Bankhead's amended and supplemental bill to a cross-bill, and which were continued and urged throughout the cause.

I. The court had no jurisdiction over the subject-matter of the suit as the whole question and rights of parties had been already heard and settled by a decree in the state court, in nowise annulled, reversed or even appealed from.

2. Mrs. Branch and the heirs of James H. Branch were indispensable parties to this suit, and no action could be had in it till they were brought in.

3. The cross-bill of Bankhead was erroneously entertained, as it made new parties to the

cause.

It is certain that the whole subjectmatter of this entire litigation was the lands or plantation of James H. Branch. In this case Bankhead had, as before shown, rested upon his mortgage of Sep., 1854, and asked foreclosure on that. Already there was a proceeding directly against these same lands, in which proceeding Bankhead was a party from the beginning. Both cases were then, in short, proceedings in rem. There were two jurisdictions holding or attempting to hold and dispose of these lands as a fund in court. The familiar principle of law is, even in matters of concurrent jurisdiction, that the court first getting possession of the controversy or of the property in dispute, must be allowed to dispose of it finally, and the proceedings of that court are as binding as if its jurisdiction had been exclusive.

Er parte Robinson, 6 McLean, 355; Wood v. Mann, 1 Sumn., 578; Buck v. Colbath, 3 Wall., 334, 18 L. ed., 257; Freeman v. Howe, 24 How., 450, 16 L. ed., 749; Taylor v. Carryl, 20 How. 583, 15 L. ed., 1028; Hagan v. Lucas, 10 Pet., 400; Smith v. McIver, 9 Wheat., 532; Abbott v. Sample, 25 Ill., 107; Riggs v. Johnson Co., 6 Wall., 166, 18 L. ed., 768; Taylor v. Taintor, 16 Wall., 370, 21 L. ed. 290.

There is not a rule of law more exacting than this, nor is there one which the courts are more uniformly particular in adhering to and in enforcing.

Ruggles v. Simonton, 3 Biss., 325; How v. Kane, 2 Chand. (Wis.), 222; Newman, Pl. & Pr., 485, n. 4.

That Mrs. Branch and the heirs of James H. Branch were indispensable parties in this proceeding, there can be no kind of doubt. The record shows, as before said, Branch had no other estate and they were helpless without their interest in these lands; and this proceeding, all of it, was to subject these lands to the payment of debts claimed to be liens on land. Bankhead's proceeding is on a mortgage direct, while Bolton's is on what is considered, in legal effect, in Arkansas, but a mortgage. Smith v. Robinson, 13 Ark., 534; Harris v. King, 16 Ark., 126; Moore v. Anders, 14 Ark., 633.

Then we have two proceedings here to enforce mortgages, the mortgagor being dead.

If

ties, then who are, and what is meant by indis-
pensable? If the proposition itself did not car-
ry conviction of its truth, the question has been
ruled upon countless times in this country.
Haynes v. Bessellieu, 25 Ark., 498; Crater v.
Frazier, 6 Ark., 269; Erwin v. Ferguson, 5 Ala.,
158; Doe v. McLoskey, 1 Ala., 708; Cole v. Col-
lett, 5 Litt. Sel. Cas., 48; Harris v. Bryant, 7 J.
J. Marsh., 376; Matcalm v. Smith, 6 McLean,
416.

That the cross-bill of Bankhead is an entirely "new departure," both as to parties and subject-matter, there is no question, and the exception to it should have been sustained on that ground. This court has expressly said new parties cannot be made by a cross-bill, as Bankhead attempted to do here. Shields v. Barrow, 17 How., 145, 15 L. ed., 162.

This case rules out altogether the cross-bill of Bankhead, and indeed the attempt made in this pleading has no friends anywhere, among the authors recognized in the profession.

Story, Eq. Pl. sec. 389; 3 Dan. Ch. Pr., 1742. Messrs. Clarke & Williams, for appellee: Objection is made that appellee's entire crossbill, both as to parties and subject-matter, is a new departure. On the contrary, it is Bourbon The cross-bill makes after the strictest sect. complainant in original bills the only defendant; and the debt and mortgage introduced in the original bill constitute its entire subjectmatter.

The supplemental cross-bill follows the fund of which we have seen this court had prior jurisdiction, and which any party interested, may follow against a pendente lite purchaser, which | Williams and Bolton were.

Story, Eq. Pl., sec. 342; Sedgwick v. Cleveland, 7 Paige, 287.

It is no longer a question of the right to acquire jurisdiction; but of the court's right, after jurisdiction of person and subject-matter are acquired, to afford proper relief.

The cross-bill may be in the nature of an original bill, seeking further aid from the court. and then the relief ought to be such as, in point of jurisdiction, it is competent for the court to give. Story, Eq. Pl., sec. 398.

It is true, the pendente lite purchasers were named as defendants, but they were not served with process, did not answer, and no decree was No one can complain, in had against them. fact they were not defendants.

There can be no question, according to Story, Eq. Pl., 339, of the court's right to allow a supplemental bill or petition in aid of the decree. This the court allowed, and it was filed. Bolton and Williams were brought before the court and answered without objection. The right to object was personal.

