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(114 U. S. 127)

Mower 0. FLETCHER. (Two Cases.)

(March 30, 1885.) JUDGMENT-FINAL FOR PURPOSES OF WRIT OF ERROR.

The judgment is final for the purposes of a writ of error to the supreme court which terminates the litigation between the parties on the merits of the case, so that the lower court may execute its old judgment upon affirmance in the supreme court. In Error to the Supreme Court of the State of California. On motions to dismiss.

M. D. Brainard and J. K. Redington, for motions. Wm. J. Johnston, in opposition.

WAITE, C. J. These motions are made on the ground that the judgments *for the review of which the writs of error were sued out are not final judgments. The judgment in each case is that the judgment of the state district court “be, and the same is hereby, reversed, with costs, with directions to the superior court of Los Angeles county to enter judgment upon the tindings for the plaintiff as prayed for in his complaint." That judgment is final for the purposes of a writ of error to this court, which terminates the litigation between the parties on the merits of the case, so that, if there should be an atfirmance here, the court below would have nothing to do but to execute the judgment it had already rendered. Bostwick v. Brinkerhoff, 106 U. S. 3; S. C. 1 SUP. Ct. REP. 15, and the numerous cases there cited. The judgments in these cases are of that character. The litigation is en ied, and the rights of the parties on the merits have been fully determined. Nothing remains to be done but to require the inferior court to perform the ministerial act of entering the judgments in that court which have been ordered. This is but carrying the judgment of the supreme court which has been rendered into execution. Nothing is left to the judicial discretion of the court below. The cases relied on in support of the motions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion, in each of the cases, is overruled.

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(114 U. S. 158)

CHAPMAN 0. BREWER, Assignee, etc.

(March 30, 1885.) 1. BANKRUPTCY-ATTACHMENT FROM State Court-SUBSEQUENT ASSIGNMENT.

Where, under the bankruptcy act of March 2, 1867, a proceeding in involuntary bankruptcy was comnienced in the district court of the United States for the Western district of Michigan, before an attachment on land of the debtor, issued by a state court of Michigan, was levied on the land, the assignment in bankruptcy, though made after the attachment, related back and vested title to the land in the assignee as of the commencement of the proceeding; and where the attachment was levied within four months before the commencement of the proceeding, it was dissolved by the making of the assignment. The proceeding in this case was held

to have been commenced before the attachment was levied. 2. SAME-EFFECT OF ADJUDICATION IN DIStrict Court.

* The district court which made the adjudication having had jurisdiction of the subject matter, and the bankrupt having voluntarily appeared, and the adjudication having been correct in form, it is conclusive of the fact decreed, and cannot be attacked collaterally in a suit brought by the assignee against a person claiming an

adverse interest in property of the bankrupt. 3. SAME-ACTION BY ASSIGNEE TO REMOVE CLOUD CN TITLE.

The assignment in bankruptcy was made after a levy on the land under an execution on a judgment obtained in a suit in a state court of Michigan, brought after the proceeding in bankruptcy was commenced. Ileld, that the assignee, being in nossession of the land, could maintain a suit in equity, in the cir court of the

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United States for the Western district of Michigan, to remove the cloud on his title, and that that court could, under the exception in section 720 of the Revised Statutes, restrain by injunction a sale under the levy and a further levy. Appeal from the Circuit Court of the United States for the Western District of Michigan.

H. F. Severens, for appellant. John W. Stone, for appellee.

BLATCHFORD, J. On the tenth of October, 1873, John Whittlesey, a creditor of Benjamin C. Hoyt and Enoch C. Hoyt, copartners under the name of B. C. Hoyt & Son, filed a petition in bankruptcy in the district court of the United States for the Western district of Michigan, praying that the said two persons, “partners as aforesaid,” might be declared bankrupts. The petition contained the prescribed allegations, and set forth, as the demand of the petitioner, a promissory note made by the partnership, in its firm name, to his order. It alleged, as one act of bankruptcy, that the firm had “fraudulently stopped payment” of its commercial paper within a period of fourteen days, omitting to add “and not resumed payment within said period." It alleged, as a second act of bankruptcy, that the firm had "suspended and not resumed payment” of its cominercial paper “within a period of fourteen days." Before anything was done on this petition except to file it, and on the twelfth of January, 1874, Daniel Chapman procured to be issued by the circuit court of the county of Berrien, in the state of Michigan, an attachment against the lands and personal property of the said persons, as such copartners, for the sum of $4,895.44, in a suit brought by him, in that court, against them, to recover

