The jurisdiction of the circuit courts of the To sustain the exception to the answer, or to United States in each particular case is not exgive relief upon the bill without an answer, hausted by the rendition of the judgment or upon the idea that the fraud was not a fit sub-decree, but continues until that judgment or ject of inquiry upon a bill by the actors, contrivers, and participators in the fraud and covin, was in contradiction to the established principles of equity.

The cause which had moved the complain-for the appellees cited many decisions of the ants to come into equity for relief did not curtail the powers and jurisdiction of the court to hear and determine any and every equitable defense to the bill. Fraud, covin, and collusion in the plaintiffs, had and used in the proceedings on which they relied, was an equitable defense, a bar to the relief prayed by the bill. That the judgment creditor, C. Ford, the de

taken to the answer of Ford, and the opinion of the judge in sustaining the exception, all seem intended to drive C. Ford into the State courts of Louisiana, to seek satisfaction of his 154*] judgments rendered in the *Circuit Court of the United States, to confine the process of execution to the mode of proceeding under the law of that State.

To all those arguments and citations, I reply, that the State of Louisiana has rightful authority to regulate her own courts and modes of executing their judgments, but has no rightful authority to regulate the modes of proceeding and processes of execution of the courts of the United States.

The jurisdiction of the courts of the United States, and the process of execution of their judgments and decrees, depend upon the Constitution of the United States and the laws made by Congress in pursuance of the Constitution, not upon the laws of the States. The laws made by Congress in pursuance of the Constitution "shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding." So the Constitution of the United States (art. 6, sec. 2) declares.

Any law of the State contrary to the law of the United States, or impliedly or expressly prohibiting the execution of the process of the courts of the United States within the State, in a manner different from that prescribed by the law of the State to her own courts, would be null and void.

*The Judicial Department of the gov-[*155 ernment of the United States, in relation to the extent of its jurisdiction, the distribution of its powers between the Supreme Court and the inferior courts, the supervising power over the decisions of the State courts in specified cases, the tenures of office of the judges, the provision for the adequate support of the judges, their responsibility, and the mode of appointment, was constructed with great wisdom, caution, and deliberation. Profiting by history and examples of the past, the sages who framed the Judiciary Department looked to the future with anxious desire to preserve the Union, to maintain peace at home and abroad, so far as an impartial and enlightened administration of justice can conduce to those ends. Considerations of the highest importance demand that the supremacy of the laws of the Union, and the judicial cognizance assigned to the courts of the United States, shall be maintained in their full extent and proper vigor.

The jurisdiction in controversies between citizens of different States, and in questions of conflict of State laws with the Constitution and laws of the United States, forms an important provision for establishing justice and preserving domestic tranquility. Past experience of "fraudulent laws, which had been passed in too many of the States" before the federal Constitution was proposed, taught the framers of that compact to apprehend that the spirit which had produced those would in future produce like instances, or assume new The differences between the process of ex- shapes with like evil tendencies; therefore the ecution of the judgments of the courts of Constitution established particular guards the United States, as regulated by the laws of against such evils, one of which is the jurisdicthe United States, and the process of execution of the federal courts in controversies betion of the judgments of the State courts as tween citizens of different States. Multiplied regulated by State laws, have been the subjects instances, which have occurred since the fedof solemn argument, matured consideration, eral Constitution was adopted, attested by the and decision in the Supreme Court of the Unit-records of this court, prove but too well that ed States.

In the cases of Wayman v. Southard, 10 Wheat. 1; The Bank of the United States v. Halstead, 10 Wheat. 54; Suydam v. Brodnax, 14 Peters, 67, the laws of the United States regulating the process of modes of executing the judgments of the courts of the United States were considered, expounded, and adjudged.

In the two former, the certificates of the decisions and mandates expressly declare, "That the statutes of Kentucky in relation to executions, which are certified to this court, are not applicable to executions which issue on judgments rendered by the courts of the United States" (10 Wheat. 50); "cannot operate upon, bind the mode in which the venditioni exponas should be enforced by the marshal, and forbid a sale of the land levied upon, unless it commanded three fourths of its value." 10 Wheat. 65.

