763

of Ware. The complainants evidently supposed that the relief to which they were entitled was a cancellation, upon the ground of fraud, of Hardin's contract of purchase, as well as of the deeds to him and his wife, with an accounting that would embrace, on one side, the rents and profits derived from the lands; and, on the other, the value of the scrip or warrants that he had delivered in part payment of the purchase money. But if it were doubtful whether the evidence was sufficient to justify a decree setting aside the contract upon the ground of fraud or imposition practiced upon the vendor, and if the evidence clearly showed that the purchaser had not fully paid for the lands, according to the terms of his purchase, should the complainants have been driven to a new suit in order to enforce a lien for the unpaid purchase money? And this, too, after the parties had taken their proofs upon the issue, distinctly made by the pleadings, as to the amount of the purchase money really due from Hardin? Such practice would have done no good to either party, and must have resulted in delay and additional expense to both. A new suit to enforce a lien on the land would have brought before the court the same evidence that was taken in this cause as to the amount Hardin had paid. When leave was asked to amend the prayer for relief, no objection was made by the defendant; but, the amendment having been allowed, he excepted, but without any suggestion of surprise, or any intimation that he was able or desired to produce additional proof upon that issue. Apart from the allegations in reference to fraud in obtaining the title bond, the bill made a case of non-payment of the greater part of the purchase money. To amend the prayer of the bill so as to justify a decree consistent with that fact did not make a new case, nor materially change the substance of the one actually presented by the bill and the proofs. It served only to enable the court to adapt its measure of relief to a case distinctly alleged and satisfactorily proved. The complainants could thereby meet the objection, which otherwise might have been urged, that the nature of the specific relief originally asked precluded the court from giving, under the general prayer, the particular relief which the amendment and the proof authorized.

It is a well-settled rule that the complainant, if not certain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted; the relief, of each kind, being consistent with the case made by the bill. Terry v. Rosell, 32 Ark. 492; Colton v. Ross, 2 Paige, 396; Lloyd v. Brewster, 4 Paige, 540; Lingan v. Henderson, 1 Bland, 252; Murphy v. Clark, 1 Smedes & M. 236. Under the liberal rules of chancery practice which now obtain, there is ne sound reason why the original bill in this case might not have been framed with a prayer for the cancellation of the contract upon the ground of fraud, and an accounting between the parties, and, in the alternative, for a decree which, without disturbing the contract, would give a lien on the lands for unpaid purchase money. The matters in question arose out of one transaction, and were so directly connected with each other that they could well have been incorporated in one suit involving the determination of the rights of the parties with respect to the lands. The amendment had no other effect than to make the bill read just as it might have been originally prepared consistently with the established rules of equity practice. It suggested no change or modification of its allegations, and, in no just sense, made a new case. *The decision in Shields v. Barrow, 17 How. 130, is invoked, with some confidence, as authority against the action of the court in allowing the prayer of the bill to be amended. That was a suit to set aside an agreement of compromise on the ground of fraud and imposition, and to restore the complainant to his original rights under a contract for the sale of certain lands and other property. The bill was fatally defective as to parties. No decree could have been based upon it, for indispensable parties were not before the court, and could not be subjected to its jurisdiction. The amendment of the bill,

there tendered and allowed by the court of original jurisdiction, not only asked that the compromise, if held binding, be specifically enforced, but it brought into the case entirely new issues of fact and law, and made an additional defendant, in his individual capacity and as tutor of his minor children. The relief sought by that amendment was, therefore, not within the case set out in the original bill. Nor was the application there, as here, simply to amend the prayer of the bill, so as to ask, in the alternative, for specific relief within the case as originally presented. It was regarded by this court as an attempt, under the cover of amendment, to change the very substance of the case. That such was its view upon the point necessary to be decided is clear from the opinion, for the court said: "To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record unnecessarily incumbered with the original proceedings, increases expenses, and complicates the suit; it is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject." The circumstances of the present case are entirely different from those in Shields v. Barrow. The amendment here did not introduce new allegations, nor make additional parties, nor incumber the record, nor increase the expenses of the litigation, nor complicate the suit, nor make new issues of fact. It simply enabled the court, upon the case made by the original bill, to give the relief which that case justified. Neale v. Neales, 9 Wall. 8; Tremolo Patent Case, 23 Wall. 518; Burgess v. Graffam, 10 Fed. Rep.*219; Battle v. Mutual Ins. Co. 10 Blatchf. 417; Ogden v. Thornton, 30 N. J. Eq. 573; McConnell v. McConnell, 11 Vt. 291.