money demand, which attachment the sheriff, on that day, levied on certain real estate in that county. Enoch C. Hoyt died on the twenty-fifth of February, 1874. On the fifth of March, 1874, a petition, indorsed"amended peétition," was filed by Whittlesey in the bankruptcy court, containing the same averments as the first petition, with the addition of the words so omitted in the first petition. In the body of the petition there was no mention of its being an amended petition, nor did it allude to the first petition, or to the death of Enoch C. Hoyt, and its prayer was the same as that of the first petition. It was verified March 3, 1874. On the fourteenth of April, 1874, an order was made in the suit in the state court, entering the default of Benjamin C. Hoyt, for want of an appearance, on proof of personal service on him of the attachment and of the filing of the declaration; and on the sixteenth of April, 1874, an order was made on affidavit, suggesting the death of Enoch C. Hoyt, since the issuing of the attachment, and ordering that the action proceed against the surviving defendant, Benjamin C. Hoyt. On the second of May, 1874, an order was made by the bankruptcy court, stated in it to be made on the appearance and consent of “solicitors for the alleged bankrupts,” reciting that it had been shown that Enoch C. Hoyt had “departed this life since the commencement of the proceeding in said matter," and ordering that all proceedings should stand against Benjamin C. Hoyt, survivor of himself and Enoch C. Hoyt, and that they might be prosecuted against him, with like effect as if Enoch C. Hoyt had not died, and that the individual property of Enoch C. Hoyt be surrendered by the marshal to his proper representatives. On the same day Benjamin C. Hoyt filed a denial of bankruptcy, signed by his attorneys, as follows: “And now the said Benjamin C. Hoyt appears and denies that he has committed the act of bankruptcy set forth in said petition, and avers that he should not be declared bankrupt for any cause in said petition alleged, and he demands that the same be inquired of by a jury.” On the eighth of May, 1874, in the suit in the state court, a judgment was rendered in favor of the plaintiff, against Benjamin C. Hoyt, for $4,930.15, and costs; and on the same day an execution was issued thereon, under which, on that day, the sheriff levied on the same real estate which he had levied on under the attachment. On the first of June, 1874, an adjudication was made by the bankruptcy court in these words:

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" ADJUDICATION OF BANKRUPTCY ON CREDITORS' PETITION. * Western District of Michigan, 88.-In the District Court of the United States

for the Western District of Michigan. In Bankruptcy. "In the matter of BENJAMIN C. Hoyt, against whom a petition in bankruptcy

was filed on the nineteenth day of October, A. D. 1873. At Grand Rapids, in said district, on the first day of June, A. D. 1874. Before Hon. SOLOMON L. WITHEY, District Judge. “This matter came on to be heard at Grand Rapids, in said court, the respondent having withdrawn his denial and demand for a jury, and having, by his attorneys, Hughes, O'Brien & Smiley, consented thereto. And thereupon, and upon consideration of the proofs in said matter, it was found that the facts set forth in said petition were true, and it is therefore adjudged that Benjamin C. Hoyt became bankrupt, within the true intent and meaning of the act entitled An act to establishi a uniform system of bankruptcy throughout the United States,' approved March 2, 1867, before the filing of the said, petition, and he is therefore declared and adjudged a bankrupt accordingly.. And it is further ordered that the said bankrupt shall, within five days after this order, make and deliver, or transmit by mail, postpaid, to the marshal, as messenger, a schedule of his creditors and inventory of his estate, in the form and verified in the manner required of the petitioning debtor by the said act.

“Witness the honorable SOLOMON L. WITHEY, Judge of the said District Court, and the seal thereof, at Grand Rapids, in said district, on the first day of June, A. D. 1874.

ISAAO H. PARRISH, [Seal.)

“Clerk of District Court for said District." In the certificate made by the clerk of the district court of the United States for the Western district of Michigan, certifying the copies of the bankruptcy, papers, he certifies “that the foregoing is a true copy of the petition for adjudication filed October 10, 1873, copy of amended petition, order continuing proceedings, denial of bankruptcy by B. C. Hoyt, and adjudication of bankruptcy, on file in the proceedings of said court in said entitled matter." This is mentioned because, in the adjudication, the petition is referred to as Aled October 19, 1873.