The decision in Suydam v. Broadnax declared, that the law of the State of Alabama, which commanded that claims of creditors upon an estate declared to be insolvent should be prosecuted before the commissioners appointed to manage the estate, has no binding force whatever on the circuit courts of the United States; and the right of said circuit courts to take cognizance of claims against such an estate was undoubted, the statute of Alabama to the contrary notwithstanding. 14 Peters, 67.

the apprehensions of the framers of the Constitution were not idle, nor their foresight and prudent provisions for arresting the evils unprofitable.

III. Upon the bill and the transcript of the proceeding in the Parish Court, exhibited thereby to make title to the property claimed by the complainants, now appellees, by their own showing they have not the title to the property.

They, said Emeline and Archibald, were in a fiduciary capacity, the one as tutrix (or guardian), the other sub-tutor (or under-guardian), and therefore not capable in law to become purchasers at those sales.

The purchase money was not paid; no possession was delivered; the whole contrivances of debts claimed against the estate of her testator, the judgments in favor of Stephen Douglas and of said Emeline, respectively, were false, fraudulent, and covinous; the sales and pretended purchases were shams, simulations, deceitful, illegal, and passed no title to the said Emeline and Archibald.

Upon this point I cite the case decided at the last term of this court, Michoud et al. v. Girod et al. 4 Howard, 553–555, etc.

*That opinion is drawn with such [*156 perspicuity, research, and demonstration, that nothing is left to be supplied by me.

It is of itself an example of overhauling and

!

relieving against the iniquities committed by | delivery and possession, where there was no the Court of Probate and Parish Court of Loui- adverse possession at the time of the sale. siana, in proceedings similar to those of the Parish Court of Madison relied on by the complainant.

The incapacity of the tutor, or guardian, to purchase at such a sale is one of the points adjudged in that case.

Such a possession is nowhere alleged or suggested in this case, and could not, indeed, have existed, because all the parties in interest were before the court when the decrees were made by the Court of Probates, as appears by the transcript of the record exhibited with the bill. I have labored this case because of the value The bill itself avers that the appellees were in in controversy, but more on account of the con- possession long before the issuing of the exesequences in all time to come, for good or for cutions; and the only denial of the answer is evil, which hang upon the decision of this ap-as to the lawfulness of the possession. Upon peal in this way or in that. Many things I this point, the case of Fortin v. Blount, 1 Marhave said which might perhaps have been well tin, N. S. 179; 2 Cond. Rep. 429, was referred omitted. Some things I have intentionally omitted which might have been said, which will be supplied by the intelligence of the court. But, ex dictus, et ex non dictus, I pray the decree of this court for the appellant; that the injunction be dissolved and the bill dismissed, so that the appellant may have execution of his judgments.

Mr. Meredith, for the appellees:

to.

The first proposition, then, appeared to be clearly sustained under the Louisiana jurisprudence; that is to say, that the appellees were in possession of the property upon which the appellant's executions were levied by adjudications which passed the title to them.

II. The second proposition, it was contended, was equally clear upon authorities. It is held Upon the facts disclosed by the record, the as settled, in the courts of Louisiana, that no counsel for the appellees, in the oral argument man can take the law into his own hands, and, which he had the honor of addressing to the ex mero motu, undertake to render himself juscourt, when the case was called in its order tice; that, however good his title may be, he upon the calendar at the present term, submit- cannot take possession of property without ted two propositions which he respectfully form of law; and that the courts will not, in a insisted were fully sustained by an uniform possessory action, investigate his title, but will series of decisions of the Supreme Court of restore the possession, and leave him to his Louisiana, establishing them as fixed rules of petitory action. It is equally well settled, that property in that. State. They were the follow-what one cannot do by himself, he shall not be ing: permitted to do through the instrumentality of

1. That the appellees, at the time the execu- ja mere ministerial officer-such as a sheriff or tions were levied, were possessed of the prop-marshal-acting under his directions and orerty seized, under and by virtue of judicial ders, and under pretense of judicial authority, sales, translative of title, as by public and au- disturbing third parties in the possession and thentic act. enjoyment of their property, leaving them to the uncertain and inadequate remedy of action for the trespass, against the officers, or to follow the execution creditor, perhaps into a distant State, in quest of satisfaction. If such creditor believes that the title of the party in possession is founded in fraud, and that the property is liable to his execution, the law imposes upon him the duty of bringing his revothe satisfaction of his judgment. This he is bound to do first; he cannot forestall or provoke the inquiry by a seizure under execution; and should he attempt to do so, the courts will enjoin the proceeding. This principle has its foundation in the Roman and Spanish laws, and has been the established jurisprudence in Louisiana from the earliest period, and is free from all doubt and conflicting decisions. It imposes no hardship on the plaintiff in the execution, because a *revocatory action for [*158 cause of fraud is one of the plainest and most simple remedies in practice in the courts of that State; in which, if the plaintiff succeeds, the sale is avoided, and the property restored and subjected to his claim. În such an action the parties are entitled to a jury. If the judgment be in a court of the United States, and the creditor prefer that jurisdiction, it is submitted that a bill on the equity side would afford every relief that his case would require.

