*.Present*— Chancellors Mathews, Rctiedge and Host.

#### William Washington and wife, and R. Beresford, v*s.*Benjamin Huger.

JUNE, 1794.

CASE XCIT.

MEO REE ROOK, p.144.

A fattier who was tenant by courtesy sold his son’s land in fee simple and received the price. To secure the purchaser he "ave h.hn a bond of indemnity and a mortgage of other Lind of his own. The son claims his land; the heirs of the purchaser file a hill to have the benefit of the indemnity bond and sc-curity. The father’s estate being insolvent, a judgment creditor sold the land, but subject to the said mortgage, Sc bought it in. The son being willing to accept an indemnity for his land, and make titles to the purchaser, the court decreed that he should be paid out of the sales of the mortgaged land the amount of the price received byhis father, and interest.

On the marriage of the defendant’s father, major Benjamin Huger, to defendant’s mother, he became possessed in her right of a plantation on the Horse Shoe? and at her death he held the.same as tenant by courtesy? ■and for her children in fee. In 1772 he sold said land in fee simple to Charles Elliott; and to secure him an indemnity, in case his title should be questioned and destroyed by his (Hager’s) son, (on whom the land descended) ho gave, bond, in penalty of 52,0Q0i. currency, with condition to pay 26,000Z. on such event, and gave amort-gage of a plantation called Richmond, on Pedee, Major B. Huger died in 1779, (killed in front of the lines of Charleston, opposing the enemy then besieging Charles* ton,) and left his son Benjamin a minor, who attained his age of twenty-one years in 1789. C. Elliott died in 1781, and devised his said plantation at Horse Shoe to In's wife (now Mrs. Bcrcsford) and to his daughter (now Mrs. Washington.) Young Benjamin Huger returned to Carolina from abroad in 1791, and brought his action to recover his land (so sold by his father) in 1792. Whereupon this hill was filed by the complainants, to foreclose the equity of redemption on the mortgage of the Richmond plantation, and that out of the sales of that place so much as the Horse Shoe land had been sold for, to Elliott? should be paid to defendant, with an allowance for the use of the plantation; and that thereupon defendant should execute good titles for the Horse Shoe land to complainants. Major Huger died insolvent, and Hamilton, a creditor of major Huger, (the youngest judgment creditor) liad seized and sold the Richmond place at Pedee, subject, however, expressly, to the claims of the complainants and of defendant — and Hamilton has endeavored to remove the cause by certiorari to the courts of the United States; having been first let in to this court, on petition. *361so protect Ms rights its a creditor. Tiiis court positively refused to obey the certiorari on reasons fully given.*

Mr. B. Huger, the son, having established his right ftt law to the land sold by his father, (under an issue directed by the court) the cause came to a hearing.

Mr. E. Rutledge and general Pinckney, for Mr. 33. Huger, the defendant,

contended that there could not be, any question about the reimbursement of the principal sum, or price of the land sold by the father of the defendant. The father, conscious that he had no legal title to the fee simple, (being only a tenant by the curtesy) gave a mortgage of another tract of laud, his own absolute *362property, to indemnify the purchaser, if ever the *sm*should question the title.. Young Mr. Huger:finding his father’s estate ruined by the war* and he himself charged' with the money spent on his education, does question the title, *and*shews his clear right of inheritance under his moqier^ jje mus£ recoYer. The heirs of the purchaser then file a bill to enforce their mortgage and indemnify themselves. It is of nó consequence to the creditors of buyer B. Huger, Whether the son takes his land, and the mortgagee is indemnified by the sale of Richmond, or that Mr. Huger, the son, consents to give up his land on his. being paid the amount for which it sold. He and the *363mortgagee must be first satisfied. But the interest is disputed: not however on any-good ground. His right to the land accrued the moment his father died, and the tenancy by cürtesy was ended. But he has been kept out of his right by the purchaser, who would not and could not safely deliver him the possession till his right was legally established. Having the right, those who kept him from the enjoyment of it are bound to account to him for the rents and profits. Whoever enters on the estate of a minor must account, as a guardian, for the rents and profits. 1 Atk. 484, Morgan *vs.*Morgan; decided by lord Hardwicke in 1737. Major B. Huger’s creditors stand only in his shoes. He. sold his son’s estate without a title in himself. He, or his estate, would be bound to account, for such sale was a forfeiture of the tenancy hy the curtesy.-See Co. Litt. 251. 2 Bacon, 259. The counsel also quoted Comyn, 244. 2 Vern. 608. 1 Vern. 252. 2 Vesey, 590. 1 Eq. Cas. abr. 280, as to infancy. 2 Vern. 368, as to laches. 3 Atk. 130, as to rents and profits. In cases of account both parties are actors. Eq. Cas. abr. 93, as to surety.

