therefore, not re-examinable here, on error to that court.

To give this court such appellate jurisdiction by express provision of the 25th section of the Judiciary Act, it was necessary that the Supreme Court of Indiana should have decided against their validity.

Mr. Justice Grier delivered the opinion of the court:

Does this case come within the Judiciary Act, Sept. 24, 1789, ch. 20 (1 Stat., 173) ?

The bill filed in the state court is for the foreclosure of a mortgage. The defense set up by the mortgagor was, that the consideration of the note which the mortgage secured was the purchase money of the land mortgaged; that the title to one of the tracts was through a patent of the United States to Hannamah Hewett; that this patent did not convey a good title, because in 1832 the United States concluded a treaty of purchase of a large tract of country with the Pottawatomie Indians; that by the terms of this Treaty a section was reserved for an Indian named To-pen-na-be, to be located under direction of the President; that before the date of the patent to Hewett for this quarter section the whole section, including it, had been assigned to To-pen-na-be.

The bill alleged, in substance, that in the early part of 1818, one John Sloan purchased from David Musick fifty arpents of land, to be taken out of either one of three tracts of land in the County of St. Louis.

The bill further states that, at the time of the purchase, a deed was executed by Musick to Sloan and the consideration was fully paid, and that, immediately after, the said Sloan went from St. Louis to Natchez and died in about 1818, leaving a widow and two infant children living in Lexington, Ky.; that they were apprised of the fact that their father had purchased said fifty arpents of land, but after long and repeated examinations, could not find the deed, and they charge that it was mislaid or lost; that, on the 19th January, 1820, Musick and wife sold and conveyed to R. Duncan one third of said land, by deed, recorded in the Recorder's Office of St. Louis County, which contained provisions that, as Musick had sold and conveyed fifty arpents of said premises, the said fifty arpents should be deducted; that Duncan was to have the one third of the remainder; that the said fifty arpents were the same charged as having been sold and conveyed to Sloan; that the title failed to all the other tracts except the Motard tract; that the fifty arpents so sold to Sloan were to have been al

The Supreme Court of Indiana decided that the patent to Hewett was a valid grant of the 474*] land. This decision will not bring the case within the 25th section. Nor can we claim it because of the title set up under the Treaty with the Indians, because neither To-pen-na-be, nor anyone claiming under him, is party to the

suit.

This court has decided in the cases of Owings v. Norwood, 5 Cranch, 344, and of Henderson v. Tennessee, 10 How., 311, that "in order to give jurisdiction to this court the party must claim the title under the Treaty for himself, | and not for a third person, in whose title he has no interest."

This case is, therefore, dismissed for want of jurisdiction.

RICHARD PINDELL, Appt.,

v.

NAPOLEON B. MULLIKIN et al.

(See S. C. 1 Black, 585-587.)

to Duncan, Musick conveyed to other parties the other two thirds of said tract; that April 14, 1831, Musick and wife conveyed to Charles Mullikin all their title to the fifty arpents aforesaid, and that in 1838 proceedings were had in partition, and said Motard tract was divided among the claimants; that all the grantees of Musick had notice of Sloan's title; that in the proceedings of partition, 9 81-100 arpents were allotted to Charles Mullikin of said Motard tract; that another part not named or described in the bill was allotted to Duncan, who had conveyed it to divers defendants; that Mullikin died and his interest had descended to his children, appellees, here; that said John Sloạn, and one child, are dead, leaving but one heir, J. R. Sloan, who did not become of full age until 1834, and who sold to complainant. Complainant asks for decree for fifty arpents undivided out of that allotted to Duncan in the partition; but if he cannot have that, asks to have the 9 81-100 arpents allotted to Charles Mullikin, vested in him.

The defendant demurred to the bill, which was sustained as to all but the appellees; who answered, substantially denying the allegations

adverse possession.

Submitted Feb. 21, 1862. Decided Mar. 10, 1862,

PPEAL from the Circuit Court of the UnitA ed States for the District of Missouri.

