Judgments recovered in one State of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties. Buckner v. Finley. In the exercise of its general appellate juris[supra]; M'Elmoyle v. Cohen, 13 Pet. 312.324 [38 diction from a lower court of the United States, U. S. bk. 10, L. ed. 177, 183]; D'Arcy v. Ket- this court takes judicial notice of the laws of chum, 11 How. 165, 176 [52 U. S. bk. 13, L. ed. every State of the Union, because those laws 648, 653]; Christmas v. Russell, 5 Wall. 290, are known to the court below as laws alone, 305 [72 U. S. bk. 18, L. ed. 475, 478]; Thomp-needing no averment or proof. Course v. Stead, son v. Whitman, 18 Wall. 457 [85 U. S. bk. 21, L. ed. 897].

[7]

States v. Merchants' Bank, 7 Gill, 415, 481;
Coates v. Mackey, 56 Md. 416, 419.

From these considerations, it follows that
the averment in the third count of the dec-
laration, that by the law of Pennsylvania the
judgment rendered in that State against Charles
Donoghue and John Donoghue was valid and
enforceable against Charles, who had been
served with process in that State, and void
against John, who had not been so served, must
be considered, both in the courts of Maryland
and in this court on writ of error to one of
those courts, an allegation of fact, admitted by
the demurrer.

Mr. Justice Miller delivered the opinion of the court:

This is an appeal from the Circuit Court for the Northern District of Ohio.

The suit was originally brought by a bill in equity, in the name of Elizabeth R. Eaton, by her next friend, Rufus J. Eaton. During its progress Mrs. Eaton died, and her next friend was appointed administrator of her estate, and it was revived by him in that character. Afterwards her heirs were made plaintiffs also.

The case as it was presented to the circuit court for final decree, and as it comes before us, is to be gathered from the pleadings, documentary evidence, written correspondence and depositions which are voluminous. We shall not

[34]

Upon the record before us, therefore, the
plaintiff appears to be entitled, under the Con-
stitution and laws of the United States, to judg-recapitulate the evidence, but state the material [35]
ment on this count. It having been admitted
at the bar that the other counts are for the
same cause of action, it is unnecessary to con-
sider them. The general judgment for the de-
fendant is erroneous, and the rights of both
parties will be secured by ordering, in the usual
form, that the

facts as we believe them to be established.
John B. Eaton, the husband of the complain-
ant, who resided with her in Maine and who
claimed to be the owner in his own right of nine-
ty-five acres of land near the town of Defiance, in
the State of Ohio, lying between the Wabash and
Erie Canal and the Pittsburgh and Fort Wayne
Railroad, was in July, 1874, at Defiance, try-
ing to sell it. Being in pressing want of money,
he made his note for $400, payable to the Defi-
ance National Bank in ninety days, dated July
30, 1874, with Holgate and Newbegin, who are
James H. McKenney, Clerk, Sup. Court, U. 8. appellants here, as his sureties. This note they
afterwards paid.

Judgment of the Court of Appeals of Mary-
land be reversed, and the case remanded to that
court for further proceedings not inconsistent
with this opinion.

True copy. Test:

[33] WILLIAM C. HOLGATE ET AL,, Appts.,

D.

RUFUS J. EATON, Admr. of ELIZABETH
R. EATON, Deceased, ET AL.

(See 8. C., Reporter's ed., 83-42.)

On the same day Eaton made a conveyance, above mentioned, and at the same time he and absolute on its face, to Holgate, of the land Holgate executed the following agreement:

"Defiance, Ohio, July 30. 1874.
"This memorandum witnesseth, that John B.
Eaton, of Fryeburg, Maine, has this day sold
to Wm. C. Holgate, 'that part of the east half
of section twenty-seven (27), T. 4 N. R. 4 E.,
Husband and wife-contract by husband affect-lying between the Fort Wayne road and the W.
ing wife's equitable estate-specific perform
ance not decreed, when.

1. A wife's equitable estate in property held by her husband as trustee cannot be affected by a convey ance by him; nor can it be made liable for a contract made by him, to which she was not a party and which she has not sanctioned.

& E. Canal, and containing ninety-five acres,
more or less, excepting 12 acres now held
by Michael Gorman, all more fully described
and set forth in a deed this day executed by
said John B. Eaton to said Holgate. It is un-
derstood said Holgate is to pay for said land the
claim Adam Wilhelm may hold on said prem-
sum of six thousand dollars, and any valid tax

2. Upon the facts of this case, it is held that the
wife was not bound by her husband's contract af-
fecting her equitable estate; that having repudi-ises, one thousand dollars of which is to be paid
ated his action in the matter until after a material
change in the circumstances, she could not then
take advantage of the contract; that no contract
had been completed between her and the defend-
ants; and that the bill should be dismissed, but that
the cross bill of the defendants should be prose-
cuted to determine their rights growing out of a
tax title and the payment by them of a certain sum
on account of the husband.

