[Swayze and Wife v. Burke et al.]

in the undisturbed possession of the property, enjoying the rents and profits; and then received a conveyance of the land from Ross, on the payment of the judgment, and receipting to the sheriff for the balance of the purchase money. And, prior to this time, by his letters, he informs Mrs. Swayze, who lived in Mississippi, and still resides there, that the property left by his father would all be consumed in the payment of debts.

In deciding the question of law raised by the exception, it may not be proper for this Court to say whether these facts do not show fraud in the administrator. The facts were properly before the jury, and it was for them to determine the question of fraud. But, may Ormsby and his representatives hold the land under their deed, unless it shall be shown that Ross participated in the fraud?

A bona fide purchaser, without notice, is not affected by the fraud of his grantor; and it is admitted that a conveyance by such pùrchaser, to a person who may have knowledge of the fraud, would be valid. But, the purchase and conveyance of Ross, cannot be considered as coming within this rule.

In the first plače, Ross did not purchase with the intention of holding the property. This was declared publicly at the sale; and some time before it took place, the same determination was made known by him to the administrator. And, in the second place, it appears the purchase was never perfected by Ross, He received the sheriff's deed, but he paid no part of the consideration. In this state the matter remained four years; and until the administrator paid the judgment, and receipted to the sheriff for the residue of the purchase money. On this payment, he received a deed from Ross; and then he caused the sheriff's deed to be placed on record.

In making the purchase, Ross seems to have had no design to aid the administrator in the perpetration of a fraud, if such were his intention: or to defeat or embarrass the claims of the heirs of John Ormsby, sen. By the proceeding, he was desirous of securing the debt placed in his hands for collection; and, for the payment of which, he felt himself personally responsible. The judgment, and the sale of the land, secured the desired object. It might have been secured by the judgment only.

The purchase, at the sheriff's sale, was not made by Ross on his own account, or for the benefit of the plaintiffs in the judgment. Haying fixed a lien on the land by the judgment and sale, he did not desire to complete his purchase by the payment of the money.

[Swayze and Wife v. Burke et al.]

And, it is clear that a purchaser at sheriff's sale, cannot protect himself against a prior claim, of which he had no notice; or be held a bona fide purchaser, unless he shall have paid the money.

Had the administrator, under the circumstances of this case, become the purchaser at the sheriff's sale, could he have held the land as a bona fide purchasér? His omissions of duty, in failing to account for any assets which may have come into his possession, and his neglect to apply to the orphans' court, for authority to sell a part of the real estate to pay the debt, connected with the judgment and the proceedings under it; are facts from which a jury might, in the exercise of their judgment, have inferred fraud.

Had the administrator fraudulently furnished an agent with money, and employed him to purchase at the sheriff's sale, could a title thus acquired be held valid against the heirs of John Ormsby, sen. though the deed might have been made to the agent? The agent may be supposed to have been made the innocent instrument of fraud, by the administrator; and whether the title apparently remained in the agent, or had been conveyed to the administrator, could not the fraud be inquired into at law?

There may not have been, in terms, an agreement between Ross and the administrator, that the purchase should be made at the sheriff's sale, by the former, as agent of the latter. But, before the sale, the administrator was assured by Ross, that he would not purchase to hold the land; and his high character was a sufficient guarantee on the subject: and may not this conduce somewhat to show to a jury why the eighteen lots, and the thirty-five acres adjoining, were sold on the execution, when the sale of two or three of the lots would, probably, have satisfied the judgment? The money was paid by the administrator.

In making the purchase, Ross seems, in effect, to have acted as the agent of the administrator; and it was proper for the jury to inquire whether the transaction was not fraudulent. If the administrator suffered the land to be sold, through the agency of Ross, with the view of securing the title to himself, to the exclusion of the other heirs of his father, the proceeding was fraudulent and void. And, as Ross could not be considered a bona fide purchaser, against the legal and equitable right of the plaintiffs, he not having paid the purchase money; the deed which he executed to Ormsby is not a bona fide conveyance. Had the plaintiffs brought their action against Ross, he could not have defended himself, under the sheriff's deed; VOL. XII.-D

[Swayze and Wife v. Burke et al.]

without showing the payment of the consideration. Nor is this deed a good defence against the right of the plaintiffs, under the circumstances of the case, when set up by Oliver Ormsby or his representatives. To the objection already stated to the title of Ross, may be superadded all the circumstances going to show fraud in the administrator; and of which the jury are the proper judges.