2. That the appellees being so possessed the appellant had no right, on a suggestion of fraud, to treat the proceedings of the Probate Court as null and void, and cause his executions to be levied on the property; but that the fraud alleged by him could only be inquired into in an action to set aside the sales, under which the appellees claimed the possession and title; in which, if he should succeed, the prop-catory action to annul the title and subject it to erty would became liable to the operation of his judgments. Until when, the appellees had a right to be protected by injunction in the possession and enjoyment of the property.

I. Upon the first proposition, as to the legal effect of the adjudications of the probate sales upon the title and possession, the counsel for the appellees referred to the following decisions: Zanico v. Habine, 5 Martin's Rep. 372; 1 Condensed Rep. 384; Bushnell v. Brown, 8 Mart. Rep. New Series, 157; 4 Cond. Rep. 466; Marigny v. Nivet, 2 Louisiana Rep. 498; De Ende v. Moore, 2 Mart. Rep. N. S. 336; 2 Cond. Rep. 675; La Fon's Executors v. Phillips, 2 Martin, N. S. 225; 2 Cond. Rep. 157* 644. *These cases all concur to show that in judicial sales the proces verbal is sufficient evidence of title; and that neither deed from the officer making the sale, nor act under the signatures of the parties, is necessary to perfect it. Such, indeed, are the express provisions of the Civil Code. See articles 2586, 2594, 2601.

In support of this proposition and these views, the counsel for the appellees referred to Further, the adjudication, being by public | the following decisions: St. Avid v. Wiempren and authentic act, was complete evidence of der's Syndics, 9 Martin, 648; 2 Cond. Rep.

39; Barbarin v. Saucier, 5 Martin, N. S. 361; 3 Cond. Rep. 577; Henry v. Hyde, 5 Martin, N. S. 633; 3 Cond. Rep. 689; Peet v. Morgan, 6 Martin, N. S. 137; 3 Cond. Rep. 780; Yocum v. Bullitt, 6 Martin, N. S. 324; 3 Cond. Rep. 858; Trahan v. McManus, 2 La. Rep. 214; Childress v. Allen, 3 Ibid. 479; Brunet v. Duvergis, 5 Ibid. 126; Samory v. Herbrard, 17 Ibid. 558; Laville v. Hebrard, 1 Robinson's Rep. 436; Fisher v. Moore, 12 Ibid. 98. In Henry v. Hyde, and Yocum v. Bullitt, above referred to, the question arose, in a case exactly like the one under consideration, where property had been seized in execution, and an injunction had been granted to the party claiming it by purchase, from or under the defendant in the execution, as the former owner. Indeed, injunction is the remedy expressly given by the law of Louisiana. Code of Prac-administration of the real and personal estates tice, art. 298, n. 7.

It may be remarked, that the appellant instituted his suits in the Circuit Court, after the letters testamentary had been granted by the Court of Probates to Stephen Douglas, which was on the 26th of May, 1838; at all events, the judgments were subsequent to the grant of the letters. Why did he seek the jurisdiction of the Circuit Court? Not from ignorance, because be states in his answer that he "had expressly ordered his agent to avoid the State courts altogether, for reasons sufficient, and to sue in 161*] the federal courts *only." What reasons? The jurisdiction of the probate courts in Louisiana has been shown, and it is so exclusive that it has been repeatedly decided by the Supreme Court of that State, that creditors have no right to enforce their claims by action in any other forum (De Ende v. Moore, 2 Martin, N. S. 336; 2 Cond. Rep. 675; La. Fon's Executors v. Phillips, Ibid. 225; Ibid. 644); and for this just and obvious reason, that such a right would have a tendency to defeat one of the great objects of all testamentary systems, an equal distribution of assets among all the creditors of the decedent. This was exactly what the appellant most desired to avoid. It was to overreach the other creditors to obtain more than his just dividend at their expensethat, in fraud of the law of the State, he brought It is, undoubtedly, a general rule that all qui his suits in the Circuit Court. If he fails in the negotia aliena gerunt are incapable of purchasattempt, the consequences are of his own seek-ing, for their own benefit, property in which ing. But he has still a locus penitentiæ, for, by the Civil Code of Louisiana, articles 1060, 1061, creditors who omit or neglect to present their claims are entitled, even after final distribution, to an equal dividend with those who have been more diligent; to be made up by contribution from the legatees in the first instance, and if there are none, or the amount of legacies be insufficient, then by the creditors who have been paid, so as to put all upon equality.