We are of opinion, for the reasons stated, that the amendment of the prayer of the bill was properly allowed, and that there was no error in adjudging that Ware's estate had a lien on the land for the balance of purchase money. The deed to W. D. Hardin, and the deed of the latter to his wife, having been properly canceled, the legal title remained in the heirs of the vendor. They are not bound to surrender that title except upon the performance of the conditions upon which their ancestor agreed to convey, viz., the payment of the purchase money. According to the local law, they occupied the position of mortgagees; for "the legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee." Holman v. Patterson's Heirs, 29 Ark. 363; Martin v. O'Bannon, 35 Ark. 68. The heirs of Ware held the title in trust for the purchaser, while Hardin was a trustee for the payment of the purchase money. Shall v. Biscoe, 18 Ark. 157; Moore v. Anders, 14 Ark. 629; Holman v. Patterson's Heirs, 29 Ark. 363; Bayley v. Greenleaf, 7 Wheat. 50; Boone v. Chiles, 10 Pet. 225; Lewis v. Hawkins, 23 Wall. 126; 1 Story, Eq. Jur. § 1217 et seq.; 2 Sugd. Vend. 375, c. 19, note d.

But it is contended that the debt for unpaid purchase money, as well as the lien claimed therefor, are equally barred by the statute of limitations of Arkansas. An action to recover the debt may be barred by limitation, yet the right to enforce the lien for the purchase money may still exist. Lewis v. Hawkins, 23 Wall. 127; Birnie v. Main, 29 Ark. 593; Coldcleugh v. Johnson, 34 Ark. 318. In the case last cited the supreme court of Arkansas said: "The debt itself would appear to be barred in 1872, and no action could be brought at law. But the bar of the debt does not necessarily preclude a mortgagee or vendor retaining the legal title from proceeding in rem in a court of equity to enforce his specific lien upon the land itself. * * * Unless the defend-, ant can show that the lien has been in some way discharged and extinguished, or lost upon some equitable principles, such as estoppel, he can only interpose the bar of adverse possession of the land for such time as would bar the action at law for its recovery." In the same case it was held that, as between mortgagor and mortgagee, the possession of the mortgagor is not inconsistent with the mortgagee's right so long as the latter does not treat the former as

a trespasser; that where the mortgagor remained the actual occupant with the consent of the mortgagee he was strictly tenant at will; that if the tenancy be determined by the death of the mortgagor, and his heirs or devisees enter and hold without any recognition of the mortgagor's title by payment of interest or other act, an adverse possession may be considered to take place. "The principle," said the court, "is a wholesome one for both parties, as it enables the mortgagee (or vendor by title bond) to rest securely on his legal title, and indulge the mortgagor or purchaser, while the latter can easily, upon payment, procure the legal title, or have satisfaction of the mortgage entered of record under the statute; and even if he should neglect this, a court of chancery would not entertain a stale demand for foreclosure after many years without clear proof rebutting the presumption of payment; or if the mortgagor should die and the heirs should enter without recognition of the mortgagee's rights, the statute of limitations would commence to run as in case of adverse possession."