We think, therefore, that the judge erred in charging the jury that the deed to Ormsby was valid, unless they should find that Ross participated in the fraud; and, on this ground, the judgment of the court below is reversed, and the cause remanded for further proceedings.

This cause came on to be heard, on the transcript of the record from the district court of the United States, for the western district of Pennsylvania; and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the district court be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said district court, with instructions to award a venire facias de novo.

NATHANIEL S. BENTON, DISTRICT ATTORNEY OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK V. MELANCTHON T. WOOLSEY, THE BANK OF UTICA ET AL.

The district attorney of the United States filed an information in his own name, in behalf of the United States, in the district court, for the northern district of New York, to enforce a mortgage given to the United States, by Woolsey, one of the defendants. This form of proceeding has been for a long time used, without objection, in the courts of the United States, in New York; and was doubtless borrowed from the form used in analogous cases, in the courts of the state of New York, where the state itself was the plaintiff in the suit. The United States may be considered as the real party, although, in form, it is the information and complaint of the district attorney.

It is certainly desirable that the practice should be uniform in the courts of the United States; and that, in all suits where the United States are the real plaintiffs, the proceeding should be in their name; unless it is otherwise ordered by act of congress.

APPEAL from the district court of the United States for the northern district of New York.

The district attorney of the United States for the northern district, filed in the district court of the northern district, an information on behalf of the United States, for the purpose of foreclosing a mortgage executed by Melancthon T. Woolsey to the United States, in July, 1825, as a security for the payment of a debt due by him to the United States, in one year after its date. The mortgage comprehended land in the county of Jefferson, and in the county of St. Lawrence, New York; and it was recorded in Jefferson county, on the 26th day of November, 1830, and in the county of St. Lawrence, on the 10th of June, 1831.

The Bank of Utica had obtained a judgment against Melancthon T. Woolsey, in the supreme court of New York, on the 17th of October, 1816, for one thousand six hundred dollars, which judgment was docketed on the 24th of November, 1817. No execution was issued on this judgment until it was revived by a scire facias, on the 9th July, 1828. A fieri facias was then issued on the judgment, and the lands mortgaged to the United States were sold to satisfy the debt, and were purchased by the Bank of Utica; to whom they were conveyed by the sheriff on the 3d May, 1830. The lands in

[Benton v. Woolsey et al.]

St. Lawrence county were sold by the sheriff, January 30, 1829, and conveyed to the Bank of Utica, on the 15th May, 1830, having been purchased by the bank.

By the law of New York, the judgments in favour of the Bank of Utica, ceased to be a lien on the lands of Woolsey, after ten years, against bona fide purchasers and subsequent incumbrances; and the district attorney, on behalf of the United States, claimed the operation of the mortgage to the United States, so as to exclude the claim of the bank, under the judgment upon which the land was sold, and purchased by the bank to satisfy their debt. No money was paid by the bank, at the time of the purchase, except the expenses attending the proceedings against the land; but the bank claimed to hold the land as a bona fide purchaser, the property having been bought to satisfy the debt due on the judgment, and without notice of the mortgage to the United States; it not having been put on rec‹ rd until after the proceedings under the judgment.

The district court gave a decree in favour of the defendants, and the plaintiff appealed to this Court.

The questions arising on this case were argued at large, in printed arguments, by Mr. Butler, the attorney general, for the United States; and by Mr. Beardsley, for the defendants.

The judgment of the district court was affirmed, by a divided Court; and no opinion was given on any of the questions raised and argued in the cause; except upon a question of jurisdiction. Mr. Justice Thompson did not sit in the cause, being connected with one of the parties to it.

The Court intimated a doubt of their jurisdiction in the case, as the district attorney had instituted the suit in his own name.

Upon this question Mr. Butler, the attorney general, said: That the bill represents a case, in which the United States are exclusively the parties complainants; and the appeal is taken by the district attorney, as prosecuting for the United States. The United States are the only parties, and the district attorney has no interest in the cause. The Court will not look, particularly, at forms, when the substance of the case is manifestly within its jurisdiction.

The judiciary act gives jurisdiction to the courts of the United States, in all cases in which the United States are parties. It is then