On the sixteenth of December, 1873, an alias execution was issued in the suit in the state court, which the sheriff, on that day, levied on real estate in Berrien county other than that before levied on by him. On the first of October, 1874, the register in bankruptcy executed to Joseph W. Brewer an assignment in these words: In the District Court of the United States for the Western District of

Michigan. In Bankruptcy. “In the matter of BENJAMIN C. Hoyt, Bankrupt. * Western District of Michigan, ss.: Know all men by these presents, that Joseph W. Brewer, of the village of St. Joseph, in the county of Berrien and state of Michigan, in said district, has been duly appointed assignee in said matter: Now, therefore, I, J. Davidson Burns, register in bankruptcy in said district, by virtue of the authority vested in me by the fourteenth section of an act of congress entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved March 2, A. D. 1867, do hereby convey and assign to the said Joseph W. Brewer, assignee as aforesaid, all the estate, real and personal, of the said Benjamin C. Hoyt, bankrupt aforesaid, including all the property, of whatever kind, of which he was possessed, or in which he was interested or entitled to have on the tenth day of October, A. D. 1873, with all his deeds, books, and papers relating thereto,

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assignment, and the title of the assignee vested as of March 5, 1874, which was before any execution levy. In this view it would not be necessary to notice any of the objections made as to the first petition, or as to the second petition regarded as an amended petition, were it not that the bill is founded on the first petition. The date of October 19th in the adjudication must be regarded as a clerical or typographical error. The proper date is stated in the bill and admitted in the answer, and is stated in the clerk's certificate and in the bankruptcy assignment, and in a stipulation signed by the solicitors. Enoch C. Hoyt died February 25, 1874, before the second petition was filed, and the order made by the bankruptcy court, May 2, 1874, states that he had died “since the commencement of the proceeding in said matter;" and it was that fact, in connection, probably, with the fact that no order to show cause had been served on Enoch C. Hoyt, which made it necessary for that order to direct the marshal to surrender to the representatives of Enoch C.

Hoyt all his individual property. 8

It is also objected by the defendant that the petition was filed against the firm, and that the record does not show that the petitioner filed any proof of his claim, or any proof of bankruptcy. * By section 36 of the act of 1867, (section 5121 of the Revised Statutes,) where two persons, partners in trade, should be adjudged bankrupt, not only was the property of the firm to be taken and administered, but also the separate estate of each partner. When Enoch C. Hoyt died, the partnership estate vested in the survivor, and the proceedings were, by consent of attorneys then appearing for the survivor, ordered to stand against him as survivor, and to proceed against him as survivor. He appeared by attorney, and consented to an adjudication. By section 41 of the act of 1867, (section 5026 of the Revised Statutes,) the appearance and consent of the debtor were made a waiver of other notice. The adjudication states that, on consideration of the proofs, it was found that the facts set forth in the petition were true. It was not necessary to show in this case what the proofs were. If the district court had jurisdiction of the subject matter, and the bankrupt voluntarily appeared, and the adjudication was correct in form, it is conclusive of the fact decreed, and can be impeached only by a direct proceeding in a competent court, and can no more be attacked collaterally in a suit like the present than any other judgment. Michaels v. Post, 21 Wall. 398. The adjudication and the assignment embraced the individual property of Benjamin C. Hoyt; and it is alleged in the bill, and admitted in the answer, that the property levied on by the defendants was his individual property.

These views cover all the objections made to the bankruptcy proceedings, and it must be held that the adjudication was regular and valid, and refers to, and was made on, the first petition, as amended by the second, and on a proceeding commenced when the first petition was filed.

It is objected that the bill makes no mention of the attachment. But the answer sets up the attachment and the levy thereunder. The question as to whether a priority of right was acquired thereby was raised by the pleadings, and the decree makes no reference to the attachment, but annuls the execution levies. By section 2 of the act of 1867, the circuit court of the district has jurisdiction of all suits in equity brought by an assignee in bankruptcy against any person claiming an adverse interest touching any property of the bankrupt transferable to or vested in the assignee. This provision is re-enacted in section 4979 of the Revised Statutes. By section 720 of the Revised Statutes it is provided that “the writ of injunction shall not be granted by any court of the United States, to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” It is contended for the appellant (1) that a suit in equity will not lie for the relief granted; (2) that, at all events, there was no power to award the injunction.

