Counsel for plaintiffs in error would lik- HUGULEY en this deed to a power of attorney,—a mere authority to convey, which loses its vitality at the death of the grantor of the power. It seems to us more like a deed fully exe (184 U. S. 290) MANUFACTURING COM PANY et al., Appts., GALETON COTTON MILLS et al. decree. No right of appeal from a decree of the cir cuit court of appeals, which is made final by the act of Congress of March 3, 1891, chap. 517, § 0 (26 Stat. at L. 826), is given by the provision of that section that such case may be brought to the United States Supreme Court "by certiorari or otherwise," as, if some other order or writ may be resorted to, it must be ejusdem generis with certiorari. cuted and placed in escrow, to be finally Appeal from circuit court of appeals-final delivered on the performance of a condition. While ordinarily in case of an escrow title passes at the date of the second delivery, 1. yet often, for the prevention of injustice, the deed will relate back to the first delivery so as to pass title at that time. "If the grantor being a feme sole should marry, or whether a feme sole or not should die or be attainted after the first and before the second delivery, and so become incapable of making a deed at the time of second delivery, the deed will be considered as taking effect from the first delivery, in order to accomplish the intent of the grantor, which would otherwise be defeated by the intervening incapacity." Prutsman v. Baker, 30 Wis. 644, 649, 11 Am. Rep. 592, 596; Vorheis v. Kitch, 8 Phila. 554; Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369; Black v. Hoyt, 33 Ohio St. 203. 2. A writ of certiorari to perfect the record on an appeal from the circuit court of appeals by supplying alleged omissions does not operate to bring the case before the United States Supreme Court, nor in itself to add any support to the appeal, which must stand or fall according as the act of Congress of March 3, 1891, chap. 517, § 6 (26 Stat. at L. 826), did or did not allow such appeal to be taken. [No. 94.] The plaintiffs have no equities superior to those of the purchaser. They are the Argued January 15, 1992. heirs of the Indian grantor, and as such may rightfully claim to inherit and be se ary 24, 1902. Decided Febru See same case below, 36 C. C. A. 236, 94 Fed. 269. cured in the possession of all that property APPEAL from the United States Circuit to which he had at his death the full equita- Court of Appeals for the Fifth Circuit ble title; but when, as is shown by the ap- to review a decree of the Circuit Court for proval of the Secretary, he had received the Northern District of Georgia directing full payment of a stipulated price, and that a conveyance of property sold under fore price was ample, and he had been subjected closure. Dismissed. to no imposition or wrong in making the conveyance, then their claims as heirs cannot be compared in equity with those of the one who had thus bought and paid full valStatement by Mr. Chief Justice Fuller: ue. They certainly do not stand in the at- circuit court for the northern district of This was a bill filed in the United States titude of bona fide purchasers. "A person Georgia, January 21, 1891, by J. J. Robinwho is a mere volunteer, having acquired son as trustee, who averred that he was "a title by gift, inheritance, or some kindred citizen of and resided in the state of Alamode, cannot come within the scope of the bama," "against the Alabama & Georgia term bona fide purchaser. To enable the Manufacturing Company, a corporation cregrantee to claim protection as a bona fide ated under and by virtue of the laws of the purchaser he must have parted with some-state of Georgia, and a resident and citithing possessing an actual value, capable of zen of said northern district of Georgia; and being estimated in money, or he must on against the Huguley Manufacturing Comthe faith of the purchase have changed, to pany, a corporation created under the laws his detriment, some legal position that he of said state of Georgia, and a resident and before had occupied." Devlin, Deeds, citizen of said state of Georgia and of the 813. northern district of said state; and against W. T. Huguley, whom your orator avers to be a citizen of said state of Georgia and residing within the said northern district of Georgia. As, therefore, it has been settled by Pickering v. Lomax, 145 U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. 860, that approval by the Secretary may be retroactive and take effect by way of relation as of the date of the said Alabama & Georgia Manufactur The bill averred that on January 2, 1884, the deed, and as it appears from the fact of the approval by the Secretary that the ing Company executed and delivered to said Indian grantor received full payment for orator, as trustees, a certain deed of trust, W. T. Huguley, W. C. Yancey, and your his land and was in no manner imposed up conveying to said persons named, and to on in the conveyance, and as these plaintiffs orator, all the property of the said Alabama have no equitable rights superior to those & Georgia Manufacturing Company upon of the grantee in that deed, it follows that the terms and upon the trusts therein stated the title conveyed by it must be upheld. | for the purpose of securing certain negoti. The judgment of the Circuit Court is affirmed. able bonds of said company in the principal sum of $65,000, and interest thereon, which deed of trust was accepted by said