Pindell, the present appellant, filed his bill in chancery in the court below, against the present appellees and other parties.

NOTE.-Adverse possession; what is necessary to constitute; requisites of; occupancy necessary to constitute-see notes, 5 L. ed. U. S. 398; 9 L. ed. U. S. 624; 40 L. ed. U. S. 215.

of the complainant and those under whom he claims, and also possession for more than twenty years. The circuit court dismissed the bill, and the complainant appealed to this court. Mr. Thomas D. Monroe, Jr., for appellant.

Messrs. S. T. Glover and J. R. Shepley, for appellees:

But if we consider contrary to the evidence, as alleged in the bill, that a deed for the land was executed and was lost, then there can be no relief, for there has been too great laches in the

case.

Laches much less flagrant than this, will prevent a court of equity from granting relief, even in a clear ease.

ers, 8 Pet., 420; Pratt v. Carroll, 8 Cranch, 471; Moore v. Blake, 1 Ball. & B., 69; Boone v. Missouri Iron Co., 17 How., 340.

The fact that the condition of the title and the value of the land has very materially changed, will prevent the court from interposing.

The representatives of Sloan knew of these rights all the time, yet thought it not of sufficient value to move towards instituting proceedings to obtain a decree of title, until they learned that the Motard tract had been confirmed. It was not until the termination of the case of The City of St. Louis v. Toney, reported in 21 Mo., 243, when the title to the Motard tract was finally established, as against the commons title, that any suit was instituted. This was a virtual abandonment of the pretense of title.

It is well settled, that when there has been a great change in the condition or value of land, courts of equity will not assist.

Brashear v. Gratz, 6 Wheat., 528; Rogers v. Saunders, 16 Me., 92; Cooper v. Brown, 2 McLean, 495.

Equity will not relieve, by decree of title upon a lost deed alone, unless the complainant is in possession of the land.

1 Story, Eq. Jur., sec. 84.

Actual adverse possession of this land has been proved for more than twenty years, so that to decree title would be to put the party in a better position than if he had had a regular deed of the land duly recorded. In that case, if he had brought ejectment, he could not prevail.

Mr. Justice Catron delivered the opinion

Decree of the Circuit Court, affirmed.

WATTS SHERMAN, Plff. in Err.,

v."

JAMES M. SMITH, Receiver of Oliver Lee & Company's Bank at Buffalo.

(See S. C. 1 Black, 587-594.)

Charter of N. Y. Bank, when not a contractpower of Legislature to alter or repeal—charter subject to.

An article in the charter of a New York Banking this association shall not be liable in their individAssociation which declares: "The shareholders of ual capacity for any contract, debt, or engagement of the Association,' being a mere attempt to reenact a provision of the law, cannot be regarded as a contract in any legal sense of the term and, of course, not within the protection of the provision of the Constitution of the United States.

which reserved to the Legislature the power to al

The 32d section of the New York Banking Law

ter or repeal the act, by necessary construction reserves the power to alter or repeal all or any one of these terms and conditions or rules of liability, prescribed in the act.

The Articles of Association are dependent upon, and become a part of, the law under which the Bank was organized, and subject to alteration or repeal, the same as any other part of the general system.

Argued Feb. 21, 1862. Decided Mar. 19, 1862. N ERROR to the Supreme Court of the State of New York.

I

This action originated in a statutory proceeding in the Supreme Court of the State of New York, in which Watts Sherman, the present plaintiff in error, was assessed as a stockholder in Oliver Lee & Co.'s Bank, a Corporation which had been declared insolvent. Sherman denied his personal responsibility as stockholder, and appealed to the general term of the Supreme Court. The general term affirmed the decree entered at special term against Sherman, and Sherman appealed to the Court of Appeals. The Court of Appeals affirmed the judgment of the General Term, and remitted the case to the Supreme Court for the entry of final judgment. Sherman then brought the case to this court by writ of error.

The case further appears in the opinion of the court.