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That the defendant claimed an adverse interest touching the property is clear. The question is whether the plaintiff can have relief in equity. IIe was in possession of the land, and, as he says, of the only building there was on it. By statutory provisions in Michigan, commencing with section 29 of the act of April 23, 1833, (Code 1833, p. 358,) followed by section 1 of the act of March 28, 1840, (No. 76, p. 127,) and the Revised Statutes of 1846, (title 21, c. 90, $ 36, p. 360,) and now in force as section 6626 of Howell's Statutes, “any person having the actual possession of, and legal or equitable title to, lands, may institute a suit in chancery against any other person setting up a claim thereto in opposition to the title claimed by the complainant, and, if the complainant shall establish his title to such lands, the defendant shall be decreed to release to the complainant all claim thereto.” If there should be a sale on the executions, there would be a sheriff's deed; and, by another statute of the state, such deed is made prima facie evidence of the regularity of the sale. Act February 19, 1867, No. 20, § 2, now in force as section 5678 of Howell's Statutes. It is held by the supreme court of Michigan that the statute first cited covers a claim to a lien on land, and that a lien which may result in a sale and a deed constitutes such a cloud that equity will afford relief. Scofield v. City of Lansing, 17 Mich. 437, 147, 448. Especially will this be done, if the lien is not void on its face, as the lien here is not, but is a cloud on the plaintiff's title. Therefore, the plaintiff could obtain, under the Mich. igan statute, and in a court of Michigan, the relief he has had. In such as case, a circuit court of the United States, having otherwise jurisdiction in the case, will, as a general rule, adıninister the same relief in equity which the state courts can grant. Clark v. Smith, 13 Pet. 195, 203; Case of Bioderick's Will, 21 Wall. 503, 519, 520; Van Norden v. Morton, 99 U. S. 378, 380; Cummings v. National Bank, 101 U. S. 153, 157; Holland v. Challen, 110 U. S. 15; S. C. 3 SUP. Ct. REP. 495; Reynolds v. Crawfordsville Bank, 112 U. S. 405; S. C. ante, 213. It has general power given to it, irrespective of citizenship, to grant equitable relief, in a suit in equity by an assignee in bankruptcy against any person who claims an adverse iuterest touching the assigned property.

We are not disposed, however, to rest the case upon jurisdiction arising from the Michigan statute. We hold that, under the equity jurisdiction conferred by tlie bankruptcy act, the circuit court had authority to remove this cloud on the plaintiff's title. It was the duty of the assignee to remove it, and to obtain a title which would enable him to sell the land for the benefit of the estate. The claim of the defendants, under the levies, is one which ought not to be enforced. It has no validity as against the rights of the plaintiff; it throw's a cloud on his title; he is in possession, and cannot sue at law; and the papers supporting the defendant's claim are not void on their face. Story, Eq. Jur. S$ 700, 705; 3 Pom. Eq. Jur. SS 1398, 1999, and cases cited; Pettit v. Shepherd, 5 Paige, 493; Carroll v. Safford, 3 Ilow. 463; Ward v. Dewey, 16 N. Y. 519; Mustian v. Jones, 30 Ga. 951; Martin v. Graves, 5 Allen, 601; Stout v. Cook, 37 III. 283; Clouston v. Shearer, 99 Mass. 209; Sullivan v. Finnegan, 101 Miss. 447; Anderson v. Talbot, 1 Heisk. 407; Marsh v. City of Brooklyn, 59 N. Y. 280; O'Hare v. Downiny, 130 Mass. 16, 19. In Pettit v. Shepherd it was held that a court of chancery might interpose to prevent the giving of a conveyance, under pretense of right, which would operate as a cloud upon the title to real estate. In O'Hare v. Downing it is said that “a court of chancery will restrain by injunction a threatened levy of execution upon real estate which is not legally subject to such a levy, and thus prevent a cloud upon the title, without compelling the owner of the land to wait until the levy has been completed, and then admit himself to be disseized, ints order to maintain a writ of entry.” Much more will it prevent a sale after a: levy.

B'it it is contended that the circuit court had no authority to award or is.

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