3. Where time is not expressly or impliedly of the essence of a contract, in case of gross laches or inexcusable negligence on the part of a party who seeks a specific performance, or a material change in the circumstances affecting the rights of the parties, a court of equity will refuse to decree a specific performance.

[No. 75.]

Argued Nov. 24, 25, 1885. Decided Dec. 14, 1885.

APPEAL from the Circuit Court of the United

States for the Northern District of Ohio.
The history and facts of the case appear in
the opinion of the court.

Messrs. Henry Newbegin and William
C. Holgate, in person, for appellants.
Messrs. James H. Hoyt and H. S. Sher-
man, for appellees.

on or before October 1, next: two thousand dol-
lars in six months thereafter; fifteen hundred
dollars ($1,500) in one year thereafter, and fif-
teen hundred dollars in two years thereafter,
with interest from and after October first. It
is further understood said Eaton is to execute
another deed of warranty, his wife being joined
with him as grantor in same, and to forward
said deed on to H. Newbegin for said Holgate,
which is to be substituted for the deed this day
executed to said Holgate as aforesaid. And said
Eaton agrees to send on to said Newbegin the
mortgage and notes on which the judgment was
taken by which his title was acquired, in case
he can find same, which are to be filed accord-

ing to law. It is further understood and agreed

that if, on or before said October first, from
any cause, said Holgate shall prefer not to hold
said premises on the terms herein set forth, said
Eaton agrees to repurchase same of him, and
to release any installment that is unpaid of said
Holgate, or portion of same, and the obligation
to pay said Wilhelm's tax claims; also to refund

[36]

[37]

But we are of opinion that in this the master was in error.

It is quite clear to us that Holgate had full notice of Mrs. Eaton's interest in the land, for he seems to have been aware of the nature of the assignment by Campbell of the notes and mortgage to Eaton, and therefore required that they be delivered up to him, if they could be found, and they were found.

with interest four hundred dollars ($400) this | Mrs. Eaton_required by the contract was un-
day advanced on said $1,000 installment to necessary, because by the sale and purchase
come due October first next, and for any ad- under the foreclosure proceedings Eaton had ac
vancements to said Eaton by said Holgate that quired title, and his deed to Holgate was suffi-
is or may be made, said Holgate shall have a cient to convey that title discharged of all equi-
lien on said premises, and may hold the title table rights of Mrs. Eaton.
for same as security till such advancements
shall be adjusted. If, however, said Holgate
shall be satisfied with said purchase on account
of quality of land and all other particulars, he
shall, at any time after sixty days, on demand
of said Eaton, execute and deliver his notes for
any unpaid part of said installments, secured
by mortgage on the premises. It being under-
stood that any amount the railway companies
nay pay over for the portion of said premises But as a still further security against Mrs.
between the two railways shall be credited on Eaton's equitable right or interest in the lands,
the said $6,000 to be paid by said Holgate, or he took from Eaton the covenant that if he
to go to said Eaton, less advancements afore-elected to hold the land as a purchaser, Mrs.
said, if said Holgate shall prefer to release and Eaton should join with him as grantor in an-
reconvey his interest in the premises aforesaid. other deed, with warranty of title. It is idle
Given under our hands and seals the day and to say that Holgate did not have a pretty clear
year above written.
idea of Mrs. Eaton's rights in the land, and in-
tended to have full protection against them, and
that this part of the covenant had reference to
a right of dower. She was to join as grantor
in the warranty of title.

J. B. Eaton.

[Seal.]

That all the parties understood that Mrs. Eaton had the paramount interest and equitable title to the land is seen in the whole subsequent correspondence.

Wm. C. Holgate. [Seal.]
"Attest: Henry Newbegin."
Holgate immediately assigned to Newbegin
an undivided half interest in this contract, of
which Eaton had due notice. He also, within
the time limited, notified Eaton of his election
to hold the property, and required him to fur-
nish the deed in which Mrs. Eaton was to join, It is argued on the part of the appellants, on
and the mortgage and notes on which the fore the other hand, that the deed of Eaton and the
closure proceeding was had, and on which Eat-accompanying contract constituted a mortgage
on's title depended.
for the security of Holgate in regard to the $400
This deed, however, was not tendered to ap- | note which he agreed to pay, and for the sum
pellants until December 7, 1876, though the
notice and request for it was received before
October 1, 1874. As appellants rely upon this
delay as a defense to the suit for the purchase
money, it is necessary to consider its import-
ance in the contract and the excuses offered for
the delay.

