Hallett v. Collins. 10 H. 21st November, 1806, and was therefore not bound to convey to Kennedy; and there was therefore no consideration which could make the deed binding on him. But the deed on its face purports to be an indenture, of which Collins, from the nature of the transaction, would be holder of the counterpart, signed by Kennedy. The original, which is signed by the grantor, would be in possession of Kennedy, the grantee, who cannot object to the validity of his covenant, because a paper is not produced which, if in existence, is in his own possession. Much less could he be heard to make this allegation after the contract has been executed by his own deed sealed and delivered in pursuance of it. It has been objected, also, that the original contract with Collins was void as against the policy of the law. But it was certainly not against the policy of the laws of Spain, under which it was made; for it was a fulfilment of the conditions of the grant made to Collins. And it cannot well be said to be contrary to the policy of the laws of the United States, who have confirmed the land to Kennedy, in virtue of the very possession and improvements made in pursuance of the contract. Thus far, then, we have, in 1822, the legal title to the whole lot vested in W. E. Kennedy, in trust, as to the southern half, for the heirs of Collins. 4. What, then, was the effect of the deed made to Samuel Kitchen, dated, or antedated, some two months before the deed to Inerarity? The circumstances which tend to show that this deed was made after that to Inerarity, and for the purpose, if possible, of defeating it, are very strong and convincing. 1. Joshua Kennedy, who acted as the agent for Kitchen, [* 185] or * used Kitchen's name for his own purposes, was a witness to the deed to Inerarity, and made no objections, nor suggestions, that he had bought and paid for this lot a few days be-, fore, as agent of Kitchen, a circumstance not easily accounted for, if such had been the fact. 2. The deed to Kitchen was acknowledged after that to Inerarity, at the same time with another deed from W. E. Kennedy to Joshua Kennedy, containing property previously sold to Inerarity, and having the same witness, Diego Mc Boy. "And 3. The frequent declarations of Joshua Kennedy, that the object of the deed made to Kitchen, through his intervention, was to defeat Inerarity's claim to that property." And, lastly, the fact that Samuel Kitchen gave Joshua Kennedy an obligation to convey the lot to him on request; which was afterwards fulfilled by giving his deed to William Kitchen for a nominal consideration; and that William's name was used by Kennedy for the purpose of covering and complicating the transaction. Hallett v. Collins. 10 H. But it is a question of no importance in the case, whether the deed to Samuel Kitchen was delivered on the day it bears date, or that on which it was acknowledged. He was not the purchaser of a legal title without notice of a secret equity. The rule with regard to purchasers of a mere equity is, Prior in tempore potior in jure. The equitable title of Collins, of which the deed to Inerarity contained a new acknowledgment, had its origin at least as far back as 1806. So that, even if we could bring ourselves to believe that Joshua Kennedy, whether acting for Kitchen or himself, had purchased and paid his money without notice of the title of Collins's heirs, it would not enable him to defeat their claim. The legal title first became vested in W. E. Kennedy in 1822, and passed by his deed of 1824 to Joshua Kennedy, with full knowledge of the trust. His attempt to defeat it, by covering the land with the vagrant and probably fraudulent claim under Price, after he had obtained the legal title from the United States, was as unsuccessful as the first, and wholly inoperative, except to show the shifts and contrivances resorted to, in order "to defeat Inerarity's claim." 5. We come now to the consideration of the validity of the deeds of release obtained from George and Sidney E. Collins, in 1829 and 1830. At this time the property had risen in value, with a prospect of a much greater increase; and the frailty of the title was but too transparent to a man of the judgment and shrewdness of Joshua Kennedy, notwithstanding the means used to obscure it. The heirs had just come of age. They were ignorant of the nature or value of their title. Kennedy is not only * in possession of their land, [* 186 ] but of the legal title. He persuades them to release their title to William Kitchen for the sum of $1,000 each; a sum which, to young men just out of their apprenticeship, poor, and ignorant of their rights, would appear large and attractive. Kennedy is well acquainted with the nature and value of their claim; they are wholly ignorant of it. He informs them that their claim is worthless, but that Kitchen was willing to give them this sum for the sake of peace and quieting his title. Besides, he had so complicated and covered up the title, that it was impossible that they could comprehend it, or know the value of their claim, if the documents had been laid before them. Under such circumstances, should a chancellor hesitate in setting aside the releases, if it appeared that the title thus obtained was for a consideration much below the value of the property? It needs no citation of authorities to show that deeds, obtained under such circumstances, would be held void. 6. The transfer by Inerarity of the equitable trust title held by him, Hallett v. Collins. 10 H. can add nothing to the validity of Kennedy's title. Whether transferred by him voluntarily, or through the medium of a decree in chancery, can make no difference in this case. Nor is Inerarity liable to any imputations of collusion or improper conduct in the matter. He was bound to transfer his title to the heirs on payment of his debt. And when their releases to Kitchen were produced, by which he appeared to be substituted to their rights, Inerarity, who was ignorant of the means used to obtain them, might justly believe that he was bound to convey to him. He did so, after consulting counsel, and after a decree in equity. Such a decree would be made as a matter of course. But its effect would only be to substitute Kitchen or Kennedy to the rights of Inerarity. The title would be still subject to the trust for Collins's heirs, and unless their title was vested in Kennedy by these releases, he held the land still subject to their rights. But when the releases to the heirs are set aside, Kennedy is entitled to recover the money