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is constructed. In pursuance of the scheme by which a city with streets, lots, and squares was laid out in this land, he conveyed it in trust to Beall and Gantt. They were to lay it out into streets, squares, and lots. When this was done, the title in fee of the streets, as well as of such squares as were to be reserved for public uses, was to vest in the United States. Of all this property, after that was done, there was to be a fair and equal division between Young and the government, and Young's part was to be conveyed to him, and the other half to commissioners to be named by the president. The riparian rights of land-owners on the Potomac river were understood at that time as well or perhaps better than they are now, and the value attached then, and especially to the right to construct wharves, is shown clearly by the record, and by the act of the legislature of Maryland of December 19, 1791, cited in the beginning of the court's opinion. It therefore could not have escaped attention if the entire water way of the river, and the right of approach to it, and use of it in regard to wharves and landingplaces, was vested exclusively in the United States, that no equal division was made of this important right, unless it was by the right attached to each lot which, but for Water street would be bounded by the river. No equivalent is given to Young for this valuable right, on the supposition that it all vested in the United States; no epxress words are used conveying it to the United States or dedicating it to the public. It cannot be successfully maintained that the right attaches as appurtenant to the street. The uses of a street, and of a wharf are entirely different, and while a dedication of a street to public use may not be inconsistent with the use of a part of it for a landing-place, it cannot be said to have as appurtenant to it a right to build a wharf into the river. If such a street had a definite width, it must happen that there would, by reason of the irregular curvature of the river, be detached pieces of land between it and the water. To whom did this land belong, unless to the lot which would embrace it if its lines were extended to the water? And if the lot did not embrace it, what equal division of this valuable land has ever been made with Mr. Young? As it was the duty of the trustees to divide the whole land, it will be presumed that they did it, and that this was their mode of doing it.

The cases of Doane v. Broad Street Ass'n, 6 Mass. 332, and Hathaway v. Wilson, 123 Mass. 359, are directly in point. In the former case, a partition was made, under which the parties claimed, and it was insisted that certain flats, which were the subject of the contest, did not pass as appurtenant to a wharf allotted to one of the parties, because both the wharf and the flats were land, and land cannot pass as appurtenant to land. But the court said that though the flats were not specifically mentioned, yet the duty of the commissioners to partition them, and their relation to the wharf, which could not be used without passing over them, led to the fair inference that on the partition they were intended to pass as part of the wharf property

2. This view is confirmed by the language of the commissioners, we made the division with Young, in the certificate which they gave him This was not in form, a regular deed of conveyance, but is clearly intended to define the square or lots which fell to him in the division, and to remit him for his ownership to his original title, and for the nature of that ownership to the surrounding circumstances. Take square No. 472, one of those now in controversy, the certificate says that "the whole of said square shall remain to the said Notley Young, agreeably to the deed of trust concerning lands in the said city." Here is a plain remission to his original title and right, which, but for Water street, must include riparian rights also. And though this certificate is accompanied by a plat which shows Water street as lying between the square and the river, we are not able to see that this cir cumstance excludes the original riparian rights of Young, in the absence of any evidence that those rights were allotted to the government in the pa

tition, or that Young anywhere received an equivalent for those rights unless he obtained it by this statement, that the "square shall remain to Young agreeably to the deed of trust made by him." No such deed was executed by the commissioners to purchasers of lots from the United States.

This view of the matter was taken by Judge CRANCH in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838, and though the case is not fully argued by the court, the eminent ability of the judge who decided it, and his well-known accuracy as a reporter, and his knowledge of the local laws and customs of the city of Washington, entitle it to very great weight, as what he intended to decide is quite clear.

The careful and elaborate letter of the commissioners to the president, of July 24, 1795, which states that "no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the waters;" but "with respect to the private property on the water" lays down regulations by which "proprietors of property lying on the water" are to be permitted to build wharves, and to erect warehouses thereon, leaving spaces at certain distances for cross streets, evidently uses the words "public appropriations" as distinct from "streets," and as designating the lots and squares set apart, with the president's approval, for the public use; and, by prohibiting the erection of private wharves at the end of "the streets at right angles with the water," and omitting to mention the shores by the side of other streets, clearly implies that such shores are not covered by the prohibition, but are to be treated as included in "the private property on the water.”

The lot set off to the United States, and afterwards sold to Morris and Greenleaf, is within the same principle.

The declaration in the preliminary contract of 1793, between the commissioners and them, that the latter were entitled "of course to the privileges of wharfing annexed" to these lots, while not evidence of a contract to control the terms of the subsequent more formal instrument, is of weight as showing what at that time was understood to be included in a description of the lots. When to this we add that no act of Congress has ever asserted ownership of these wharves or landing places, or the rights of a riparian owner, while they have conferred on the authorities of the district the power of regulating wharves, private and public, we are forced to the conclusion that these rights are left with the owner of the squares certified to Notley Young in the division with the United States.