Young Mr. Huger having been obliged to repay all the advances made from his father’s estate for his education, has a most perfect right to insist on all his rights, arid, to require an account for the rents and profits of his plantation whilst it was held by the purchasers: and they have a right to be indemnified out o£ the mortgaged premises, given "expressly to protect them against these claims. Hamilton, the creditor, has no title to favor. He forced the sale of Richmond pending this suit, though the youngest judgment creditor,-and he bought in on speculation: he is therefore in the light of a purchaser with knowledge of thé incumbrance,-and must submit to all its effects. There has been no laches in Mr. Huger. He attained twenty-one in 1789, returned from Europe in 1791, and has made his claims in less time than is allowed to minors to institute suits. He might have been obliged to have gone to the court of law to recover mesne profits; hut the complainants have a right to come here *364to foreclose their mortgage and his rights come in incidentally.

liecree.

For Mr. Hamilton it was contended, by Mr* Read and Mr. Ford, that Elliott knew he was buying a bad title; therefore he and his representatives are entitled to less damages. ay¡(¡ [jUg.er¡> tho son, .coming in on their ground, is entitled to no more. Huger’s claims are for rents and profits, and he should seek his remedy at law;. this court’ cannot give damages. If he had sued .Elliott’s executors for mesne profits, he could only have recovered rents, and not interest, which is much greater. The exequtors had no right to charge him for his education. Huger was of age in 1789, and arrived at home in 1791. There has been laches in claiming his rights. Major Huger, the father, had a life estate in the land; therefore aiy allowance should be made for it.

*

 This cuse of Washington and Beresford *vs.*B. Huger, being dependent in the coifrt of chancery, Air. Hamilton, British consul at Norfolk, anda creditor of the-late major Benj. Huger, who had forced the sale of the Richmond land, pending’ this suit, and had become the purchaser, petitioned the court to be let in to protect his rights; and he was allowed to come in as a party to the proceedings. Afterwards, and before the trial of the case, he obtained a certiorari from the circuit court of the United States to remove the cause front this court to the circuit court of the United States. This writ was served on the court, and after time taken to deliberate, the court refused to obey the certiorari, and gave the following reasons for its determination: — By the court. The suit pending in the court is between citizens. An alien applies by petition to be allowed to come in and defend his interests. This was granted. Since which he has obtained a certiorari to remove the cause up to the circuit court of the United States. A writ of certiorari is a writ issued by a superior to an inferior jurisdiction, commanding the removal of a cause from the latter to the former court. But this is not an inferior court to that whence the mandate issues. No law of the United States declares it inferior, or impeaches its equality- AIL that the judiciary act of congress provides for, is, to give a party defendant, who is not a citizen of the state where the suit is instituted, a right to apply by petition to this court to have the cause removed into the court of the United States. That is the form prescribed, and that excludes other forms not provided by the act. This does not warrant the use of the mandatory form of a certiorari. But it it said that the power given to the courts of the United States to issue “all other necessary writs” includes the use of tiiis writ and warrants it. This is denied.. The act of congress has previously pointed out the mode of proceeding for the removal of a cause from this court to the court of the United States, which has jurisdiction, viz. by filing a petition on entering'the application for the removal of the cause. It could not be intended that the same purpose might be effected by ato-*jdly different process, under a few general and loose words» another *362part of the act. The court acts under the sanction of an oath to obey the laws of the United States as well as thoseof the- state under whose authority the court sits and acts. Hooking to those laws, the Court is of opinion, that the writ of certiorari,’ now presented, is not warranted By the words of the acts of congress, or by any reasonable construction óf them. The court is therefore not bound 'to pay any regard to it — > Nor would the court have obeyed a' writ of certiorari, if it had- been issued by the supreme court of the United States,' to remove the cause thither, because that court has only appellate jurisdiction (sée-22d section of the judiciary act) after final decrees and judgments, in cases determined in the circuit courts, brought there by original process, or removed there from the courts of the several-states, or by appeal from the district courts. And the supreme court has no appellate jurisdiction in cases determinable in the state courts, between citizens- of the same state, except in the case of a titlefo land, where the parties, though citizens of the same state, derive title under grants from different, states.

