tled to have an account of the rents and profits, etc., (describing it) of the Concordia Church building whether received by said trustees or authorities under the name of the German Evangelical Concordia Church, or as the trustees of the German Lutheran Evangelical Concordia Church."

How this name Lutheran got sifted into this decree is unexplained. We have gone through the testimony very carefully to see if there was any explanation about it, and there is none, or that the trustees of the Evangelical church, were ever recognized as the trustees of the Lutheran Church. So that there is evidently a mistake; upon the cover of the transcript of the record which went up, the complainant is called the German Lutheran Evangelical Concordia Church, so that the Supreme Court was probably misled by the title page of the book.

Although we deny the motion, we take occasion to affirm strongly the right of this court, upon the coming back of a reversed decree from the Supreme Court, to restore a party to the possession of real estate whom we have dispossessed under our erroneous decree. And I do not know but in this case if the motion were accompanied with an application setting forth that the Lutheran Church was the legal successor to the Evangelical Church, and had succeeded to all their rights of property, etc., that we might put it back; but the motion is simply to put the Lutheran Church in possession without any explanation of its right to its possession. We therefore think it would be impossible for us to grant this writ without making a new decree, without a single particle of testimony before us to show that they are entitled to it. We think the motion on every consideration must be denied, but without prejudice. It strikes me that the proper course would be to give the Supreme Court itself, where this error commenced, an opportunity to correct it and then the proceedings would follow on regularly, and if these parties are the successors of the Evangelical Church to the rights of property, they would be entitled to be put into possession, and not otherwise.

Mr. Justice Cox said:

I only wish to observe in this case that I am perfectly satisfied that all the parties who were ejected under the process of this court are entitled to a writ of restitution. The only difficulty I have is that the papers do not show the moving party here to be identical with that party. I think that the applicant should file a petition setting forth the fact that pending this suit the parties named in the original suit as defendants were incorporated under this new title and the parties having this new title succeeded to their rights. Upon such a petition verified it would be our duty to issue a writ of restitution. I am not prepared to say anything about the proceedings of the Supreme Court. It may be right enough, but I think the other remedy is open to the parties.

ALEXANDER R. SHEPHERD, ANNA V. MOSS, AND ISAAC T.

FILBERT

vs.

JOSEPH F. BROWN, MARIA V. BROWN AND ALEXANDER SHARP. EQUITY. No. 5319.

Decided July 5, 1884.

{Decide Justice and Justices MAC ARTHUR and JAMES sitting.

1. A judgment creditor filed a creditor's bill for the purpose of subjecting the equitable interest of the debtor in certain real estate to the satisfaction of the judgment. A decree was made, and the interests ordered to be sold. After this the judgment creditor assigned the judgment, and shortly afterwards the assigne, instead of enforcing the sale, entered an order dismissing the suit.

Held, That by dismissing the suit, the property was discharged from the lien created by the decree, and that the lien of the judgment was also discharged from such other property of the defendant as had been conveyed away by him.

2. B, being in apparently independent circumstances, settled upon his wife certain property to be held as her separate estate; soon afterwards, he became largely indebted.

Held, That in the absence of explanation as to the cause of this indebtedness, the natural and inevitable inference must be that the indebtedness existed contemporaneously with, if not anterior to the settlement.

3. Where the wife pays her husband's judgment creditor, and has the judgment marked to her use, the court will, on proper application, direct it to be entered satisfied, when it appears that the money paid by the wife to the judgment creditor was the money of the husband.

THE CASE is stated in the opinion.

WM. F. MATTINGLY and A. C. BRADLEY for plaintiffs.

T. T. CRITTENDEN and FRANKLIN H. MACKEY for defendants.

Mr. Justice MAC ARTHUR delivered the opinion of the

court.

The case of Shepherd et al. vs. Brown et al. is a bill to restrain an execution at law.

Joseph F. Brown was the owner of two lots in square 101, and on the 18th day of May, 1870, he and his wife executed a deed of trust to one Whitney to secure the payment of an

indebtedness. Whitney died, and William B. Webb, by a process in equity, was appointed in his place to execute the trust, which he did by advertising the property, default having been made in payment of the debt, and Mr. George Mattingly became the purchaser. Mattingly conveyed to Fay, and there were two or three other conveyances before the property finally passed into the hands of Shepherd. Shepherd took the two lots and divided them into three, and conveyed one to Anna V. Moss and one to Isaac T. Filbert, his co-complainants, and retained the other himself. At the time the lots were unimproved, but they have since been improved by buildings.

In February, preceding the May on which the trust deed was executed, the Ocean National Bank recovered a judgment against Brown for $15,000; so that there appears to have been a trust and a judgment upon this property. A payment was made upon the judgment of $5,000. An assignment to the use of one Donnelly for the sum of $4,000 was also made, and, finally, on the 4th of March, 1872, Mrs. Brown, the wife of the defendant, obtained an assignment of the judgment, and subsequently entered a credit upon it for $7,355.

I ought to have stated that the Ocean National Bank issued an execution upon the judgment, which was returned nulla bona. The bank filed a creditor's bill for the purpose of subjecting the equitable interest of Brown in some real estate in the District to the satisfaction of the judgment. A decree was made in favor of the bank in that case, and these interests were ordered to be sold. Mrs. Brown, when she took the assignment of the judgment, dismissed Mr. Wilson, who had been the attorney in the bank case, and substituted her own attorney in his place. She then entered an order dismissing the suit. By dismissing the suit she, of course, discharged the lien which had been created by the decree in that case, and she also released thereby the lien of the judgment upon the lots which were embraced in this bill.

Now, it is contended, on the part of the plaintiffs, that

this discharge of the liens in favor of the judgment created by the decree in the equity suit, has operated to release the lien of the judgment upon their lots, and that she has forfeited her right to enforce the execution against complain

ants.

One other point was made, that when that sale took place, after paying the indebtedness and the expenses of the sale, there was a small surplus left, for which Mr. Mattingly, who was the purchaser, executed his notes to Mr. Brown. It appears that Mr. Brown transferred them to his wife, and Mr. Mattingly finally settled the amount of these notes with Mrs. Brown herself. There being some back tax that had been overlooked, an arrangement was made by which that was deducted from the purchase money, and the remainder was paid to Mrs. Brown. It is contended that she is now estopped from saying that that judgment was any longer a lien after it had been sold upon the trust deed, and she had realized the balance.

This point is not without a good deal of force, but perhaps it is not entirely necessary for us to decide that point in this case, because there is still another view upon which we think this bill may be sustained in addition to the first one which I have mentioned.

It was contended by the counsel for the complainants, that the money with which Mrs. Brown paid the judgment, was the money of the husband, and that instead of taking an assignment, she should have satisfied it. If this is true, we are unanimously of the opinion that it was a payment of the judgment, and not a purchase. This depends upon some circumstances that it may take me a few moments to state.

As far back as 1868, it appears that Mr. Brown was a man of considerable property. At that time he purchased the estate called "Clifton," a property within the District, for $40,000. He paid the consideration and directed the conveyance to be made to Mrs. Brown, which was done. At that time, as I have remarked, Mr. Brown appears to have been a man possessed of a good deal of property. Judgments to the amount of between three and four thousand