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APPEAL TO SUPREME COURT SUPERSEDEAS-REV. ST. 1007.

Where a court in session, and acting judicially, allows an appeal which is entered of record without taking a bond within 60 days after rendering a decree, a justice or judge of the appellate court may, in his discretion, grant a supersedeas after the expiration of that time, under the provisions of section 1007 of the Revised Statutes.

Notice to Vacate Supersedeas and to Dismiss Appeal.

T. T. Crittenden and M. T. Morris, for appellant.

A. G. Riddle, for appellee.

WAITE, C. J. This is an appeal from a decree of the supreme court of the District of Columbia, rendered on the thirtieth of October, 1882. At the foot

of the decree as entered is the following: "And from this decree the complainant. Samuel A. Peugh, prays an appeal to the supreme court of the United States, which is allowed." No bond of any kind was executed under this allowance until the tenth of May, 1883, when Mr. Justice MILLER granted a supersedeas and took the necessary security for that purpose. He at the same time signed a citation. On the same day another citation was signed by the chief justice of the supreme court of the district. Davis, the appellee, now moves to vacate the supersedeas, because no appeal was perfected within 60 days after the rendition of the decree appealed from, and also to dismiss the appeal.

In Kitchen v. Randolph, 93 U. S. 92, it was held that "the service of a writ of error or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is an indispensable prerequisite to a supersedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay on the judgment or decree, if this has not been done." In referring to this case at the same term in Sage v. Central R. Co. Id. 416, it was spoken of as holding that, unless the writ of error was sued out and served, or the appeal taken within the 60 days, no supersedeas could be allowed. It thus appears that the words "perfected" and "taken" were used interchangeably, and were evidently intended to mean the same thing as "allowed." The rule established by these cases, when accurately stated, is therefore no more than to give a justice or judge of the appellate court authority to grant a supersedeas after the expiration of the 60 days, and a writ of error must have been issued and served, or an appeal allowed within that time.

In Edmonson v. Bloomshire, 7 Wall. 307, it was decided that a prayer for an appeal made in open court, and an order allowing it, constituted a valid appeal. Under such circumstances the allowance becomes the judicial act of the court in session, and the bond is not essential to the taking of the appeal, though it may be to its prosecution. As was said in the case last cited: "It could have been given here, and cases have been brought here where no bond was approved by the court below, and the court has permitted the appellant to give bond in this court." Anson v. Blue Ridge R. R. 23 How. 1; Brobst v. Brobst, 2 Wall. 96; Seymour v. Freer, 5 Wall. 822, are cases of that character. And in The Dos Hermanos, 10 Wheat. 306, where an appeal was prayed within the five years' limitation, and was actually allowed by the court within that period, although the bond was not given until afterwards, Chief Justice MARSHALL said: "It is true the security required by law was not given until after the lapse of the five years; and under such circumstances the court might have disallowed the appeal and refused the security. But as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal.

We decided in Railroad Co. v. Blair, 100 U. S. 662, that if an appeal was allowed by the court during the term at which the decree was entered, and the bond was not executed until after the term, a citation was necessary, but that related only to procedure under the appeal and is not in conflict with the former decisions as to the effect of an allowance of an appeal by the judicial act of the court in session.

In view of these rulings we hold that if a court in session, and acting judicially, allows an appeal, which is entered of record without taking a bond, within 60 days after rendering a decree, a justice or judge of the appellate court may, in his discretion, grant a supersedeas after the expiration of that time under the provisions of section 1007 of the Revised Statutes. Nothing here said is to be construed as affecting appeals other than such as are allowed by the court acting judicially and in term time.

The motion is denied.

(110 U. S. 317)

CORKER v. JONES, Ex'r, etc.

(February 4, 1884.)

1. GUARDIAN AND WARD-JURISDICTION OF EQUITY-GUARDIAN Ad Litem. Although the court of ordinary in Georgia has generally exclusive jurisdiction of the property of infants, a purchase of land by a guardian for his ward on credit. is a proper subject for the cognizance of a court of equity.

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A decree against an infant can be impeached for the lack of a guardian ad litem only by bill of review or by appeal.

3. SAME RIGHT OF GUARDIAN TO ACQUIRE ADVERSE INTEREST.

In judicial proceedings, where a guardian and ward stand at arm's length, the guardian is not precluded from acquiring by decree of court an interest adverse to his ward, provided the proceedings are untainted by fraud.

Appeal from the Circuit Court of the United States for the Southern District of Georgia.

Henry B. Tompkins, for appellant.

Randall Hagner, for appellees.

