Opinion of the Court.

Indeed, we are not sure but that the court might properly have given a peremptory instruction in favor of the defendant upon this branch of the case.

2. In reference to the cause of action set out in the second count of the complaint, it is manifest that the plaintiff bases his right to recover upon the agreement alleged to have been made between him and Henry Webber, at the time the latter executed the quit-claim deed of April 28, 1884, to the effect that plaintiff's interest would not be subject to the burden of the lease made by Abbey to Nevitt; of which agreement, it is further alleged, Julia Webber had knowledge when she purchased from her husband, and defendant had knowledge at the time he purchased from her.

Upon this part of the case the court said to the jury:

"Now, the position of the plaintiff is that he comes in under the designation of a grantee or assignee of Webber for onehalf of the amount reserved to Webber by this agreement

that is ths; this agreement reserves to Webber 8ths; and the position of the plaintiff is that he must be regarded as an assignee and grantee of Webber in virtue of his deed of the preceding April for half of that amount which was reserved to Webber. He has brought this suit to recover that. Now, as I said before, in the deed there is nothing about that, and the question is, what was the intention of the parties at the time this deed was made? The plaintiff testifies that it was his intention that he should have the interest accruing under this lease as it went along, and was not to be postponed to the lease. I understand Mr. Webber to deny that proposition. Some comments have occurred between counsel as to the meaning of Mr. Webber's testimony, whether he has denied it or not. Mr. Webber could, if he chose to, by the terms of the agreement, reserve this entire interest to himself that is, all that was accruing under the lease; if it was his intention to keep it to himself, and there was no agreement of the parties in respect to it, the deed constitutes no agreement. He could reserve it to himself, and if he did reserve it to himself, if nothing was said about it at that time, in the absence of any agreement between them that it should go to the plaintiff,

Opinion of the Court.

then it would go to Webber; and under these circumstances it remained in him up to the time that he made the sale to the defendant in this case. After the agreement of September 26th, and some time in October, Nevitt sold, as you remember, through the negotiations of Mr. Judkins, to Mr. Devereux or to the defendant directly—I don't remember much about that transaction and subsequently Mrs. Webber, in a conveyance which she made to the defendant, assumed to convey all right and interest accruing to her under the lease. Upon that point the question is whether there was any agreement between the parties that the plaintiff's right and interest under this deed should become effectual at once upon the execution of the deed, and that he should be entitled to whatever should come under the lease to Webber - that is, to his part of it,th, t ths, of the whole amount-and if Nevitt was taking the whole preceeds of the mine, and I believe he was- at least it seems that he did so or assumed the right to do so after the mine became fruitful, and that was only in August, I think, of the same year — there were no proceeds of the mine, nothing that could be divided amongst them - among the several parties— until that time, and nothing was in fact divided until after this agreement of the 26th of September was made. So that the question must be whether there was an agreement between the plaintiff and defendant, or between the plaintiff and Webber, that he should be entitled to these proceeds from the time of the conveyance to him; that is a question of fact for your consideration. If you find that there was such an agreement; that the parties understood and intended that Mr. Rucker should be entitled to whatever should arise under the lease according to the proportion and interest conveyed to him by this deed from and after the time of the deed until the end of the lease, then my understanding is that he is entitled to recover the sum specified in this stipulation between the parties. They have agreed upon the amount. In the absence of such an agreement, then, he is not entitled to recover."

There was no error in this charge. It contained all that need have been said. It fairly submitted to the jury the question as to the existence or non-existence of the agreement upon

Syllabus.

which the plaintiff relied. That the plaintiff did rely upon that agreement is perfectly clear, not only from the complaint, but from his second request for instructions, as follows:

"2. The court is asked to instruct the jury that if they believe from the evidence that the lease of a portion of the lode, though made nominally to Nevitt, was in fact owned by Mr. Henry Webber, and that the same Webber sold and conveyed a one-twelfth interest to the plaintiff after the making and delivery of the lease, and if they also believe from the evidence that at the time of the execution of the deed from Webber to plaintiff it was mutually agreed between Webber and plaintiff that this one-twelfth should be exempt from the operation of said lease, then plaintiff is entitled to the proceeds of the one-twelfth, and upon these facts they should find for the plaintiff to the amount fixed by the stipulation of the parties read to the jury, and interest at the rate of ten per cent per year from August 24th, 1885, the date the suit was brought."

The jury having found, under appropriate instructions as to the legal rights of the parties, that there was no such agreement, and the parties having stipulated that nothing was due to the plaintiff if the interest he acquired from Henry Webber was subject to the burden of the Nevitt lease, the judgment is Affirmed.

BLACKLOCK v. SMALL.