trustees and duly recorded." A copy of the trust deed was attached and conveyed certain real estate in the state of Georgia and certain real estate in the state of Alabama as therein described. condition, however, that it pay into court the $10,000 which had been paid in by the purchasers. The Huguley Manufacturing Company did not comply with this condition, and a second decree of foreclosure was entered adjudging that, out of a total of one hundred and thirty bonds, ninety were due when the bill was filed, and forty were not then due because of waiver of default, though now due; that the property was indivisible and could not be sold to satisfy part of the bonds only; and that the protributed on all the bonds. Thereupon an appeal was taken to the circuit court of appeals, and the decree of the circuit court was affirmed. 19 C. C. A. 152, 30 U. S. App. 683, 72 Fed. 708. It was further averred that the bonds were duly issued by the Alabama & Georgia Manufacturing Company and sold or other wise disposed of; that the company was insolvent and had ceased to do business; that under and by virtue of a decree in chancery of the superior court of Troup county, Geor-ceeds of sale should be proportionately disgia, all the property of the manufacturing company covered by the deed of trust had been sold and purchased by certain persons who afterwards conveyed the same to the Huguley Manufacturing Company, and that the last-named corporation was now in the possession of the same; that the sale was made subject in all respects to the rights and lien of the trust deed for the holders of the first-mortgage bonds; that W. T. Huguley, defendant herein, and named as one of the trustees for said bondholders, was interested in the purchase of said property, and in the property and assets of the Huguley Manufacturing Company, and adversely to complainant as trustee for said bondholders, and that the other trustee, W. C. Yancey, had departed this life since the execution and delivery of the deed of trust. The bill then set up default on the part of the Alabama & Georgia Manufacturing Company in the payment of interest; the election of a majority of the bondholders to treat the whole of the principal sum named in the bonds as due; request of complainant to begin proceedings to secure the property pledged for the payment of the indebtedness, and which he deemed to "the best interest of the bondholders;" and prayed for an accounting, foreclosure, and sale of the property. A second foreclosure sale took place, and the property was again purchased for the bondholders, and this sale was confirmed June 25, 1896. Defendants filed a petition for an accounting of the rents and profits from the time of the first sale, and an amendment thereto, and a reference was made to a special master, who on November 2, 1897, filed his report in which he found the Galeton Cotton Mills liable for rents and profits in the sum of $39,715.31. Exceptions were filed to the master's report by both parties. February 23, 1898, the exceptions of appellants were overruled and the exceptions of appellees sustained to the extent of reducing the master's finding to $35,857.54, and a decree to that effect was entered February 28, 1898. Thereafter the circuit court entered a decree that the rents and profits should be used in reduction of the mortgage debt, and later a decree fixing the amount of the mortgage debt and costs and directing the manner of applying thereto the rents and profits and the amount of cash already received and reserving all questions of costs and expenses not therein disposed of. 89 Fed. 218. At the last foreclosure sale a balance was left due on the trust deed of $33,414.21. September 22, 1898, the purchaser at the second sale petitioned for a final conveyance, and on October 15, 1898, a decree was entered directing the completion of the sale by a cash payment and conveyance. A motion was made to set aside this decree, which was overruled, whereupon an appeal was taken to the circuit court of appeals. The appeal was heard, and the decree of the circuit court was on May 16, 1899, affirmed. 36 C. C. A. 236, 94 Fed. 269. Application was made to this court for a certiorari, which was denied October 30, 1899. 175 U. S. 726, 44 I. ed. 339, 20 Sup. Ct. Rep. 1022. May 12, 1900, an appeal to this court was allowed by Pardee, J., in order to preserve any pos sible rights of the applicants, although he expressly stated that he seriously doubted the right of appeal. Appellees moved to dismiss the appeal, the consideration of which motion was postponed to the hearing on the merits. Defendants acknowledged service, and the two defendant companies filed a demurrer to the bill, which was subsequently over ruled on hearing, Mr. Justice Lamar presiding. 