Story, Eq. Pl., 237, 544.

They chose to waive it at the time, it is now too late. McNiell cannot complain. The scep At ter has departed from Judah, and all interest in this fund from the House of McNiell. best, he is only a conduit, and in no event chargeable with it until he gets it.

Nor is Mrs. Branch a necessary party. This court would only refuse to proceed when it is evident that the subject-matter cannot be disposed of, and ample justice done.

Payne v. Hook, 7 Wall., 431, 19 L. ed., 262. Her interest is set out fully in the record, 185

and being junior to that of the appellee, as well as void, cannot be maintained here, unless this court shall consider itself absolutely concluded by the state court decree, in which event the relief prayed would be refused on that account, whether o not she was a party.

Statement of Case by the Court:

In 1853, James H. Branch, a cotton planter in Desha County, Arkansas, opened an account with McGregor, Alloway & Co., of New Orleans, as commission merchants, and in that and subsequent years became largely indebted to them for advances and supplies. In 1854 he executed to them an open mortgage on his plantation and slaves, to secure the balance of indebtedness, whatever it might be, from time to time. In 1859, the firm sued him in the Circuit Court of the United States for the Eastern District of Arkansas, for an alleged balance of $20,000. He denied that he owed more than $8,000, and in 1860 he filed the bill in this case for an injunction and an account, referring incidentally to the mortgage which he had given as part of the history of their transactions. James Bankhead, appellee, was a member of the firm of McGregor, Alloway & Co., and finally succeeded to the entire interest. He filed an answer to the bill, giving his version of the accounts and praying a foreclosure of the mortgage and sale of the plantation to pay the balance due. It seems that a cross-bill was also filed by him, but it is not contained in the record before us. The civil war having suspended the proceedings, the case was re-docketed in 1866. Branch died in 1867, and his administrator, Hector McNiell, one of the present appellants, revived the original chancery suit in his own name. In 1870, Bankhead filed a supplemental cross-bill, alleging that he had learned that Branch, when he gave the mortgage, did not have complete title to the plantation, but only a contract for the purchase thereof which he had not complied with, and that by proceedings in the State Court of Desha County, it had been decreed that, unless the balance of purchase money was paid, the property must be delivered up to the vendor, one Bolton, and that the payments which Branch had made, amounting to $3,666.66, with interest from 1854, should be refunded to his administrator, McNiell; and that by subsequent proceedings in the same case which Bankhead alleged to be fraudulent and collusive, this sum was directed to be paid to Mary E. Branch, the widow of James H. Branch, under a pretended marriage settlement. He prayed that this money might be paid to him on his claim. McNiell, the administrator of James H. Branch, and Seth W. Bolton, the devisee of Bolton, the vendor of the plantation, and David A. Williams, the tenant in possession of the plantation, were made parties to this supplemental crossbill. They answered it and excepted to it, and

it was ordered to be struck from the files.

It appeared from the answers of McNiell and Williams to the supplemental cross-bill and to a subsequent petition filed by Bankhead, that the plantation had come to the possession of Williams under the widow of James H. Branch, and that he held by virtue of a lease from her, at the same time having a contract for the purchase of the property from the administrator, as soon as the widow's claim should

be satisfied. A portion of the proceedings and a copy of the decree in the Desha County Court were annexed to the said supplemental crossbill showing, amongst other things, that the widow and minor children of Branch had appeared in that suit, and that the former had filed a cross-bill setting up her claim to the land or to the fund in question, which had been adjudicated in her favor.

In April, 1871, a decree was pronounced in the circuit court in favor of Bankhead for $8,000 with interest from 1860, with a direction that McNiell, the administrator of Branch, as soon as he should receive from Bolton the sum of $3,666.66 and the interest thereon, which, by the state court, had been decreed to be refunded, should pay it over to Bankhead, and leave was given to the latter to institute such further proceedings against Bolton, or others in possession of the plantation, as might enable him to obtain the benefit of this decree.

In pursuance of this last permission, Bankhead immediately filed a petition against McNiell, Bolton and Williams, alleging a conspiracy between them and Mary E. Branch, widow of James H. Branch, and one Francis M. Cash, administrator of Bolton, the vendor, to defraud him, Bankhead, out of the said sum of $3,666.66, by procuring the same to be paid over to the said Mary E. Branch, upon a pretended claim set up by her. The petition further alleged that the decree made by the Desha County Court, awarding the said money to Mary E. Branch, was fraudulently procured, he, Bankhead, not being a party to the proceedings. The petition prayed for a decree against Bolton, to compel him to pay the money into court or to the petitioner, and for a receiver to take possession of the land and receive the rents. Mary E. Branch and Francis M. Cash were not made parties, because, as the petition alleged, they did not reside in the State of Arkansas. The defendants, who were made parties, answered the petition, claiming, amongst other things, that Mary E. Branch was an indispensable party to the proceedings, and that the decree of the Desha County Court was conclusive in her favor. A decree was made in favor of Bankhead, that unless the defendants should pay him the said sum of $3,666.66, with the interest due thereon, by a certain day, the plantation should be sold to satisfy the original decree.