It appears sufficiently, we think, on the final hearing, that Mr. Eaton had no other interest in the land at the time he executed this agreement and made his deed to Holgate than that of trustee for his wife. "The mortgage and notes on which judgment was taken, by which his title was acquired," were never produced until the hearing before the master in 1882, and the effect of them as evidence is thus stated by the master:

he might have to advance to buy in the tax ti-
tle of Wilhelm, with the option, on the part of
Holgate, to convert it into a purchase before
October 1, that is, within sixty days. We do
not deem it important to decide whether we call
the transaction a mortgage or a conditional pur-
chase. The effect is the same either way, as,
if the purchase was perfected, the $400 was to
be part of the purchase money. If it was not
perfected, it, with the amount paid for the tax
title, was to be a lien on the land conveyed.

It seems that when Mrs. Eaton was informed
of the transaction between her husband and
Holgate she refused to abide by it, and would
not make the deed which the contract called
for.

In August, Holgate had informed Eaton of his
"It appears that, by the will of William A. election to hold the land, and in a letter of Sep-
Allen, brother of Elizabeth R. Eaton, a share tember 30 he requests him to forward the deed
of his estate was given to her. Bartley Camp in which his wife was to join. It is quite ap-
bell, of Cincinnati, her agent, seems to have had parent that Mrs. Eaton had got possession or
possession of this share of the estate, being per-control of the notes and mortgage, which Mr.
sonal property, and used it as his own. In ac-
counting for the same, he assigned a mortgage
which he held on lands in Defiance to John B.
Eaton, her husband, in trust for Mrs. Eaton
and her children. This mortgage was fore-
closed under proceedings at Defiance, in which
John B. Eaton appeared to be the only party in
interest, and at the sheriff's sale he became the
purchaser, and the sheriff's deed was made to
him, of about ninety-five acres of land in De-
fiance."

It should be added that the assignment of this mortgage expressed on its face that it was for the benefit of Mrs. Eaton.

It is said by the master that the deed from

Eaton was therefore unable to surrender, and
he had to confess his inability to get Mrs. Ea-
ton to join him in the deed. About this time the
railroad company, by judicial proceedings, con-
demned and appropriated thirteen acres of the
land for its use; and the sum of $2,600 awarded
as damages was matter of contention between
Mrs. Eaton and her busband.

[38]

Under these circumstances, Holgate and New. [39] begin entered into correspondence with Mrs. Eaton and her son, who acted for her in the matter. They both denied the binding force of the transaction with Mr. Eaton on Mrs. Eaton.

This correspondence ran through two years, in all of which Holgate and Newbegin urged

[40]

her to fulfill the contract by making a convey- | prudence in enforcing a specific performance
ance of the land, and Mr. Eaton seems to have of the agreement to buy the land and pay the
dropped out of the matter in utter helplessness. purchase money, and the allowance which a
Holgate insisted that the price of the land con- court of chancery sometimes makes for delay
demned by the railroad company should be de- when time is not of the essence of the contract.
ducted from the price he had agreed to pay. In the case of Taylor v. Longworth, 14 Pet.
and still pressed for his deed. Finally, in June, 172 [39 U. S. bk. 10, L. ed. 405], Mr. Justice
1875, Holgate sent to Mrs. Eaton a mortgage Story uses language which has since become a
executed by him and Newbegin on the land, legal maxim in this class of cases: "In the first
less the thirteen acres taken by the railroad com- place (he says) there is no doubt but that time
pany, with two notes for $1,500 each, payable may be of the essence of a contract for the sale
directly to her, not negotiable, and requested of property. It may be made so by the express
her to send the deed of herself and Mr. Eaton stipulation of the parties, or it may arise by im-
for the land described in the mortgage; but she plication from the very nature of the property,
declined to do so, though she kept the notes and or the avowed object of the seller or purchaser.
mortgage.
And even where time is not thus either express
ly or impliedly of the essence of the contract,
if the party seeking a specific performance has
been guilty of gross laches or has been inex-
cusably negligent in performing the contract
on his part, or if there has been in the interme-
diate period a material change of circumstances
affecting the rights, interests, or obligation of
the parties-in all such cases courts of equity
will refuse to decree any specific performance,
upon the plain ground that it would be inequi-
table and unjust.'

