Opinion of the Court.

made and intended to secure, it shall and may be lawful for the vendee to make and file and have recorded in the clerk's office of the Superior Court of the county wherein the land lies a good and sufficient deed of conveyance to the defendant for said land; whereupon the same may be levied on and sold under said judgment as in other cases: Provided, That the said judgment shall take lien upon the land prior to any other judgment or encumbrance against the defendant."

The substance of this is, that upon taking judgment upon the note or bond given for the loan, the lender may reconvey the property to the debtor, and immediately levy upon and sell it by virtue of his judgment and execution. In such case it would seem that, if he buys the land at the sale, he would recover possession of it by an action of ejectment upon his sheriff's deed.

In this connection it was held by the Supreme Court of Georgia in Carswell v. Hartridge, 55 Georgia, 412, 414, that the proceeding under this statute was optional, and that a recovery in ejectment might be had upon the original deed made to secure the debt, so long as the title remained in the creditor, and the debt was unpaid. "That the next section of the code," said the court, "gives a remedy for collecting the money by proceeding to judgment, filing a deed, levying upon the land and selling it, does not negative the former remedy. The creditor may either assert his title or part with it to the debtor, at his option. He may possess himself of the land and hold it till he is satisfied, or he may enforce satisfaction in the manner pointed out by section 1970. In this respect, his position is like that of an ordinary vendor of land who retains the title as security, giving a bond to reconvey upon payment of the purchase money." That the creditor may also have the land sold by the sheriff, and bring ejectment upon the sheriff's deed, is evident from the case of Johnson v. Griffin Banking and Trust Company, 55 Georgia, 691.

In either case, however, the effect of the seizure upon the title of the creditor to the property can only be judicially determined in an action of ejectment, either upon the original deed or upon the sheriff's deed given in pursuance of the

VOL. CXLV-9

Opinion of the Court.

statute, or by a bill in equity to enjoin the creditor and sheriff from making sale under the levy. Johnson v. Griffin Banking and Trust Company, 55 Georgia, 691. The effect of the judgment in this case, then, is not to avoid the title of the plaintiff to this property, but to establish the existence of usury, which, in another action, may be pleaded as avoiding such title. It is true that the plaintiff set forth in its declaration that the defendant gave a deed of certain lots, describing them, to secure the payment of the notes; but it claimed nothing by virtue of this allegation in its prayer for relief, demanding only a money recovery. Upon the trial the deed. and bond were offered in evidence, but were ruled out, and the judgment was simply for the amount of the notes and interest less the alleged usury.

It is well settled in this court that when our jurisdiction depends upon the amount in controversy, it is determined by the amount involved in the particular case, and not by any contingent loss either one of the parties may sustain by the probative effect of the judgment, however certain it may be that such loss will occur. Thus in Grant v. McKee, 1 Pet. 248, it was held, that the court would not take jurisdiction of a case where the title to a piece of land of less value than the jurisdictional sum was directly involved, although the whole property claimed by the lessor of the plaintiff under a patent, and which was recovered in ejectment in the court below, exceeded that sum. In Farmers' Bank of Alexandria v. Hoof, 7 Pet. 168, a bill was filed for the purpose of foreclosing a deed of trust given to secure a sum of money less than $1000. It appeared that the property covered by the deed exceeded that sum in value, but the court held the real matter in controversy to be the debt claimed in the bill, "and, though the title of the lot may be inquired into incidentally, it does not constitute the object of the suit." A similar ruling was made in Ross v. Prentiss, 3 How. 771, where a bill was filed to enjoin the marshal from levying an execution of less than $2000 upon certain property, the value of which was more than $2000. In this case as in the other, the argument was made that the defendant might lose the whole benefit of

Opinion of the Court.

