US SUPREME COURT DECISIONS

1. A bill in equity is not the proper means to recover possession of land, there being no fraud in the case nor other matter specially the subject of equitable cognizance, and a party cannot by any colorable suggestion of fraud, account &c., use such a bill in place of the common law remedy of ejectment. The court will look at the proofs, and if there be no proof at all of the matters which would make a proper case for equity, it will disregard them and look at the bill simply in its aspect of one to recover land of which the complainant is out of possession.

2. If the bill be clearly one of the sort above spoken of it is the duty of the court sua sponte, and though there be no demurrer, plea, or answer setting it up, to recognize the fact and give to it effect.

In March, 1863, Anderson, alleging himself to be a creditor to the extent of $8,840 of one Cocks, filed a petition in the "Provisional Court of New Orleans" -- a court established by proclamation of President Lincoln during the rebellion (while New Orleans was occupied by the troops of the United States), and of which a full account is given in preceding cases [Footnote 1] -- that Cocks, then absent from the state, chanrobles.com-red

Page 90 U. S. 467

and a certain Hyllested, who the petition alleged was the proper agent of Cocks in the matter of a proceeding like the one embraced by the petition, might be cited to appear, and after proceedings had, be condemned to pay the amount for which Anderson, as already said, alleged himself to be a creditor.

The Provisional Court gave judgment by default for Anderson, and execution having issued, two houses and lots, the property of Cocks, were sold to a certain Izard, to whom possession, which he still had, was delivered by the marshal of the court.

Hereupon -- Anderson having died and administration having been granted on his estate -- the rebellion also being ended and the regular courts of the United States reestablished -- Cocks filed, A.D. 1866, a bill in equity in the court below against Izard, praying that the defendant might be decreed to execute in favor of the complainant a deed for the property on receiving the price paid by the defendant for the same.

The relief was prayed for on the grounds:

1. That the Provisional Court was a nullity and its judgment against Cocks void.

2. That no service of process had been made upon Cocks, that no sufficient service had been made upon Hyllested, the agent of Cocks, and that Hyllested was not such an agent as that valid service could be made upon him.

3. That Izard was guilty of a gross fraud touching the sale of the property by the marshal; that he professed to be the friend of Cocks, and to intend to buy in the property for him; that he thus deterred others from bidding and himself bought the property at a sacrifice; that subsequently he acknowledged to Cocks his fiduciary relation to the property, and expressed a willingness to surrender it, but that finally his cupidity got the better of his integrity and impelled him to deny that Cocks had any right whatever to the property, and that he now claimed it as his own.

The bill tendered back the purchase money paid to Izard with interest. chanrobles.com-red

Page 90 U. S. 468

Izard answered and denied all the material allegations of the bill. He also set up that he had mortgaged the property to Lewis; that it had been seized and sold under that mortgage; that Lewis became the purchaser, and that his, Izard's, entire title had thus become divested out of him and vested in Lewis.

Lewis also answered, setting up the same facts as to his title as had been stated by Cocks and making the same denials as to the averments of the bill. He was accordingly substituted as defendant.

On the hearing, the great weight of evidence appeared to show that the fraud alleged against Izard had not been committed by him.

The circuit court, however, decreed in favor of the complainant, and Lewis took this appeal. chanrobles.com-red

Page 90 U. S. 469