paid to Inerarity, as there is no allegation that the debt claimed by Forbes and Co. against Collins's estate was not justly due. But before leaving this part of the case, it will be proper to notice an objection urged with some plausibility in the argument. The record exhibits much contradictory testimony as to the value of this property at the time the releases were executed, and it has been contended that Kennedy paid the full value for it, being altogether over $4,000. After such a length of time, it may be expected that the estimates of witnesses from recollection will differ widely. But when we look at the public assessments, and the sales of [* 187] contiguous property about the same time, which are the best tests, it would seem that the boast of Joshua Kennedy himself, that "he had bought for $4,000, property worth $40,000," was not an exaggeration of the truth. But assuming the true value to have been one half that sum, and taking into consideration the facts and circumstances already stated, we think the circuit court was fully justified in setting aside these conveyances, and decreeing that the defendants should account. 7. The absence of the complainant from the State, and the late discovery of the fraud, fully account for the delay and apparent laches in prosecuting his claim, which have been objected to, on the argu ment. The decree of the court below is therefore affirmed, but with this addition: "that the master, in taking the account of rents, profits, sales, &c., shall allow to the defendants the sum paid to James Inerarity for his claim against the estate of Joseph Collins." 22 H. 246. Sears v. Eastburn. 10 H. SHERBURNE SEARS, Plaintiff in Error, v. JOSEPH R. EASTBURN. 10 H. 187. The process act of 1828, (4 Stats. at Large, 278,) adopted an action of trespass to try titles to land in Alabama, which existed by a law of that State when that act was passed. ERROR to the circuit court of the United States for the southern district of Alabama. The case is stated in the opinion of the court. Sewall, for the plaintiff. No counsel contrà. * TANEY, C. J., delivered the opinion of the court. [ *189 ] The point of this case is a narrow one, and concerns only the practice in the circuit court of the United States for the southern district of Alabama. It appears that in 1821 an act was passed by the legislature of that State to abolish fictitious proceedings in ejectment; and to substitute in their place the action of trespass, for the purpose of trying the title to lands and recovering the possession. In the case before us, an action of trespass was brought by the plaintiff in error against the defendant, for the purpose of recovering a certain parcel of land to which he claimed title. The writ was indorsed in the manner required by the statute of Alabama; and the declaration was in the usual form of an action of trespass. There does not appear to have been either plea or demurrer put in by the defendant, nor any issue of fact or law joined between the parties. But the defendant by his counsel moved the court to dismiss the suit, upon the ground that the law of the State was not in force in the circuit court of the United States; and the district judge then holding the circuit court, being of that opinion, dismissed the suit, and gave judgment in favor of the defendant for his costs. This decision is evidently erroneous. The act of May, 1828, 4 Stats. at Large, 278, in express terms, directs that the forms and modes of proceeding in the courts of the United States, in suits at common law in the States admitted into the Union since 1789, shall be the same with those of the highest court of original jurisdiction in the State. Alabama is one of the States admitted since 1789; and the act of congress, therefore, makes it obligatory upon the courts of the United States to conform in their mode of proceeding to the law of the State. The law of the State of itself, undoubtedly, was not obligatory upon the courts of the United States. But it is made so by the act of congress. The judgment of the circuit court must therefore be reversed, with costs. Woodruff v. Trapnall. 10 H. WILLIAM E. WOODRUFF, Plaintiff in Error, v. FREDERICK W. TRAPNALL. 10 H. 190. In November, 1836, the legislature of Arkansas chartered a banking corporation, of which the State was to be the sole stockholder, and the 28th section of its charter provided "that the bills and notes of said institution shall be received in all payments of debts due to the State of Arkansas;" held, that this constituted a contract with the holders of such bills, to receive the same in payment of state dues, the obligation of which was impaired, by a law passed in 1845, repealing that clause in the charter. THE case is stated in the opinion of the court. Lawrence and Johnson, for the plaintiff. Sebastian, contrà. [* 203 ] M'LEAN, J., delivered the opinion of the court. This case is before us on a writ of error to the supreme court of Arkansas. An action was brought by the State of Arkansas, in the Pulaski circuit court, against the plaintiff in error, and his sureties, Chester Ashley and others, upon his official bond as late treasurer of state, for the recovery of a certain sum of money alleged to have been received by him, as treasurer, between the 27th day of October, 1836, and the 26th day of December, 1838. And a judgment was recov ered against him and his securities, on the 13th of June, [*204] 1845, for $3,359.22 * and costs. An execution having been issued on the judgment, on the 24th of February, 1847, the plaintiff tendered to the defendant in error, who prosecuted the suit as attorney-general, the full amount of the judgment, interest, and costs, in the notes of the Bank of the State of Arkansas, which were refused. The above facts being stated in a petition to the supreme court of Arkansas on the 25th of February, 1847, an alternative mandamus was issued to Trapnall, the defendant in error, to receive the banknotes in satisfaction of the judgment, or show cause why he shall refuse to do so. On the return of the mandamus, the defendant admitted the judgment and tender of the notes; but alleged that he was not authorized to receive them in satisfaction of the judgment, because the twentyeighth section of the bank charter, under which alone the plaintiff could claim a right so to satisfy the judgment, was repealed by an act of the legislature, approved January 10, 1845. It was agreed by the parties, that the record of the judgment should be made a part of the proceeding; that the defendant was the proper |