48 Fed. 12. Answer was filed by these defendants and the bill taken as confessed as to W. P. Huguley. The cause subsequently went to final decree adjudging recovery on all the bonds and of foreclosure and sale, which decree was afterwards reversed by the circuit court of appeals for the fifth circuit, 6 C. C. A. 79, 13 U. S. App. 359, 56 Fed. 690, because all the bonds were not due, acceptance of interest on some of them having waived default, and the Ocause remanded. Pending the appeal the property was purchased for the bondholders under the decree and $10,000 paid into court by the purchasers as required by the decree, who organized a company under the name of the Galeton Cotton Mills, which corporation was placed in possession of the property and remained in such possession for a period of three years and six months. The decree of foreclosure having been vacated, the circuit court granted a petition on behalf of the Huguley Manufacturing Company to re- Messrs. John T. Morgan, King & Spald store it to the possession of the property, onling, J. L. McLaurin, F. L. Welles, Alex. 0. ⚫293 King, John M. Chilton, Edgar H. Farrar, Benjamin F. Jonas, and Ernest B. Kruttschnitt for appellants. Messrs. L. D. Brandeis and William H. Dunbar for appellees. Mr. Chief Justice Fuller delivered the opinion of the court: The act of March 3, 1891, chap. 517 (26 Stat. at L. 826), provides in § 6 that the circuit courts of appeals shall have appellate jurisdiction to review judgments and decrees of the circuit courts in all cases in which a direct appeal is not allowed by 5 to this court, and that the judgments and decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely on diversity of citizenship. The jurisdiction referred to is the jurisdiction of the circuit court as originally invoked. Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40; Ex parte Jones, 164 U. S. 691, 41 L. ed. 601, 17 Sup. Ct. Rep. 222; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646; Arkansas v. Kansas & T. Coal Co. 183 U. S. 185, ante, 47, 22 Sup. Ct. Rep. 47. of citizenship, and the record does not show anything to the contrary, so that the decree of the circuit court of appeals cannot be regarded otherwise than as made final by the statute. The question before us is whether this appeal was properly granted and can be maintained. In all cases where the decree or judgment of the circuit court of appeals is made final by the statute, an appeal does not lie, but any such case may be brought here "by certiorari or otherwise." The lat ter words add nothing to our power, for if some other order or writ might be resorted to it would be ejusdem generis with certiorari. The writ is the equivalent of an appeal or writ of error as declared by the statute, and it is issued in the discretion of the court. The record filed in this case June 25, 1909, was entirely insufficient, and appellants applied for certiorari to perfect it by bringing up the alleged lacking portions. We granted that application, and the omissions were supplied. This auxiliary writ did not operate to bring the case before us or in itself to add any support to the appeal, which must stand or fall according as the statute did or did not allow it to be taken. Many matters are urged, such as alleged lack of indispensable parties below and so on, as reasons why an appeal ought to lie, but our jurisdiction depends on the stat hardship of particular cases. Finally, it is argued that a large part of the property dealt with by the decree is situated in the state of Alabama, and it is said that therefore the decrees of both courts are void for want of jurisdiction over the subject-matter. *If, after the jurisdiction of the circuit court attaches on the ground of diversity of citizenship, issues are raised, the deci-ute, and cannot be enlarged by the supposed sion of which brings the case within either of the classes set forth in § 5, then the case may be brought directly to this court, although it may be carried to the circuit court of appeals, in which event the final judg ment of that court could not be brought here as of right. Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174. If the jurisdiction of the circuit court rests solely on the ground that the suit arises under the Constitution, laws, or treaties of the United States, then the jurisdiction of this court is exclusive, but if it is placed on diverse citizenship, and also on grounds in dependent of that, then, if carried to the court of appeals, the decision of that court would not be made final, and appeal or writ of error would lie. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646. The general intention of the act was to distribute the appellate jurisdiction and to permit an appeal to only one court. Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343. In this case appellants did not attempt to take an appeal directly to this court from the circuit court, nor could they have done so, since no question was so raised as to bring the case within either of the classes named in § 5. Cornell v. Green, 163 U. S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969. The ground on which the jurisdiction of the circuit court was invoked was solely diversity As the circuit court had jurisdiction over the mortgagor company, the company claiming under it, and the surviving cotrustee of complainant, and the trust deed was made and executed in Georgia, where part of the property was situated, the courts below may have assumed that the case came within Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; International Bridge & Tramway Co. v. Holland, 26 C. C. A. 469, 52 U. S. App. 240, 81 Fed. 422, and kindred cases. But we need not discuss the validity of the decrees in this regard. If the point had been raised in the circuit court, and its decision would have justified an appeal directly to this court, no such appeal was taken. If its existence in the record justified a review of the decree of the circuit court of appeals, the proper course was to Appeal dismissed. •296 (184 U. S. 297) In re HUGULEY MANUFACTURING the trust deed; the decree of foreclosure; COMPANY and Alabama & Georgia the sale to representatives of the bondholdManufacturing Company, Petitioners. Prohibition-mandamus remedies. other adequate A writ of prohibition against proceedings in a circuit court of the United States will not be granted by the Supreme Court where the case is one in which a decision in the circuit court could be taken by appeal to the circuit court of appeals, and, after final decree, an appeal would lie to the Supreme Court in respect to the question of jurisdiction, if properly raised and certified. 