-The act of congress directs, that where’a suit; is commenced in a state court, by a citizen of that state, against ail alien or a citizen ’of another state, on the defendant’s entering his appeal, filing his petition, and offering security, on the first day of the term,' the state court shall proceed no further in the cause. The present party has not pursued the coarse prescribed by the law, he has not applied by petition, nor ofFeredsecurity — the court therefore will pay no regard to.theunautho-rized course he has pursued, of obtaining a certiorari; but will proceed with the cause under consideration as the laws of the state authorize.

It appears, by *a.*note of chancellor Mathews, on his brief, that in some shape this question was discussed before the federal court,-and. that *“*the federal court on the appeal to them determined that Hamilton, having appeared in this court, by his petition (to be heard) has made his election into what court he would go: and having acknowledged Hie jurisdiction of this court, tliat (the federal court) would itu., fake cognizance of the cause.”

The court afterwards delivered its judgment as follows:

It was contended that the defendant should not be allowed interest for the detention of his land, because he has been guilty of laches in not pursuing his claim earlier. To this the cour,t answered, that, having brought his suit within the. time allowed to minors, he was not guilty of laches. The 2d objection is, that the defendant should not he allowed the sum for which his land sold, with interest thereon; but that he should .be referred to the court of law to ascertain his damages for the.detentioi’i and use of his land. To-this objection (made by a creditor) the court answered, that there was no necessity nor propriety in driving Mr. Benj. Huger, the son, to his action at law for rents and profits, or damages. His father had given a mortgage of Richmond to indemnify complainants’ testator, in case their title was ever ques'*-tioned by his son. The son has-claimed his inheritance, and the complainants have filed their bill to foreclose the mortgage to indemnify themselves. Tho defendant was •willing to accept, out of the sales of the Richmond plantation, repayment of what his land at the Horse Shoe had been actually sold for by his father, with compensation for the use of the land, and then to make good titles to-' *365complainants for the Horse Shoe land. This is a fair and reasonable arrangement. Creditors cannot interfere to prevent its completion. The creditors could stand on nó better ground than major Huger himself as to this land, and the court would have compelled him to pay his son the value of his land improperly sold. Under the bond of indemnity given in this case, with the mortgage of Richmond, the court can and will direct the allowance of legal interest, as the compensation for the use of th© ■land. The bond of indemnity ascertains the sum for which the land was sold by major Huger to Mr. Elliott; and this, with' the interest, is the true compensation. The executors of major Huger have obliged his son Benjamin to repay the money expended, out of his father’s estate, on bis education, with interest, because the estate of his father was insolvent: there is therefore no claim on him to yield any of his rights. Another objection is, that this court cannot assess damages. This is true — but it may allow interest as a compensation, if it be an adequate one.

The next point submitted ivas, that as major Huger lived seven years after the sale to C. Elliott, an allowance should be made for his tenancy by the curtesy; but the court saw7 no ground for this. Major Huger sold the laud for the full value, got ¿11 the money, and had the use of it during his whole life, which was the extent of his tenancy by curtesy. It Avas therefore decreed that the defendant should be paid out of the sales of the Richmond land *37141.*being the amount of the sale of his Horse Shoe land, Avith interest from the death of major Huger, until paid. That Benjamin Huger, tho defendant, account for the rents of the Richmond place, or for so much as he used or cultivated. That Benjamin Huger the defendant, on being paid, as above directed, do make and execute good conveyances to complainants of the Horse Shoe land in fee simple. That the creditor Hamilton, who was let into this case (on his petition) do comply with th© decree out of the sales of the *Richmond place,*of which lie became the purchaser, or that the same be resold íbr the. purpose of raising the money for the defendant!,