his property by the forced sale under the execution, but the court held that it did not depend upon the amount of any contingent loss, and dismissed the bill. In Troy v. Evans, 97 U. S. 1, action was brought to recover certain instalments upon bonds, the aggregate of which bonds exceeded $5000, but the judgment was for less. The case was dismissed, although it appeared that the judgment would be conclusive in another action upon future instalments upon the same bonds. A like ruling was made in Elgin v. Marshall, 106 U. S. 578, where a judgment was rendered for $1660.75, against a town, on interest coupons detached from bonds which it had issued under a statute claimed to be unconstitutional. The case was dismissed in an elaborate opinion by Mr. Justice Matthews, although it appeared that the judgment might be conclusive as an estoppel in any subsequent action upon other coupons, or upon the bonds themselves. So in New Jersey Zinc Co. v. Trotter, 108 U. S. 564 — an action of trespass wherein the plaintiff recovered judgment for less than $5000 the case was dismissed, although the court indicated that the jury were compelled to find the plaintiff had title to the land, and "that in this way the verdict and judgment may estop the parties in another suit, but that will be a collateral, not the direct, effect of the judgment." See also Opelika City v. Daniel, 109 U. S. 108. In Bruce v. Manchester & Keene Railroad, 117 U. S. 514, suit was brought to collect interest due on certain railroad bonds by the foreclosure of a mortgage made to trustees to secure a series of bonds amounting to $500,000. As the suit was brought only to recover the interest on the bonds, which was less than $5000, the appeal was dismissed.

Most of the authorities on the subject are collated and reviewed in Gibson v. Shufeldt, 122 U. S. 27, and a conclusion reached in consonance with the view expressed in the prior

cases.

The case of Stinson v. Dousman, 20 How. 461, is not in conflict with these authorities. The action in that case was for rent amounting to less than $500, but the case itself involved the question whether a certain contract for the sale of

Statement of the Case.

real property, valued at $8000, had been annulled, and the answer of the defendant was framed not only to present a legal defence against the claim for rent, but also to obtain a decree affirming the continued validity of the contract of sale. It was held that the effect of the judgment in that particular case was an adjustment of the legal and equitable claims of the parties to the subject of the suit, which was the title to the land under the contract.

Upon the whole, it appears to us that we have no jurisdiction of this case, and that the writ of error should be dismissed, and it is so ordered.

MR. JUSTICE LAMAR and MR. JUSTICE BREWER dissented.

FURRER v. FERRIS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

The findings of a master in chancery, concurred in by the court, are to be taken as presumptively correct, and will be permitted to stand unless some obvious error has intervened in the application of the law or some important mistake has been made in the evidence, neither of which has taken place in this case.

Crawford v. Neal, 144 U. S. 585, affirmed and applied.

THE Court stated the case as follows:

In 1887, appellee was in possession of the property of the Toledo, Columbus and Southern Railway Company, as receiver, having been duly appointed such receiver by the Circuit Court of the United States for the Northern District of Ohio, in a foreclosure suit brought by the American Loan and Trust Company. On October 15, William Furrer, a young man of about twenty-one years of age, driving a load of wood

Argument for Appellant.

along the public highway, crossed the railroad track, and while making the crossing was thrown from the wagon, struck by the wheels and instantly killed. On December 15, appellant, the administrator of William Furrer, filed his intervening petition in said Circuit Court, seeking to recover ten thousand dollars damages, on the ground that the death of his intestate occurred through the negligence of the receiver in failing to keep the crossing in good repair. The matter was referred to a master, who took testimony and reported it to the court, together with his conclusion that there was no negligence in respect to such crossing, and, therefore, no liability on the part of the receiver. This report was confirmed by the Circuit Court, and the intervening petition dismissed. From that decision petitioner appealed to this court.

Mr. Orville S. Brumback for appellant.

Appellant's case was heard below before a special master, and is one of those too numerous instances where a party is substantially denied a jury trial by reason of the personal injuries complained of being inflicted while a railroad is being operated by a receiver.

The system of watered stocks and excessive bonded indebtedness employed in railroad manipulation, has resulted in the Federal courts being called upon to frequently operate railroads through receivers, for whose carelessness the remedy to be had is only through the favorable attitude of a special

master.

That the Federal Constitution as well as those of the several States intend to guarantee to every citizen a fair and impartial trial by jury is unquestionable. And the fact that the equity jurisdiction of the Federal courts has substantially abridged that right in requiring cases like appellant's to be heard by a special master rather than a jury is none the less reprehensible because it is founded upon the implied authority of the judiciary.

The injustice that has resulted all over the country by reason of this practice undoubtedly led to the enactment of the late