2. A writ of mandamus will not be granted to compel the dismissal of a suit by the circult court of the United States for want of jurisdiction, where the writ of prohibition is denied on the ground that there is an ade quate remedy by appeal. ers, and the transfer to the Galeton Cotton Mills; the reversal of that decree by the circuit court of appeals; the second decree and second sale; the confirmation of sale and deed to complainant, who paid all the purchase money; and the appeal thereupon to the circuit court of appeals, and the affirmance of the decree and proceedings. 36 C. C. A. 236, 94 Fed. 269. It was further averred that from this decree of affirmance an appeal was prosecuted May 16, 1899, to the Supreme Court of the United States, where it was still pending. The bill further showed that thereafter the Huguley Manufacturing Company and the Alabama & Georgia Manufacturing Company filed in the chancery court of Chambers county, Alabama, their bill of complaint against the Riverdale Cotton Mills, the Galeton Cotton Mills, Robinson, trustee, Huguley, trustee, and the West Point Manubama & Georgia Manufacturing Company was an Alabama corporation; that all the property described in the trust deed was Bubmitted November 20, 1901. Decided facturing Company, alleging that the Ala Statement by Mr. Chief Justice Fuller: The Riverdale Cotton Mills, by leave of court, filed June 10, 1901, in the circuit court of the United States for the northern district of Georgia, a bill against the Alabama & Georgia Manufacturing Company and the Huguley Manufacturing Company, as also certain solicitors of said companies, as ancillary to the bill of foreclosure in that court, brought by Robinson, trustee, against said companies, the appeal in which has just been disposed of. the property was ever made in Alabama, and that all judicial proceedings in the cir cuit court for the northern district of Georgia were null and void, so far as affected the title of the two companies to the part of the lands lying in Alabama; and it was sought to hold the Riverdale Cotton Mills, the Galeton Cotton Mills, and the West Point Manufacturing Company for the rents and profits of the property since May, 1892. Complainant further averred that each and all of the claims to relief set up by these two companies in the Chambers chancery court were set up, or could have been set up, and were adjudicated in the proceed ings had in the circuit court in the suit of Robinson, trustee, as aforesaid, as appeared from the record and proceedings in that The bill averred that the defendant com- case; and that all the substantial issues, panies were corporations of Georgia, and if raised in the suit in Chambers county had they had also been authorized under the been adjudged and determined by the cir-2 laws of Alabama they had no place of busi-cuit court. Complainant alleged that ness in that state, but only in Georgia; and that the only officers, directors, and stockholders they ever had were the officers, directors, and stockholders of the corporations organized in Georgia; that as long as they had any property it was situated partly in Georgia and partly in Alabama, and was operated as one business from each of the offices of the corporations in Georgia; and that the property of the Alabama & Georgia Company was fully described in the trust deed, a copy of which was attached, being the trust deed foreclosed at the suit of Rob inson, and the property of the Huguley Manufacturing Company was an equity of redemption therein acquired after the execution and delivery of that trust deed. The bill then set forth the acquisition by the Huguley Company of the property, subject to the trust deed, by proceedings in the supe rior court of Troup county, Georgia; the filing by Robinson of the bill to foreclose large part of the property described in the trust deed was situated in the state of Geor gia, and another part in the state of Alabama, and that the circuit court acquired and had full jurisdiction to order the sale of all the property described in the trust deed, and that neither the Huguley Manufacturing Company, the Alabama & Georgia Manufacturing Company, nor W. T. Huguley, who were defendants to the bill filed by Robinson, ever during the progress of the cause in the circuit court raised any issue as to the jurisdiction of that court to render a decree for the sale of all the lands; and complainant alleged that the property was in fact indivisible. Complainant reiterated that the same companies were seeking by the bill of complaint filed in Chambers county to again raise and have investigated by a court of equity the same identical matters and issues which had theretofore been passed upon and adjudicated by the circuit court in the suit of Robinson. Complainant | district of Georgia from taking any further invoked the jurisdiction of the circuit court steps in the suit of the Riverdale Cotton as ancillary to the main suit instituted by Mills or in respect of the suit in Alabama, Robinson to protect