death of the defendant; a number of authori- | roneous. The proceedings in the case are not ties sustain the contrary position.

final until the property is sold, and the pro-
ceedings of sale confirmed by the court. The
equity of redemption continues until the sale
of the property and the ratification of the sale.
A party who has a decree of foreclosure in his
favor, in proceedings on a mortgage, cannot
hold the property under the decree. By the
decisions of the courts of Kentucky, a sale of
the mortgaged premises must be made, and the
residue of the proceeds of the sale, after pay
ment of the debt, must be paid to the mor-
gageor. Suppose part of the estate sold and
the mortgage satisfied; does not the residue be-
long to the mortgageor? This shows a con-
tinuing interest in the property mortgaged,
until the proceedings of sale are completed.
Mr. Sergeant, for the appellees:

The party defendant has a right to come in after a sale and object to it, if anything in the proceedings has been irregular or illegal. If the return to the order of sale had stated that all the parties were dead, would the court have confirmed the sale! By the laws of Kentucky the defendant has a right to point out what part of the estate may be sold under an order of sale. The necessity of the presence of the defendant at the sale is therefore apparent. Both Breckenridge and Whiting were dead at the time of the sale, and yet the sale was confirmed. The decree confirming the sale should therefore be opened, and the parties now before the court should be allowed to come in and redeem. Allen v. Belcher et al. 2 Hen. & Mun. 595; also Mackey v. Bell, 2 Mun. 523; Lovell v. The objections by the appellants are to the Dana, 2 Mun. 367; Forman v. Hunt, Ibid. 622. sale of the property. The first matter to be The interest in the complainants is sufficient noticed is, that the interests of the land sold for a bill of review. 4 John J. Marshall's Ke- under the decree of foreclosure, have essentialports, 500. This case shows that a bill of re- ly changed. The property has been sold withview will lie in such a matter as that now pre-out warranty, and large and expensive buildings have been erected upon it. This is stated in the answer of the Bank of the United States to the complainant's bill, and in the agreed statement of facts.

sented to the court.

This case will be decided by the cases which have been decided in the courts of Kentucky. In Kentucky, bills of review are allowed for errors on the face of the record, and not in cases where the error is in the decree only. In Kentucky, a bill of review lies for any error in the proceedings in the case. There the decree does not, as in England, set forth the whole matter in the cause; and to deny a bill of review on the principles which apply to the cases in the Court of Chancery in England, would be to deny it altogether.

If this is the law, and it will not be denied, the record exhibits such errors 88 may be brought before the court by a bill of review. Breckenridge was a necessary party. He had a deep interest in the proceedings against the land.

No exception will lie to the bill on the ground of the interference of the statute of limitations. It was filed within five years after the sale, and the termination of the minority of the children of Whiting. The law of the United States saves the rights of minors.

While it is admitted that no case has been cited in which a bill of review has been sustained, principally like that now before the court; yet it is claimed that in such a case a writ of error would lie if the proceedings had been at law; and the bill of review in a chancery case is analogous to a writ of error in a case at law. The argument for the appellees is, 10*]that if in the course of the proceedings *to sell the property, exceptions were not taken to their regularity, they cannot now be taken notice of by a bill of review. Yet writs of error are maintained in suits on the ground of want of parties. The practice is to send back the proceedings, and allow amendments to be made which will bring the merits of the case forward. This is a similar case. 6 John J. Marshall's Rep. 197.

The heirs may come in and show they were not parties to the sale, and may examine the manner in which it was conducted. This is essential to the proceedings in the case.

It is said that the decree is final on the order of foreclosure of the mortgage; but this is er

"It is admitted that the bank pulled down a plain brick dwelling-house, as appears in said will, No. 2, on said lot where Fifth Cross street, if extended, would run and extend said street to Walnut street, and they sold, as stated in the answer, to different persons, and the improvements stated of the Roman Catholic church and others, extension of the street and other improvements have been made and put upon the ground, and that the persons named are living on the lot aforesaid."

