SHAW v. SHAW et al., 21 F. Cas. 1199

CRANCH, Chief Judge, after stating the case, delivered the opinion of the court (THRUSTON, Circuit Judge, absent),, as follows: 1. The first ground of demurrer suggested by these defendants is, that there is a suit, depending on the common-law side of this court, in which the complainant may have the relief which she seeks here. But this, 1 apprehend, is a mistake. The court, in that cause, sits as a county court of common law, exercising a

summary jurisdiction given by a statute which gives no power to grant the relief sought by this bill, and which this court can only give when sitting as a court of equity. 2. The second ground of demurrer is, that as the sale was not ratified, it was inchoate, and, therefore, Drury and Gannon were not liable for the loss. But where, according to the terms of the sale, thp purchaser agrees to be liable for the loss if he should fail to comply with the terms of the sale according to the contract, and he does so fail, and thereby prevents the ratification of the sale, he becomes liable without ratification. 3.

The third ground of demurrer is, that the condition for resale, in case of non-eompliance with the terms of sale, is void because the court had not prescribed any such condition; and the commissioners could not add any thing to the order of the court. But by Act 1786, c. 45, § 8, the sale is to be made under the direction of the commissioners; and by Act 1797, c. 114, § 6, it is to be made agreeably to the order of the court. If the terms prescribed by the commissioners are not inconsistent with the order of the court, they are valid, and form part of the contract of sale.

The condition of resale at the risk of the first purchaser, was not inconsistent with the order of the court in that case, and, therefore, was not void. 4. The fourth ground of demurrer is, that Mrs. Drury's share cannot be prejudiced by the act or neglect of her husband. This demurrer is to that part of the bill which seeks to render her share liable for the loss occasioned by her husband’s not complying with the terms of sale. It seems to me that the same equity which will protect the complainant’s share from the debts of her husband, should protect Mrs.

Drury’s from the consequences of the acts or negligence of hers. I think, therefore, that the demurrer must be sustained as to so much of the bill as seeks to charge the share of Mrs. Drury. 5. The plea that Michael Garmon assigned his share to James Gettys before the commencement of this suit, is no answer to the complainant’s equity. The assignee must take it cum onere. The assignment was made after Gannon’s default, by which the complainant’s equity accrued. I think the plea should be overruled. 6. The demurrer of the commissioners is only to so much of the bill as seeks relief against them.

The bill seeks no relief against them, except an injunction to stay the money and bonds in their hands until the further order of the court. But they have the funds and must account for them. This demurrer, therefore, must be overruled, and they should answer to the amount of money and bonds in their hands, in case the court should order the money to be invested in securities for the benefit of the married women. I think the demurrer, to so much of the bill as seeks to have the complainant’s share set apart and laid out in productive securities for her separate use, must be overruled.

MORSBLL, Circuit Judge, concurred. The cause was afterwards set for final hearing, and the court decreed according to the above opinion.