Appeals were taken from both the original and supplemental decrees.

Mr. Justice Bradley delivered the opinion of the court:

In this case James Bankhead obtained a decree for $8,000 due him from James H. Branch, and for the specific application by way of payment to him on said decree of $3,666.66 due to Branch's estate, for the re-imbursement of money paid by the latter on a plantation which he had mortgaged to Bankhead, but for which he had never acquired full title. The State Court of Desha County, in a suit brought therein, had decreed that the plantation must be delivered back to the vendor, and that the latter must refund the amount paid on it, which was the sum above stated. The state court, on a cross-bill filed by Branch's widow, had also decided that the re-imbursement money was in equity payable to her as her separate property

under a marriage settlement. But the circuit | party, unless the parties are too numerous to court in this case, in which the widow was not be brought before the court, when the case is a party, decreed that the same fund should be subject to a special rule. Second. Where a perpaid to Bankhead, to whom Branch had mort- son is interested in the controversy, but will gaged the plantation, and, in case it was not not be directly affected by a decree made in paid by the vendor in a certain time, the plan- his absence, he is not an indispensable party, tation should be sold to raise the amount due but he should be made a party if possible, and on the mortgage. The excuse for not making the court will not proceed to a decree without the widow a party was that she did not reside in him if he can be reached. Third. Where he Arkansas and could not be served with process. is not interested in the controversy between 570*] *The parties actually before the court the immediate litigants, but has an interest were one McNiell, the personal representative in the subject-matter which may be convenientof Branch, Bolton, the devisee of the vendor of ly settled in the suit, and thereby prevent furthe plantation, and Williams, the tenant in pos- ther litigation he may be a party or not, at session of the plantation, who had rented it the option of the complainant. from the widow of Branch, she having retained possession under the alleged marriage settlement. On the other hand, the defendants contended (and that is one ground of appeal) that Bankhead was a party to the proceedings in the state court, and was bound by the decree there made. This, however, was controverted by him. The other ground is that the widow of Branch is an indispensable party in this case.

In the present case, if the question were one of mere personal liability on the part of Bolton, McNiell and Williams, it might have been admissible to proceed without making the widow of Branch a party, inasmuch as she was not a resident of Arkansas, and could not at the time be made a party in the circuit court without being served with process in the district of Arkansas or voluntarily appearing to the suit. The Act to further the administration of justice, by which an order of publication for the appearance of non-resident defendants is provided for, if it would apply to the case, had not then been passed. But this is not a case of mere personal liability. It concerns the disposal of a specific fund, in which the widow claims an interest. If the sum of $3,666.66 mentioned in the decree is not paid, the plantation is directed to be sold in order to raise the amount of *Bankhead's claim. And [*572 this plantation is in the possession of the widow by her tenants. She is to receive the rents and profits thereof until her claim is satisfied by the payment of the said sum of $3,666.66, and the interest due thereon, awarded her by the Desha County Court. Her interests, therefore, are directly affected by the decree.

As to the first ground, it is undoubtedly true that Bankhead would be bound by the decree of the state court if he was a party to the proceedings. But he alleges that he was not a party, and the proof on the subject is not sufficient to show that he was a party. The record of the proceedings in the Desha County Court (since the war) was put in evidence, and is before us. It contains nothing to show that Bankhead, or his copartners, were parties to the suit, except the bare title of the cause at the head of one or two orders, in which the names of George McGregor, in one case, and George McGregor et al. in another, appear as defendants. Neither the original petition nor complaint, the process, nor anything else that would give light on the subject, is contained in the record as given to us. In the answer of McNiell to Bankhead's amended and supplemental cross-bill, which was struck from the files, it is positively alleged that he and his partners were made parties to the proceedings in the Desha County Court as non-resident defending to law. ants, and that a regular order of publication for their appearance was made and published, and that they actually knew of the suit and took part in it. But these allegations were not responsive to the bill, and we have nothing else on the subject sufliciently explicit to show the truth of the case.

The other ground of appeal, namely: that the widow was an indispensable party, presents a more serious question. On the one hand it is said that, not being a party, her rights 571*] *were not concluded, and that the only inconvenience arising from proceeding with the case without her was the double liability to which Bolton and the administrator of Branch became exposed by having to pay her and Bankhead both, under contrary decrees of different courts. The general rule as to parties in chancery is, that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows: First. Where a person will be directly affected by a decree, he is an indispensable

Under these circumstances we think that she was an indispensable party.

The decree, therefore, must be reversed, and the cause remanded to be proceeded in accord

*BEN HOLLADAY, Plff. in Err., [*606

v.

ANTHONY DAILY.

(See S. C., 19 Wall., 606-611.) Construction of power of attorney.

A power of attorney to sell and convey real property, given by a husband and his wife in general terms, without any provision against a sale of the interest of either separately or other circumstance restraining the authority of the attorney in that respect, authorizes a conveyance by the attorney, of the interest of the husband, by a deed executed in his name alone.

[No. 258.]

Argued Mar. 26, 1874. Decided Apr. 6, 1874.

IN

N ERROR to the Supreme Court of the Territory of Colorado.

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