On the 7th December, 1876, she did, however, tender such a deed, which Holgate and Newbegin refused to receive, and demanded payment of the $400 they had paid the bank on the note for Mr. Eaton and the sum they had paid Wilhelm for his tax title, $424. Shortly after this the present suit was commenced.

We think that the correspondence shows that
during all this time, until a few months before
Mrs. Eaton sent her conveyance, the appellants
showed themselves ready, willing and eager to
perform the contract; that Mr. Eaton, with It is quite apparent, therefore, that if Mrs.
whom they had contracted, proved himself un-Eaton is seeking to enforce the contract made
able to perform his covenant to procure his
wife's conveyance; and that she, when appealed
to and offered the consideration which the con-
tract provided for, repudiated the husband's ac-
tion in the matter, and held the notes and mort-
gage of the appellants for eighteen months, re-
fusing to make the deed, without which she
had no right to hold them a day.

This deed was essential to the contract. Without it Holgate would get nothing for the money he had paid and the notes he had tendered. He had a right to prompt action on the part of Mrs. Eaton if she intended to accept the contract. We are bound to hold that while she had a right to refuse to be bound by the contract, she could not play fast and loose with the other parties to suit her pleasure. When, a year and a half after the notes and mortgages were sent to her, she tendered her deed it was too late to bind the appellants without their consent.

An important consideration leading to the same conclusion is, that at the time the contract was made and for a year or more after the value of the property continued to increase, but, for reasons not necessary to discuss, it had decreased so largely that at the time she tendered her deed it was worth far less than when Holgate elected to keep the land as a purchaser and demanded of Eaton the joint deed of himself and Mrs. Eaton. It is reasonable to suppose that this depreciation in value entered into the motives which finally induced her change of mind in the matter. The injustice of permitting her to delay two years her consent under these circumstances is obvious.

with her husband, she has been grossly negli-
gent, until altered circumstances have lost her
the right to do so; and if she relies on a con-
tract with herself, no such contract was ever
completed.

Her bill, therefore, should have been dis-
missed.

Holgate and Newbegin, however, filed a cross bill against Mr. & Mrs. Eaton asserting a right to recover the $400 paid for Eaton, and the $424 paid for the deed of Wilhelm for his tax title; and Mrs. Eaton having died while these suits were pending, her executor and her children were made parties in both bills. This cross bill presents more difficulty to our minds than the main bill, for it seeks to subject the land to the payment of these sums with interest. Undoubtedly, if Mrs. Eaton had accepted the contract made by her husband she would have been bound by this part of it as well as the other, and, failing to perform her part of it, these sums would become a lien on the land, according to the agreement. But she never became bound by that contract. As we have just said, no contract was ever made between her and Holgate. They never were bound to each other at any time. There was never a common consent of minds on the subject.

We have also expressed the opinion that Eaton's deed to Holgate did not convey her equitable interest, nor did his contract bind her in the agreement. It did not bind her to join him in a conveyance, and it did not bind her land as security for the money advanced to her husband. The same consideration applies to the purchase of the Wilhelm tax title. We cannot The case before us is practically a bill by see how the equitable estate of Mrs. Eaton in Mrs. Eaton for specific performance. At law her lifetime, or of her heirs now that she is she could sustain no action on the notes, and dead, can be made liable for a contract to which the circumstances under which she received and she was no party and which she never sancheld them and the mortgage would be a perfect tioned. But appellants have such title or indefense to a mere foreclosure of the mortgage. terest in the land as Mr. Eaton had, and which Her only ground of success in the present suit passed by his conveyance. This may be a life therefore is in the principles of equity juris-estate. It may be a right to hold as a lien for

[41]

[42]

[43]

costs and expenses, or it may be the naked le-ed States on a claim "for property and supplies
gal title. Whatever it is passed to Holgate by
the deed.

As regards the Wilhelm tax title, it may be a perfect title or it may be a lien for the taxes paid by the purchaser at the tax sale. Or it may be that Holgate, holding the legal title as Eaton did, in trust, was bound to protect that title by the purchase from Wilhelm; and if so, it may be a lien on the land, though not a perfect title.

Of all this we are unadvised. But in the cross bill Holgate and Newbegin tender a conveyance of both these rights upon payment of the two sums mentioned, with interest. If the heirs of Mrs. Eaton will pay these sums and accept the conveyance, they should be permitted to do 80. If they decline, the plaintiffs in the cross bill may be entitled to a decree against Mr. Eaton in personam, for he is a defendant to that bill, has appeared, but made no answer. As regards the cross bill against the heirs of Mrs. Eaton, if they will not pay these sums, the appellants can dismiss their bill as to them without prejudice to the legal rights of Holgate and Newbegin under the deeds from Eaton and Wilhelm, or they can proceed in it according to the principles of equity.