Messrs. John K. Porter, John Van Bu

The bill admits that Mullikin's heirs hold the legal title, and they prove that a division of the land confirmed took place among various owners. and that about ten arpents of it were al lotted to Mullikin, the ancestor. This occurred in 1836; that immediately after the partition, Mullikin took possession of the land allotted to him, and he and his heirs have held it in possession ever since.

The claim set up by the bill is barred by twenty years' adverse possession. If, however, 587] this defense was not conclusive of the controversy, our opinion is, that no sufficient evidence that the contract alleged to have once existed is proved; and that the decree below,

It is not denied that the contract between the associates was lawful at the time it was made, constitutionally impaired without the consent and the question now is, whether it could be has been so impaired by the Act of 1849. of the contracting parties; and if so, whether it

The defendant in error claims that the Act of

1849 imposes, upon the shareholders of the Association, liability for its debts through a power reserved in section 32 of the Act of 1838.

First. The proposition conflicts with a principle primary in the law of contracts, and antecedent to art. 1, sec. 10, subd'n I of the Federal Constitution, that a contract is founded in mutual consent. Had the Act of 1838 been silent upon the subject, two effects would have followed, upon the organizing of the Associa

tion: the latter would have come into a full status of liability; the shareholder would have been simply creditor upon a negotiable debt, with a right to payment of principal on dissolution of the Bank, and of earnings in the interim, and subject to a preference in the other creditors to the assets; with perfect exemption from the liabilities of the Bank. Section "23" is at least declaratory of this exemption. To impose upon him liability for the Bank, is to impose a contract having form without essence, and is opposed to the fundamental principles of legislation, and would render the statute an Act against "common reason and common right."

The power of alteration reserved in sec. 32, Act of 1838, must be referred to the subject matter of the Act, the Corporation, and those provisions which relate to its modus operandi. 1 Pars. Cont., 399; Miller v. N. Y. & Erie R. R. Co., 21 Barb., 513, 519; Ham v. M'Claws, 1 Bay, 93; Calder v. Bull, 3 Dall., 398, opinion of Iredell J.; Bennett v. Boggs, 1 Bald., 74, opinion of Baldwin, J.; Schuyler v. McCrea, 1 Har. & J., 249, opinion of Chase, Ch. J.; Commonwealth v. McCloskey, 2 Rawle, 374, opinion of Rogers, J.; Allen v. McKeen, 1 Sumn., 302

and 303.

Second. The contract between the associates, having been entered into lawfully in 1844, was protected by the Federal Constitution from encroachment by subsequent legislation.

Constitution U. S., art. 1, sec. 10, subd. 1. I. The Act of 1838 not only provided for the creation of banking associations, but also secured to the associates who might accept its provisions, the right of determining their status as shareholders in respect to the future creditors of the banks organized under it.

1. It invited citizens to associate for the purpose of conducting the business of banking. Laws of 1838, 249, sec. 15.

2. It invited them to enter into agreement as between themselves, by Articles of Association preceding the organization, defining the terms and conditions on which they consented to become so associated.

3. These Articles of Association were to be the private contract of the several shareholders with each other and the Association, as distinguished from the contract with the public, embodied in the Act itself, and the certificate of organization.

4. The matters required to be stated in the certificate of organization were specifically enumerated, and this certificate alone was to be placed upon the public records.

Laws of 1838, 249, sec. 16.

All that was not provided for by the Act or the certificate, was left to the associates to be regulated by private contract in their Articles of Association.

In Matter of Bank of Dansville, 6 Hill, 371. The Legislature did not reserve a right to make a new contract as between the shareholders, or to impair their rights under the contract it authorized them to make with each other and the Association.

The Legislature reserved the right to abridge, enlarge or revoke the corporate franchises it conferred, but not to alter private contracts of the shareholders, by revoking a power after its execution, together with the contract executed under it.

State Bank of Ohio v. Knoop, 16 How., 385. The right to charge one person, without his consent, with the payment of another's debts, was not inherent in the Legislature, and it did not reserve powers it did not possess.