When did adverse possession begin in the present case? Not when Hardin took possession of the land, for he went into possession in the life-time of the vendor, and with his consent. The claim of adverse possession cannot be based either upon the alleged proceedings in the probate court purporting to authorize and direct the administrator of Ware to execute a deed to Hardin, or upon the deed which was made to him by such administrator; for, according to the weight of evidence, no such action was ever taken by the court and, by its order, made a matter of record, and that deed, although filed for record, was never recorded during the period when Hardin held the office of clerk of that court, nor until 1877. So that there was nothing upon the public record of conveyances, as shown at the hearing, nor in any of the circumstances attending Hardin's possession prior to the conveyance to his wife, that showed such open, notorious adverse possession of the land as was requisite to change the relations orginally existing between the vendor and purchaser, or between the latter and the heirs of the former. Hardin's possession under the deed of the administrator was simply a continuation of the possession originally obtained with the consent of his vendor. If it be said that Mrs. Hardin's possession under the deed from her husband was, upon her part, an assertion of title adverse to any claim that Ware's estate had, it may be answered that such possession commenced less than seven years prior to the bringing of this suit, which is the period within which the statutes of Arkansas require action or suits to be brought for the recovery of real estate.

It is objected to the decree that the value of the county scrip or warrant, which the court found had not been delivered by Hardin in payment for the land, should have been ascertained upon the basis of value as alleged in the original bill, namely, 10 cents on the dollar, and this, although the answer placed their value at 75 cents. According to the preponderance of evidence they were worth about 70 cents on the dollar of their face value. The court was not obliged to accept the allegations of value in the pleadings, and should have been controlled on this point by the evidence. We do not perceive any error in the aggregate amount ascertained to be due, taking the two installments of purchase money at the market value of the scrip or warrants, in which they were payable at the time they were respectively due, and giving interest upon those amounts from the maturity of each installment.

Some time after the decree Hardin filed a petition for rehearing, submitting therewith copies of numerous papers (alleged to have been lost at and before the final hearing) purporting to relate to a suit instituted by the heirs of Ware in the Crittenden circuit court against L. B. Hardin for the purpose of having him removed as administrator, or preventing his interfering with the assets of the estate. The record of that suit, it was alleged in the petition for rehearing, disproved the principal grounds upon which the decree in this case was rested. Without assenting to this view, and without commenting upon

the failure of the petition to disclose the circumstances under which the papers alleged to have been lost were found, it is sufficient to say that the granting of a rehearing was a matter within the discretion of the court below, and not to be reviewed here.

Other questions are discussed in the briefs of counsel, but we have noticed all that we deem of importance. There is no error in the decree, and it is affirmed.

(114 U. S. 149)

STEPHENSON v. BROOKLYN CROSS-TOWN R. Co.1

(March 23, 1885.)

1. PATENT LAW-Mode of OPERATING CAR-DOORS-O'HAIRE'S INVENTION.

In the invention of John A. O'Haire, for which a patent for "an improvement in operating car-doors was issued to John A. O'Haire and W. A. Jones, dated September 16, 1873, the claim-"the rod, crank or lever, and guiding-frame, secured to the door, and combined with an operating lever for the driver"-was not new. 2. SAME SIGNALING DEVICES FOR STREET CARS.

The patent issued March 30, 1875, for "an improvement in signaling devices for street cars," was for an invention that was without novelty.

3. SAME-MIRROR IN THE HOOD OF STREET CARS.

The patent issued September 7, 1875, for an improvement in street cars, consisting in placing a mirror in the hood of an ordinary street car, to enable the driver to see what is occurring in and behind the car, was for a device that was not new.

Appeal from the Circuit Court of the United States for the Eastern District of New York.

*John Stephenson, the appellant, was the plaintiff in the circuit court. Her brought his bill to restrain the infringement by the Brooklyn Cross-Town Railroad Company, the appellee, of three letters patent. The first was a patent dated September 16, 1873, granted to John A. O'Haire and W. A. Jones, as assignees of John A. O'Hairs, the inventor, for "an improvement in operating car-doors." The second, dated March 30, 1875, was granted to the appellant "for an improvement in signaling devices for street cars." The third, dated September 7, 1875, was also granted to the appellant for an "improvement in street cars," consisting in placing a mirror in the hood of an ordinary street car to enable the driver to see what was occurring in and behind the car. The bill charged an infringement of each of these patents by the appellee in all of its cars. The answer of the appellee denied infringement of any of the patents sued on; averred that all had been anticipated by specified American and foreign patents, and by certain persons in this country, naming them; that none of the devices were patentable; and that the devices described in the second and third patents were in public use and on sale for more than two years prior to the application for letters patent therefor, respectively. Upon final hearing the circuit court dismissed the bill, and the plaintiff appealed.