UNITED STATES FOR

APPEAL FROM THE CIRCUIT COURT OF THE

THE DISTRICT OF SOUTH CAROLINA.

No. 148. Argued April 10, 11, 1888. - Decided April 23, 1888.

Two plaintiffs, citizens of Georgia, brought a suit in equity, in the Circuit Court of the United States for the District of South Carolina, against S., a citizen of South Carolina, and H., a sister of the plaintiffs, also a citizen of South Carolina, to set aside the alleged payment by S. to R., another defendant, of a bond and mortgage given by him to B., the father of the plaintiffs and of H., and to have the satisfaction of the

Statement of the Case.

mortgage annulled, and the bond and mortgage delivered up by S., and the bond paid, and the mortgaged premises sold. Before the alleged payment to R., B. had assigned the bond to R., in trust for the three children. When the suit was brought, B was a citizen of South Carolina: Held, that, as B. could not have brought the suit, the Circuit Court was forbidden to take cognizance of it, by § 1 of the act of March 3, 1875, c. 137, 18 Stat. 470.

This suit was a suit founded on contract, in favor of an assignee, and was not a suit founded on the wrongful detention by S. of the bond and mortgage.

The defendant H., by answer, joined in the prayer of the bill, and asked to have the bond and mortgage declared valid in the hands of R., as trustee, for the benefit of H. and the plaintiffs, and for a decree that S. pay to H. and the plaintiffs the amount secured by the bond and mortgage: Held, that as H. and S. were, when the suit was brought, both of them citizens of South Carolina, the Circuit Court had no jurisdiction.

As that court had dismissed the bill on the merits, with costs, and the plaintiffs and H. had appealed to this court, the decree was reversed, with costs in this court against the appellants, and the case was remanded, with a direction to dismiss the bill for want of jurisdiction, without costs of that court.

THIS was a bill in equity, filed on the 8th of October, 1879, in the Circuit Court of the United States for the District of South Carolina, by Emma Jane Blacklock and Mary Blacklock, citizens of Georgia, against Jacob Small, a citizen of South Carolina, Alexander Robertson, a citizen of North Carolina, and Helen Robertson Blacklock, a citizen of South Carolina.

The substance of the allegations of the bill was that, on the 20th of March, 1860, John F. Blacklock, the father of the plaintiffs, owning a house and lot in the city of Charleston, in the State of South Carolina, sold and conveyed it to the defendant Small, who, on the same day, gave back to Blacklock a bond and mortgage, the mortgage covering the house and lot, and being given to secure the payment on the bond of the sum of $10,600, by three equal and successive annual instalments, the first one payable on the 20th of March, 1861, with interest from the date of the bond and mortgage, payable annually; that the purchase money of the house and lot was $16,000, of which $5400 was paid in cash at the time; that Blacklock, the mortgagee, after receiving from Small, on the

VOL. CXXVII-7

Statement of the Case.

19th of March, 1861, $742 for one year's interest, at 7 per cent, on the bond, indorsed on it the following assignment: "For value received, I hereby assign, transfer, and set over all my right, title, and interest in this bond to Alexander Robertson, in trust for children of J. F. Blacklock. J. F. Blacklock;" that the assignee was the defendant Robertson, and the "children of J. F. Blacklock" were the plaintiffs and the defendant Helen Robertson Blacklock; that Small pretended to pay the bond by making payments to Robertson as follows: On the 19th of October, 1861, $3600 on account of principal and $147 for interest; on the 4th of April, 1862, $2000 on account of principal and $490 for interest; and, on the 10th of April, 1862, the balance of the principal and interest; making such payments in the treasury notes of the Confederate States; that upon the receipt thereof Robertson satisfied the mortgage and delivered up the bond to Small; that, at the time of the creation of the trust in the hands of Robertson, the children of Blacklock were infants; that in May, 1861, Blacklock went with the children to England, and remained there until the close of the war; that Robertson, in receiving such payments in the treasury notes of the Confederate States, violated his duty and was guilty of a breach of trust; that Small, in attempting to pay the debt in an illegal currency, with full notice of the trust, had not paid the debt; that the satisfaction of the mortgage was void, and its lien was still subsisting; and that Small was still liable for the amount due on the bond, with interest.

The prayer of the bill was, that the payment of the bond in Confederate treasury notes may be disallowed; that the satisfaction of the mortgage may be annulled and the mortgage be reëstablished and declared a subsisting lien on the land; that Small may be ordered to deliver up the bond and mortgage to the plaintiffs; and that the plaintiffs may have a decree for the payment to them by Small of the amount due and for a sale of the mortgaged premises.

Small appeared in the suit and interposed a plea that the court had no jurisdiction of the cause, because the plaintiffs as well as himself were citizens of South Carolina when the bill