port his opposition by any evidence whatever, | "remit or refer" the judgments recovered by and the court very properly overruled and dis- the appellant against the executor of James S. missed it with costs. It is true that the appel- Douglas to the tribunals of the State of Louilant, in his answer, states that the attorney had siana for execution or satisfaction; or to interno instructions or authority to file such a peti- fere with the rightful jurisdiction of the Circuit tion; and the attorney himself acknowledges Court over those judgments; or to claim that that fact. Had this disavowal been made in it should be regulated by any other process or the Probate Court in proper time, supported by execution than that which is prescribed by the affidavit, the court no doubt would have noticed laws of the United States for their courts. The it. But surely it cannot be contended that it appellees do not deny that the writs of fieri facan now be made, in a collateral proceeding, cias issued regularly upon the judgments, and and before a different tribunal. In contempla- that the marshal acted regularly in the pertion of law, therefore, and in point of fact, the formance of his duty, according to their manappellant was a party to the proceedings, from date. Their only complaint is, that in obedience, which he took no appeal, though the law al- not to the writs, but to the orders and direclowed him one, but by his executions attempted, tions of the appellant, the marshal has seized • in the language of one of the cases, "to seize and taken in execution their property, instead at once, and by short hand," property which in of the property of the defendant in the judgthe progress of those proceedings the appellees ments; and their only claim is to have the queshad purchased under the sanction of judicial tion of property tried by the law of Louisiana; decrees. If he had taken an appeal it would and not before the tribunals of that State, if the have been competent for him to allege the frauds appellant should prefer the forum which he at of which he now complains, and, establishing first selected; but if in that forum, by the law them by proof, to set aside the whole proceed- of that State, which, as it had been shown, ings. But that he cannot do collaterally, as he does not permit a party to take property in exehas attempted in his answer. cution, claimed by a third person, upon a suggestion or allegation of fraud, without first establishing the fraud by judicial decision. This the appellees respectfully insist that they have a clear right to ask, under the provision of the thirty-fourth section of the Judiciary Act of 1789, in the exposition *of which [*162 Chief Justice Marshall, delivering the opinion of the Court in Wayman v. Southard, 10 Wheat. 25, and speaking of judgments in the courts of the United States, puts the very case in the following words: "If an officer takes the property of A to satisfy an execution against B, and a suit be brought by A, the question of property must depend entirely on the law of the State.”

2. The second proposition of the counsel for the appellant may be safely assented to. The plenary power of the courts of the United States to carry into execution and full effect their judgments and decrees is unquestioned. Nor has any attempt been made, in this case, to

3. It is lastly contended, that the appellees were incapable in law of becoming the purchasers of the property they now claim; and that, therefore, no title passed to them under the sales made in virtue of the two decrees of the Court of Probates. This incapacity, it is said, arose from the fact that Emeline Douglas, who has since intermarried with Maxwell W. Bland, was at that time the tutrix of her minor children, and that Archibald Douglas, the other purchaser, was their under-tutor, by the appointment of the Court of Probates. This the record itself shows, and is admitted.

those they represent are interested. And this not on the ground of fraud, but because the law will not allow one, sustaining the character of an agent, to create in himself an interest opposite to that of his principal. And it is admitted that this rule has been applied to executors, administrators, trustees, guardians, tutors, curators, judicial officers, and all other persons, who, in any respect, as agents, have a concern in the disposition and sale of the property of others, whether the sale is public or private, or judicial, bona fide, or fraudulent in point of fact.

But this rule is not inflexible. Where it is for the interests of the parties concerned, a court will permit a person, standing in any of those