# Whiting v. Bank of the United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
38 U.S. 6
Whiting v. Bank of the United States
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 five acre lot, No. 9, in Lousiville, 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 endorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes and contracts which Breckenridge should thereafter make, execute, accept, or endorse, 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 security for the due payment thereof, Johnson and his mother, Enfield Johnson, Breckenridge, and Whiting, on the same day executed a mortgage of the five acre lot and slip of land above mentioned, to the Bank of the United States, reciting, among other things, the foregoing arrangement.
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 remaining unpaid, a bill for a foreclosure and sale was brought 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 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 price when the sale took place.
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.
Such are the material facts and statements in the case, and upon them, so far at least as the present bill of review is concerned, there is no controversy between the parties. The prayer of the bill is, that the proceedings may be revived, (as the word stands on the record, probably by mistake, for reviewed;) and that the decrees and sale may be set aside, that the plaintiffs may be permitted to redeem; and for other relief.
Some suggestions have been made as to the nature and character of the present bill-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 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 pleadings, 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.
Having made these explanations, which seemed proper with reference to the arguments pressed at the bar, we may 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 disposed of. And first, as to the supposed error in not making Breckenridge a party to the original bill. Assuming that he was a proper party to that bill, still it is to be considered, that it was an objection which ought properly to have been taken by the present parties at the original hearing, or upon the appeal (if any) before the appellate Court. And upon a bill of review it cannot properly be relied on as matter of error, unless it can be shown that the nonjoinder has operated as an injury or mischief to the rights of the present 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.
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 sale; 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, 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 favour, 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 opinion that the former is the true view of the matter. The original decree of foreclosure and sale was final upon the merits of the controversy. The defendants had a right to appeal 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 vs. 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.
If, then, the original decree was unobjectionable and conclusive; if there has been no fraud in the subsequent sale, pursuant to that decree; and if there has been, in a legal sense, no prejudice to any rights of the plaintiffs in the original decree, or the sale, then, although there was no revivor before the sale, there is no error upon which a bill of review will lie to entitle the parties to a reversal. We do not say whether the Circuit Court might or might not in its discretion have required a revival of the suit before the sale was confirmed, if the fact of the death of Whiting had been distinctly brought to its knowledge. But we do mean to say, that the nonrevival was not 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 Circuit 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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