Wm. Allen Butler, B. F. Thurston, and Philip J. O'Reilly, for appellant. Francis Rawle, for appellee.

*WOODS, J. We shall consider each of the patents in the order above stated.➡ The invention described in the O'Haire patent consists of a combination and arrangement of devices by which the rear door of a street car can be opened and closed by the driver from the front platform where he stands, in order to let passengers into or out of the car. The drawing by which the specification is illustrated shows the frame of an ordinary street car provided with a door

18. C. 14 Fed. Rep. 457.

which is supported upon and moves back and forth upon suitable pulleys and ways, which, it is said, may be arranged in any desired manner. Passing through the bar from which the hand-straps are suspended, and which is made hollow, is a rod or rock-shaft which has a lever or crank upon its front end within easy reach of the driver. Upon its rear end is a similar lever or crank carrying a roller, which works up and down in a rectangular guidingframe secured to the rear edge of the door, and by which the door is opened and closed. The driver, by a slight push upon the front lever, can open the door, or, by a pull towards him, can close it without moving off his seat. The claim is as follows: "The rod, i, crank or lever, 3, and guiding-frame, 6, secured to the door and combined with an operating lever for the driver, substantially as shown and described."

The infringement charged against the defendant was the use of cars containing an "improvement in operating car-doors," described in the patent of George M. Brill, dated December 1, 1874. The device covered by this patent was substantially the same as that described in the O'Haire patent, except that the rock-shaft ran along the bottom of the car instead of through the bar from which the hand-straps were suspended. There is no evidence to show that O'Haire's invention antedates the application for his patent, which was made on June 27, 1873. Considering the state of the art at that time, we are of opinion that the device covered by his patent does not embody anything new which the defendant infringes. The opening and closing of the rear door of a street car from the front platform is not new. The specification of the O'Haire patent says: "I am aware that it is not new to operate the door from the front platform of the car, as this has heretofore been accomplished by means of an endless cord which passes through the rods to which the holding-straps are secured, and I therefore disclaim such invention." At the date of O'Haire's application it was well known, as is shown by the evidence, that doors and window-shutters guided by slides, both in vehicles and apartments, were opened and closed by mechanism used by persons placed in such situations that they could neither reach nor open and close the doors or shutters directly. The device of O'Haire must, therefore, to be the subject of a valid patent, embody some new means for accomplishing this end. The elements of which his contrivance was made up were the rod or rock-shaft, reaching from the front to the rear of the car, the lever by which a rocking motion was given to the shaft, and the means used for communicating motion from the shaft to the door.

The testimony is conclusive to show that there is nothing new in the rockshaft or in the lever by which it is moved. Long before the date of O'Haire's application, the evidence is clear that rock-shafts operated by a lever or crank were used to open and close the doors of furnaces, and the window and door openings of sugar refineries, by persons standing at a distance from the windows and doors to be opened and closed. A rock-shaft moved by a lever at the end of a railway carriage for the purpose of opening and closing the slidingdoors of the carriage was described in the English letters patent set out in the record of John Johnson, dated March 3, 1857. The use of a rock-shaft for a similar purpose, namely, the opening and closing of sliding windowblinds, is also shown in the patent of David Kidder, dated June 8, 1869. Rock-shafts, for the same purpose, are shown in the patent of Darwin D. Douglass, dated June 11, 1861, and the patent of W. H. Brown, dated February 23, 1864. The shaft in the Brown patent was moved by a lever, and in the Kidder and Douglass patents by a knob attached to its end, which is the well-known equivalent of a lever. It appears, therefore, that the use of a rock-shaft actuated by a lever for communicating motion was an old device which had been in use long before the date of the O'Haire patent.

It remains to consider the mode adopted by O'Haire for communicating motion from his rock-shaft to the door of the car. We find it to be one of a