All these persons have expended large sums in the improvement of the property, and the question before the court is, whether all that was done in 1827 shall be undone, and the parties be permitted to come in and redeem. This is what is asked. It is not the course of a court of equity, on a bill of review, to bring into review what has been decided. If such a bill were allowed, it would be in the nature of an answer, and bring again into controversy all that had been passed upon by the court. The res adjudicata is in equity as at law. The rule must be the same.

There are bills of review in the nature of original bills, as when a person has not [*11 been made a party to the original proceedings, and may be affected by them. Mr. Breckenridge might in this case have come in, if he had been injured.

There are two other descriptions of bills of review in England. 1. A bill filed after the original bill has been enrolled, or there has been a final decree. 2. A bill filed when the decree has not been made, and before enroll. ment.

The error must be apparent on the face of the decree, and the court cannot go into the evidence in the original proceedings. Story's Equity, 334; Lord Eldon in Perry v. Philips, 17 Ves. 178. No persons but parties or privies can have a bill of review. Gilbert, For. Rom. 186; Slingsby v. Hale, 1 Chan. Cas. 122. And none but those who have an interest in the proceedings can maintain such a bill; nor un

and his mother, Enfield Johnson, Breckenridge, and Whiting, on the same day executed a mort. gage of the five acre lot, and slip of land above mentioned, to the Bank of the United States, reciting, among other things, the foregoing ar rangement.

less they suffer from the particular error as-curity for the due payment thereof, Johnson signed, or pointed out in the decree. Webb v. Pell, 3 Paige, 368; Mitford (by Jeremy), 205. Other persons in interest, and privies in title or estate, who are aggrieved by the decree, may have an original bill in the nature of a bill of review, so far as their own interests are concerned. Wyatt, 98, 100; Mitford, 92. Opportunities, during the proceedings on a bill in chancery, to interpose and correct errors, are always afforded, as by demurrer or by plea; when proper parties may be introduced. 16 Ves. 325; Mitford, 180; Cowper, 185; 3 Paige, 222; 2 Paige, 281. The court will then decide on the matters presented, and if necessary there may be an amended bill, or a supplemental bill. But such a decision would not be an error in the decree to entitle to a bill of review. This is much stronger where a party has been omitted and does not complain; as in the case being unpaid, a bill for a foreclosure and sale was fore the court, in which Breckenridge is not a party.

But in addition to all these matters, Whiting had not a title to the property, or any interest in it. It had never been his, and the proceeding to foreclose against him, devested every equitable claim he could set up. The decree of foreclosure was in the lifetime of Whiting, barring him and his heirs, and the statute of limitations began to run from the time of the decree. An execution levied does not stop by the death of the party. The sale did not require, as a prerequisite to its proceeding and completion, that the heirs should be brought in. Finally. The bill of review is barred by length of time. Elmendorf v. Taylor, 10 Wheat. 150. More than five years have elapsed from the decree to the filing of the bill of review. The statute, as has been said, began to run its course in the life of Whiting; and it was not stopped by disabilities occurring on his death.

Mr. Justice Story delivered the opinion of

the court:

The condition of the mortgage, among other things, stated, that it was agreed by the parties, that after the satisfaction of the said demands due by Whiting to the bank, and by Gabriel J. Johnson to Whiting, the estate, or the residue thereof, or any surplus, if money, by the sale thereof, should be paid or conveyed to Enfield Johnson or her assigns. The mortgage also contained a stipulation for the sale of the premises, to meet the payment of the debt due to the bank. In April, 1823, the debt due and thus secured to the bank remainbrought by the bank, in the Circuit Court of the United States for the District of Kentucky; and to that bill, Gabriel J. Johnson, Enfield Johnson, and Whiting were made parties. But Breckenridge was not made a party. At the November Term of the Circuit Court, A. D. 1826, a decree of foreclosure of all the equity or right of redemption of the defendants in the mortgaged premises was passed; and a further decree, that the premises should be sold by commissioners. The sale took place accordingly; the bank became the purchasers; and the sale was confirmed by the Circuit Court at the May Term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on the 26th of February, 1827, Whiting died in Massachusetts, leaving the plaintiffs in the present bill, Paulina Whiting, and Helen B. Whiting, and one L. R. Whiting (since dead without issue) his children and heirs-at-law; who were then infants under age; and the youngest, Helen, did not come of age until 1831.