Miller v. New York & Erie R. R. Co., 21 Barb., 513, 519.

The Legislature, it is true, could make it a condition to the creation of a banking association, that the associates should consent to assume its debts, and in that case the event would be evinced by acceptance of the corporate grant. Matter of Empire City Bank, 18 N. Y., 210. The clauses are to be read together, and for the purposes of the argument, it may be conceded that the contract thus read is, that the Legislature may deal at will with the corporate rights it grants, and the property which the associate commits to the custody of the Corporation; but in respect to all his other property and all his personal rights, they shall remain, unless he otherwise elect, as if he had never be come an associate.

The Legislature did not acquire a right to impair the contract of 1844, and to charge the individual associates with the debts of the Bank, by reason of the Association continuing to issue bills after the day designated in the Act of 1849.

Ang. & Ames, Corp., secs. 537, 536; The L. & C. Co. v. Town, 1 N. H., 44; Winter v. Muscogee, 11 Ga., 438; Kean v. Johnson, 1 Stock., 401; Ex parte Johnson, 31 Eng. L. & E., 430; 21 Barb. 519; Livingston v. Lynch, 4 Johns. Ch., 573, 582, 595 to 598; 1 Sumn., 314; Laws of 1849, 340, sec. 3.

The contract of the State with the associates and their executed contract with each other and the Association, on the faith of which they became members of the Company, could not be altered or impaired by the State without the consent of the associates.

Gorden v. Appeals Tax Court, 3 How., 133, 138, 147; Ang. & Ames, Corp., sec. 537; Hartford R. R. Co. v. Croswell, 5 Hill, 383. 386; Green v. Biddle, 8 Wheat., 2, 92; Dodge v. Woolsey, 18 How., 331, 359; Piqua Bik v. Knoop, 16 How., 369; Allen v. McKeen, 1 Sumn. 278, 313, 314; Livingston v. Lynch, 4 Johns. Ch., 573, 582, 595 to 598; Pearce v. M. & I. R. R. Co. and P. & I. R. R. Co. 21 How. 442.

Third. The Act of 1849 derives no aid in respect to pre-existing banks from the personal liability clause in the present Constitution. Constitution of 1846, art. 8, sec. 6.

The Federal Constitution protects contracts from encroachment by the State Constitution, no less than by Acts of the Legislature. "No State" shall pass "any law impairing the obligation of contracts."

Dodge v. Woolsey, 18 How., 331; Same Case, 6 McLean, 145, 146.

Fourth. The Legislature did not intend, by sec. 32, to reserve power over the status of the shareholders.

In grants, private and public, general words are controlled by special words, when the two are employed upon the same subject-matter and would otherwise conflict.

Section 19 provides that the rights of creditors shall not be impaired; and section 23 declares that the shareholder shall not be liable for the debts, unless by consent specified by the

The Northern R. R. Co. v. Miller, 10 Barb., 260, 280; White v. The Syracuse & Utica R. R. Co., 14 Barb., 559, 560; Buffalo & N. Y. City R. R. Co. v. Dudley, 4 N. Y., 336, 348, 354; Schenectady & Sara. P. R. Co. v. Thatcher, 11 N. Y., 114.

Fourth. The plaintiff in error must establish, in order to maintain his position, not only that the States has entered into a contract with the associates not to impose any personal liability on them for any portion of the debts or liability of the Association, but also that the Legislature has not reserved to itself the power to change such contract.

Stanley v. Stanley, 26 Me., 191; Charles River Bridge v. Warren Bridge, 11 Pet., 549; Ohio Life Ins. & Trust Co. v. DeBolt, 16 How., 416, 436; Bank of Columbia v. The Atty-Gen., 3 Wend., 588, 609.

In the cases of Piqua Branch of State Bank of Ohio v. Knoop, 16 How., 369, and of Dodge v. Woolsey, 18 How., 331, there was an express contract in the law under which the bank was organized.