it against the violation and for a mandamus requiring the circuit of its rights by the prosecution of the bill court to dismiss the bill of the Riverdale of complaint in the chancery court of Cham- Cotton Mills. The petition which they bers county, and prayed for an injunction asked leave to file averred that they were and general relief. complainants in the chancery suit in AlaThe circuit court, on consideration of the bama filed for the purpose of redeeming the bill, ordered defendants to show cause why property in question, and stated that they an injunction should not issue as prayed were not parties to any litigation in the cirfor, and in the meantime granted a restrain-cuit court for the northern district of Georing order. The two defendant companies gia, but that they had been served with, appeared and showed cause, setting up that what purported to be process from that they were corporations chartered under the court to appear in the alleged ancillary pro-* laws of Alabama; that the Alabama & Geor- ceedings. Petitioners charged that the cir gia Manufacturing Company was a distinct cuit court had no jurisdiction over the and separate legal entity from the Alabama original suit in Georgia, because the prop& Georgia Manufacturing Company incor-erty was located in the state of Alabama; porated under the laws of Georgia, and that it was the Georgia corporation, and not the Alabama corporation, that was made party defendant to the suit of Robinson; and they alleged, on information and belief, that the Huguley Manufacturing Company never was incorporated under the laws of Georgia. They insisted that in the proceedings in Alabama the decree of the circuit court in the foreclosure suit was not conclusive upon them, as the circuit court was without jurisdiction, and that the circuit court had no jurisdiction of this bill because it was an original, and not an ancillary, bill, and complainants and defendants were citizens of Georgia; and, further, that the foreclosure suit was pending in the Supreme Court of the United States. It was also averred that the circuit court was without jurisdiction to issue the injunction prayed, in view of $ 720 of the Revised Statutes; and, further, because after filing the bill in Alabama all the defendants thereto, without pleading in abatement, had filed demurrers, pleas, and answers. that the Alabama & Georgia Manufacturing Company of Alabama was not made a party to the suit in Georgia; that one of the trustees was not joined as complainant; that bondholders protesting against the foreclosure were not made parties; that the other bondholders were not made parties; that the Huguley Manufacturing Company was not given its day in court for redemption; and, in brief, reiterated the grounds presented in their response to the rule to show cause. Messrs. J. O. Welles, John M. Chilton, and Alexander O. King for petitioners. Mr. Chief Justice Fuller delivered the opinion of the court: It is firmly established that where it ap pears that a court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, a party who has ob jected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy, by appeal or The response further set up that the cir- otherwise, or where the question of the ju cuit court was without jurisdiction of the risdiction of the court is doubtful, or deoriginal foreclosure suit, because the com- pends on facts which are not made matter of plainant therein and the Huguley Manufac- record, the granting or refusal of the writ turing Company were citizens of Alabama, is discretionary. Re Rice, 155 U. S. 396, 39 and that the charter of the Alabama & Geor- L. ed. 198, 15 Sup. Ct. Rep. 149. And the gia Manufacturing Company in Georgia had writ of mandamus cannot be used to perexpired by legal limitation before any sale form the office of an appeal or writ of erof the property under the foreclosure pro-ror, and is only granted, as a general rule, ceedings. And it was further alleged that the circuit court was without jurisdiction to sell the mortgaged property because it was all situated in the state of Alabama, or, if not, to sell that portion lying in the state of Alabama, and it was denied that the prop erty in Alabama and Georgia were parts of an indivisible whole. Respondents asked that the rule might be discharged, and the bill dismissed. Upon a hearing the circuit court granted an injunction as prayed until the further order of the court. 111 Fed. 431. On November 20, 1901, the Huguley Manu. facturing Company and the Alabama & Georgia Manufacturing Company submitted a motion for leave to file their petition for a writ of prohibition to restrain the circuit court of the United States for the northern where there is no other adequate remedy. Re Atlantic City R. Co. 164 U. S. 633, 41 L. ed. 579, 17 Sup. Ct. Rep. 208. And it may be added that it is also the general rule as to the writ of certiorari when sought as between private parties and on the ground that the proceedings below are void, that it will be granted or denied in the sound discretion of the court, and will be refused where there is a plain and adequate remedy by appeal or otherwise. Re Tampa Suburban R. Co. 168 U. S. 583, 42 L. ed. 589, 18 Sup. Ct. Rep. 177. In this case there was, under the act of Congress of June 6,*1900 (31 Stat. at L. 660, chap. 803), a plain and adequate remedy by appeal to the circuit court of appeals for the fifth circuit from the interlocutory order granting an injunction. After a final de 008. |