The present bill is brought by Paulina Whiting and Helen B. Whiting, by James Richardson, administrator of Ruggles Whiting, and by Gabriel J. Johnson and Enfield Johnson, against the Bank of the United States; and after stating the proceedings in the original suit upon the mortgage, and that the sale was made at a great sacrifice of the property, it relies [*18 on the following grounds of error in the proceedings, decree, and sale in the original suit: 1. That it was irregular and erroneous to entertain the bill and pronounce the decree for foreclosure and sale, without Breckenridge being made a party defendant. 2. That it was irregular and erroneous to sell the property mortgaged, without a revival of the suit against the heirs of Whiting. 3. That it was unjust and oppressive to sell in the manner and at the

This is the case of a bill, purporting to be a bill of review. The substantial facts, as they appear on the record, are as follows: Gabriel J. Johnson being the owner in remainder of a 12*] five acre lot, *No. 9, in Louisville, Kentucky, of which his mother, Enfield Johnson, was tenant for life, under the will of his father, and being also the owner in fee, by another title, of another piece of land adjoining the five acre lot (a part of the slip No. 2), on the 12th day of November, A. D. 1818, conveyed the same in mortgage to James D. Breckenridge, to secure the latter for his indorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes and contracts which Breck-price when the sale took place. enridge should thereafter make, execute, accept, or indorse, for the benefit of Johnson, Afterwards, on the 9th day of August, A. D. 1820, Johnson, and Breckenridge, as his surety, being indebted to the Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars and thirty-seven cents, arrangements were made between them and Whiting, by which Whiting assumed the payment of the same debt, and gave his note therefor to the bank accordingly; and as se

The answer of the bank denies all equity in the plaintiffs, and insists that the decree and sale were fair and just. It also denies that Whiting or Breckenridge had any title to the property, and insists that they joined in the mortgage merely to complete the arrangements made between Johnson and themselves. It also denies that the death of Whiting was known at the time of the sale. It states that the property was, after the purchase by the bank, improved, and parts thereof sold to bona fide

purchasers for valuable considerations; and by reason of the improvements and the extension of the city, parts of the grounds so sold are now among the most beautiful and densely built parts of the city. The answer also states that Whiting died insolvent and deeply indebted to the bank, by certain other judgments and

notes.

Having made these explanations, which seemed proper with reference to the arguments pressed at the bar, we many now return to the consideration of the direct points presented for the consideration of the court. The third and last error relied on in the bill, has been abandoned at the argument, and therefore it need not be examined. The other two remain to be Such are the material facts and statements in disposed of. And first, as to the supposed the case, and upon them, so far at least as the error in not making Breckenridge a party to present bill of review is concerned, there is no the original bill. Assuming that he was controversy between the parties. The prayer proper party to that bill, still it is to be conof the bill is, that the proceedings may be re-sidered, that it was an objection which ought vived (as the word stands on the record, proba. properly to have been taken by the present bly by mistake, for reviewed), and that the parties on the original hearing, or upon the apdecrees and sale may be set aside; that the peal (if any) before the appellate court. And plaintiffs may be permitted to redeem; and for upon a bill of review it cannot properly be reother relief. lied on as matter of error, unless it can be shown that the nonjoinder has operated as an plaintiffs. No such injury or mischief has been shown, or is pretended. Breckenridge is not bound by the original decree, because he was no party thereto; and, therefore, his interests cannot be prejudiced thereby. But if they were, he, and he alone, has a right to complain, and to seek redress from the court; and not the plaintiffs, who are not his representatives, or entrusted with the vindication of his rights. Breckenridge has made no complaint and sought no redress. We think, therefore, that this error, if any there be, not being to the prejudice of the plaintiffs, cannot furnish any ground for them to maintain the present bill; for no party to a decree can, by the general principles of equity, claim a reversal of a decree upon a bill of review unless he has been aggrieved by it, whatever may have been his rights to insist on the error at the original hearing, or on an appeal.