Mr. Justice Nelson delivered the opinion of the court:

This is a writ of error to the Supreme Court of the State of New York.

The proceeding was instituted under an Act of the Legislature of the State of New York, to enforce the responsibility of stockholders in certain banking corporations or associations.

The judge before whom the proceedings were instituted declared the Bank insolvent, and appointed Smith, the defendant in error, the receiver to take charge of its assets, and to perform such other duties as the law imposed.

The case was afterwards referred to Judge Hall, as a referee, to apportion the debts and liabilities of the Bank which had been contracted after the first day of January, 1850, and remained unsatisfied among the stockholders, ratably in proportion to their stock, according to the principles declared by an Act passed April 5, 1849, and report to the court. Judge Hall reported that the capital of the bank was $170,000, and its indebtedness $502,944.22; and further, that the assets in the hands of the receiver, and an assessment upon the stockholders of an amount equal to the capital of the Bank, would be insufficient to discharge its debts and liabilities, and hence apportioned upon each of the stockholders an amount equal to the amount of stock held by them respectively in the Bank. The sum of $7,000 was assessed upon the plaintiff in error.

The referee further reported, that this Bank was an association formed 23d April, 1844, under the General Banking Law of the State, passed 18th April, 1838; and inserted in his report a copy of the articles of the association, among which is one that declares: "The share591*] holders of this Association shall not be liable in their individual capacity for any contract, debt, or engagement of the Association."

The counsel for the plaintiff in error appeared before the referee and objected to the assessment, on the ground, among others, that the clause in the Articles of Association above referred to, and which were authorized by the General Banking Act of 1838, constituted a con

tract; that the stockholders were not to be individually liable for the debts of the Association, which were protected by the Constitution of the United States; and that the provision of the Constitution of the State of New York, of 1846, imposing upon them individual liability, and the Act of the Legislature of 1849 carrying it into effect, were inoperative and void. counsel further objected, that a reservation by the State, in express terms, of a power to impair by subsequent laws the obligation of contracts between individual citizens, lawful at the time it was made, would be in conflict with the Federal Constitution.

The

Numerous other objections were taken to the assessment before the referee, but the above are the only ones material to notice in this court.

The referee overruled these objections, and the report was afterwards confirmed by the judge.

This judgment, confirming the report, was appealed from to the Supreme Court of the State, which affirmed it. An appeal was afterwards taken to the Court of Appeals, the highest court in the State of New York, in which the judgment in the Supreme Court was affirmed, and the record remitted to the court to have the judgment carried into execution.

As this case comes before us under the 25th section of the Judiciary Act, the only question involved is, whether or not the court below erred in denying a right set up by the plaintiff in error under the Constitution of the United States; in other words, whether the Constitution of the State of New York of 1846, or the Act of the Legislature of 1849 or both, which subjected the stockholders of the Bank to personal liability for its debts accruing after the 1st day of January, 1850, impaired the obligation of any contract with the stockholders in its charter.

*The General Banking Law of 1838, [*592 under which this bank was organized, provided in the 23d section, that "no shareholder of any such association shall be liable in his individual capacity for any contract, debt or engagement of such association, unless the articles of association by him signed shall have declared that the shareholder shall be liable."

The 15th section provided, that "any number of persons may associate to establish offices of discount, deposit and circulation, upon the terms and conditions, and subject to the liabilities prescribed in this Act."

One of the Articles of Association, as we have already seen, provided, that the shareholders should not be liable in their individual capacities for any contract, debt, &c.

The 32d section of the General Banking Act provided, that "the Legislature may at any time alter or repeal this Act."

The argument on the part of the plaintiff is, that this stipulation of the stockholders in the Articles of Association from exemption from all personal liability for the debts of the institution, constitutes a contract within the authority of the Act under which it was organized, that cannot be legally impaired by the provision in the Constitution of New York, or by the Act of 1849, which seeks to change the obligation, and impose upon them personal liabil. ity; that, in respect to this bank, the provisio