The decree of the Circuit Court in the original bill is, therefore, reversed, and the decrec in the cross bill also. The case is remanded to the Circuit Court, with instructions to dismiss the original bill at the cost of the plaintiffs in that bill, and to take such further proceedings in the cross bill as are not inconsistent with this opinion, and as may be appropriate to enforce the rights of plaintiff's therein.

True copy. Test:

taken *** for the use of the armies of the
United States during the war of the rebellion,"
allowed by the Commissioners of Claims un-
der the Act of March 3, 1871, 16 Stat. at L.
524, chap. 116, § 2, on the ground that "Said
sum of money was paid to defendant unler
Act of Congress, approved March 3, 1875, as
heir and legatec of his deceased father's estate,
and in mistake that the said sum was due him
as only heir and legatce of decedent, when in
truth and in fact the property and supplies so
taken *** belonged jointly to defendant and
his two brothers;" and "when in truth and in
fact the defendant and his said brothers were
disloyal to the Government during the war of
the rebellion, and not entitled under the law to
recover said sum of money or any part thereof."
The Act of March 3, 1875, 18 Stat. at L. pt.
3, 637, 646, Private Laws, chap. 205, is as fol-
lows:

"Be it enacted, etc., That the Secretary of
the Treasury be, and he is hereby, authorized
and required to pay, out of any money in the
Treasury not otherwise appropriated, to the
several persons in this Act named, the several
sums mentioned therein, the same being in full
for and the receipt of the same to be taken and
accepted in each case as a full and final dis-
charge of the several claims presented by such
persons to the Commissioners of Claims under
the Act of March 3, 1871, and reported to the
House of Representatives under the said Act,
that is to say: *** Bem Price, $6,306 ** **

The district court gave judgment for the de-
fendant. To reverse that judgment this writ of
error was brought.

We are unable to distinguish this case in
James H. McKenney, Clerk, Sup. Court, U. S. principle from that of United States v. Jordan,

UNITED STATES, Piff. in Err.,

v.

BEM PRICE.

(See S. C., Reporter's ed., 43-45.)

Suit to recover money paid under private Act
Secretary of the Treasury has no discretion.

Where, by Act of Congress, the Secretary of the
Treasury is required to pay a certain claim against
the United States, no discretion in the premises be-
ing vested in him, the claimant is entitled to pay-
ment; and a suit to recover back the amount when
paid, on the ground of mistake, does not lie, unless
Congress abrogates the law under which payment
was made, or directs suit to be brought.

[No. 210.]

Submitted Nov. 23, 1885. Decided Dec. 14, 1885.

N ERROR to the District Court of the United

113 U. S. 418 [Bk. 28, L. ed. 1013], in which it
was held that when an Act of Congress direct-
ed the Secretary of the Treasury to pay to a
certain person a specific sum of money, the
amount of taxes assessed upon and collected
from him contrary to the provisions of certain
treasury regulations, "no discretion was vested
in the Secretary or in any court to determine
whether the sum specified was or was not the
amount of tax assessed contrary to the provis
ions of such regulations; and that conse-
amount stated by Congress was the true amount
quently the payment must be made whether the
collected or not. The court of claims had held
that the language of the Act, "taken together,
was too clear to admit of doubt, that Congress
undertook, as it had the right to do, to deter-
mine not only what particular citizens of Ten-
nessee, by name, should have relief, but also
the exact amount which should be paid to each
of them." In this we fully concurred.

The Act now under consideration "re

1States for the Northern District of Missis- quired" the Secretary of the Treasury to pay

sippi.

The history and facts of the case sufficiently appear in the opinion of the court.

Mr. A. H. Garland, Atty-Gen., for plaintiff in error.

Mr. J. Z. George, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

This is a suit brought to recover back a sum of money collected by Bem Price from the Unit

Price the money he got. It was when the pay-
ment was made and is now the law of the
land that he was entitled to that sum from the
United States on account of his claim. The
Secretary of the Treasury could not refuse to
pay it, and no authority has been given anyone to
sue to recover it back. It may be that Congress
required the payment to be made under a mis-
take, or that the claim was not a just one; but un-
til Congress abrogates the law or directs suit to
be brought to recover back the money, the con-

[44]

[45]