Some suggestions have been made as to the nature and character of the present bill-injury or mischief to the rights of the present whether it is to be treated as a bill of review, or what other is its appropriate denomination. As the original decree, which it seeks to review, was properly, according to our course of practice, to be deemed recorded and enrolled as of the term in which the final decree was passed, it is certainly a bill of review in contradistinction to a bill in the nature of a bill of review; which latter bill lies only when there has been no enrollment of the decree. Being a bill brought by the original parties and their privies in representation, it is also properly a bill of review in contradistinction to an original bill in the nature of a bill of review; which latter bill brings forward the interests affected by the decree other than those which are founded in privity of representation. The present bill seeks to revive the suit by introducing the heirs of Whiting before the court; and so far it has the character of a bill of revivor. It seeks also to state a new fact, viz., the death of Whiting, before the sale; and so far it is supplementary. It is, therefore, a compound bill of review, of supplement, and of revivor; and it is entirely maintainable as such, if it presents facts which go to the merits of the original decree of foreclosure and sale. It has also been suggested at the bar, that no 14] bill of review lies *for errors of law, except where such errors are apparent on the face of the decree of the court. That is true in the sense in which the language is used in the English practice. In England, the decree always recites the substance of the bill and answer and pleadings, and also the facts on which the court founds its decree. But in America the decree does not ordinarily recite either the bill, or answer, or pleadings; and generally not the facts on which the decree is founded. But with us the bill, answer, and other plead ings, together with the decree, constitute what is properly considered as the record. And therefore, in truth, the rule in each country is precisely the same, in legal effect; although expressed in different language-viz., that the bill of review must be founded on some error apparent upon the bill, answer, and other pleadings, and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree, founded on the supposed mistake of the court in its own deductions from the evidence.

In the next place, as to the sale of the mortgaged premises after the death of Whiting, without a revival of the suit against his heirs, it is not even pretended in the bill of review that there was any fraud in the зale; nor upon the argument has any irregularity even been insisted on. What, then, is the gravamen? That the land was sold honestly and fairly, but for a less price than its real value. Now, [*15 such an objection, even in the mouth of Whiting himself, if he had been living, would have constituted no valid objection to the sale, or the confirmation thereof; but at most would have furnished only a motive to induce the court, in its discretion, to have ordered a resale, or to have opened the biddings. It would be no matter of error whatever. If this be a correct view of the subject, it is plain that the heirs of Whiting cannot be entitled to be put in a better predicament than Whiting himself; and no decree in equity ought to be reversed for matter of mere favor, and not of right.

But is the objection itself, in principle, well founded? That depends upon this: whether the decree of foreclosure and sale is to be considered as the final decree in the sense of a court of equity, and the proceedings on that decree a mere mode of enforcing the rights of the creditor, and for the benefit of the debtor; or whether the decree is to be deemed final only after the return and confirmation of the sale by a decretal order of the court. We are of opin

V.

Defendant in error.

Proceedings of Maryland courts concerning
property in the District of Columbia prior to
congressional legislation for that district-
guardian's deed-acknowledgment of deeds,
irregularity in.

Maryland, and the laws of that State prior to the
The proceedings of the courts of the State of
passing of laws by Congress providing for the gov
ernment of the District of Columbia, were in full
ceded by the State of Maryland, until Congress had
force and operation in that part of the district
legislated for the government of the District of
Columbia; and the decree of the Court of Chancery
Columbia, in a cause entertained in that court,
of Maryland, affecting property in the District of
operated in the district until Congress took upon
itself the government of the district.
both intended that the suits pending in the courts
The State of Maryland and the United States,
of Maryland should be proceeded in until the rights
of the parties should be definitively decided, and
be as valid and conclusive as if the sovereignty
that the judgments and decrees there made should
had not been transferred.

ion that the former is the true view of the | *JOHN P. VAN NESS and William Jones [*17 matter. The original decree of foreclosure and Plaintiffs in Error, sale was final upon the merits of the controversy. The defendants had a right to appeal THE BANK OF THE UNITED STATES, from that decree, as final upon those merits, as soon as it was pronounced, in order to prevent an irreparable mischief to themselves. For, if the sale had been completed under the decree, the title of the purchaser under the decree, would not have been overthrown, or invalidated even by a reversal of the decree; and consequently the title of the defendants to the lands would have been extinguished; and their redress upon the reversal would have been of a different sort from that of a restitution of the land sold. In Ray v. Law, 3 Cranch R. 179, it was held by this court, that a decree of sale of mortgaged premises was a final decree in the sense of the act of Congress, upon which an appeal would lie to the Supreme Court. This decision must have been made upon the general ground that a decree, final upon the merits of the controversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior proceedings. Indeed, the ulterior proceedings are but a mode of executing the original decree, like the award of an execution at law. If this be the true view of the present decree, and the proceedings thereon, then it is plain that this bill of review is not maintainable for two reasons, each of which is equally conclusive. The first is, that no error is shown in the original decree, for the only pretended error is in the sale under the decree. The second is, that this bill of review was not brought within five years after the original decree was rendered in the lifetime of Whiting; and the statute of limitations, having once begun to run, cannot be stopped by any subsequent intervening disabilities.

and deed of the said Marcia."

Congress, by the 13th section of the Act of February 27, 1801, placed judgments and decrees thereafter to be obtained in the State courts of the State of which the District of Columbia had formed a part, on the same footing with judgments and decrees rendered before. State of Maryland, in a cause instituted after ConIf a guardian appointed by the court of the gress had legislated for the District of Columbia, had been ordered, by a decree of the court, to make a deed of lands within the district, and had died, or had refused to make the conveyance as ordered, the court of the district would, on application, have been bound to appoint another person to execute the deed; and would not have been authorized to open again and re-examine the questions which had been decided in the Maryland court. A deed was executed, and acknowledged "W. M. Duncanson, guardian for Marcia Burnes;" and If, then, the original decree was unobjec- acknowledged by the guardian "to be his act and tionable and conclusive; if there has been no deed as guardian aforesaid, and thereby the act This is a good fraud in the subsequent sale, pursuant to that execution and acknowledgment. decree; and if there has been, in a legal sense, The acts of the Assembly of Maryland, prescribno prejudice to any rights of the plaintiffs in ing the mode in which deeds should be acknowl16*] the original decree, or the sale, then, *al-edged for the conveyance of real property, were adopted by Congress in the act assuming juristhough there was no revivor before the sale, diction in the District of Columbia, together with there is no error upon which a bill of review the other laws of Maryland then in force. The acts will lie to entitle the parties to a reversal. We of the Assembly of Maryland relating to the acknowledgment of deeds, do not require that justices do not say whether the Circuit Court might or of the peace, or other officers who have authority might not in its discretion have required a re- to take acknowledgments, shall describe in their vival of the suit before the sale was confirmed, is established by proof that the acknowledgment certificates their official character. Whenever it if the fact of the death of Whiting had been was made before persons authorized to take it, it distinctly brought to its knowledge. But we must be presumed to have been taken by them in do mean to say that the nonrevival was not their official capacity. matter of error, for which the proceeding on the sale under the original decree (for that is all which the present bill seeks to redress) can or ought to be reversed.

The decree of the Circuit Court, dismissing the bill, is therefore affirmed with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.

The soundest reasons of justice and policy seem to demand that every reasonable intendment should be made to support the titles of bona fide purchas. ers of real property.

In the declaration in ejectment, various demises were laid, and the verdict of this jury, and the Judgment of the Circuit Court, were entered on one of the demises only; and it was contended that the court ought not to have entered a judgment on the issue found for the plaintiff, but should have awarded a venire de novo; and that this irregularity might be taken advantage of upon a writ of error. Held, that if this objection had been made in the Circuit Court on a motion in arrest of judgment, the plaintiff would have been permitted to strike out all the demises for the declaration but that on which the verdict was given. The omission to strike out these demises was only, therefore, an omission of form; and the Act of Congress of 1789 ch. 20, sec. 32, expressly provides that no judgment

shall be reversed for any defect or want of form; but that the courts of the United States shall pro