MATTHEWS, J. Malcolm D. Jones, of whom Francis A. Jones, the appellee, is executor, in his life-time was executor of the last will of Drury Corker, deceased, and testamentary guardian of the person and estate of the testator's son, Ernest D. Corker, the appellant, one of the devisees, then a minor, who arrived at age since filing the present bill. While acting as such, on July 24, 1863, Malcolm D. Jones, as guardian, purchased a tract of land known as the Gilstrop and Watson place, part of the estate of Drury Corker, from the trustees of Mrs. S. Hart, a daughter of the testator, to whom he had devised it, with power to sell. The consideration paid was $15,600 in confederate money, which was advanced by Malcolm D. Jones from his own funds. The conveyance was to him as guardian of the appellant, the latter being charged in account by the guardian with the amount of the advance. In 1867, while the appellant was still an infant about 11 years of age, and living with his mother, a bill in equity was filed in the superior court of Burke county, where they resided, a court of general jurisdiction at law and in equity, in the name of the appellant, suing by his mother and next friend, to which Malcolm D. Jones was made defendant, praying for a rescission of the transaction as between the guardian and ward, so that the former should take the land, and the latter be relieved from the payment of the consideration. The pleadings in that case are not exhibited in the present record, as it is stated, because they have been lost or destroyed; but the matter was submitted to a jury, who found that "it is to the interest of Ernest D. Corker, the minor, under his circumstances, that said purchase be rescinded, and deed be cancelled and set aside as to said Ernest D., leaving it to stand as against the makers and in favor of said Malcolm D. individually; and that, if necessary, said Ernest D. make, and deliver a proper conveyance of said land to said Malcolm D." And upon this verdict, on January 1, 1868, it was by the court ordered and decreed "that said deed be, and is hereby, set aside and cancelled as to said Ernest D. only, and that it stand good against the makers thereof, and for the use and benefit of said Malcolm D. individually, and said Ernest D. make any, all necessary, and proper conveyances of the land referred to to said Malcolm D.; that said Malcolm D. also pay one-half of the costs of this proceeding, and said Ernest D. the other half thereof." Thereafter Malcom D. Jones went into possession of the land, claiming title thereto in his own right, and since his death his executor, Francis A. Jones, one of the appellees, has sold the same in parcels under judicial proceedings in the superior court of Burke county, as the property of Malcolm D. Jones, deceased, to the several

other appellees. These purchasers claim to be protected as such against any equities of the appellant, but the latter insists that they had not acquired the legal title, nor fully paid the purchase money at the time he filed his bill, and consequently are not innocent purchasers.

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Without reference to that question, however, the appellant claims that he has the legal estate in the land in controversy by virtue of the deed of his guardian from the trustees of his sister, and that it was not divested by the decree of the superior court of Burke county of January 1, 1868, for the reason that that court had no jurisdiction in the case, and the proceedings and decree therein were coram non judice and void. This is urged on the ground that the court of ordinary in Georgia has jurisdiction, exclusive of the superior court, to deal with the property of minors, and various provisions of the Code of that state are cited in support of that proposition. Among others, section 1837 provides that "the guardian cannot borrow money and bind his ward therefor, nor can he, by any contract other than those specially allowed by law, bind his ward's property or create any lien thereon." It would be difficult under this section, or any others to be found relating to the subject, to discover any authority for the purchase by Jones, the guardian, of the real estate in controversy for his ward, on credit, advancing the money as a loan for that purpose; and the question whether it was a transaction that should stand or be canceled, as between guardian and ward, was not one arising in the ordinary course of administration for settlement as a mere matter of account in the court of ordinary, but, as we think, was one more appropriately dealt with in the more formal procedure of a court of general jurisdiction with equity powers. The question is not one relating to the sale or disposition of any part of the ward's estate which had come under the control of the guardian, but was whether, under the circumstances, the purchase made by the guardian should be treated as made for the benefit of his ward, or whether its burdens and risk should be borne by him individually. It was peculiarly a case for cognizance in equity, and the superior court of Burke county, we think, had jurisdiction to make the decree directing the title to remain in Malcolm D. Jones for his own use.

It is further urged, however, that the decree is voidable, because it was taken against an infant, without the protection of a guardian ad litem. If the infant had been defendant the objection could only be taken on appeal, or by bill of review, and not collaterally; but the infant was plaintiff and sued by his next friend, which was proper, and there is no more ground for saying that the decree was against the infant than in his favor. He was relieved from the burden of the purchase, which was the object of the suit.

But it is also claimed that the relation of the parties was such that the guardian could not acquire an interest adverse to his ward, and that the attempt to do so will convert him into a trustee by construction. But the transaction was judicial, the parties standing at arm's length as avowed litigants: the plaintiff being represented by his mother, appearing on the record with him as his next friend, and the court deciding between them. That judgment must be conclusive, unless it can be impeached for unfairness and fraud. This charge is in fact made, it being alleged, that the suit was collusive. The only proof of this is, that the mother of the infant agreed with the guardian that it was best to submit the question of the purchase to the decision of the court. Their co-operation in this is not sufficient, in our opinion, to raise the suspicion of fraud. Outside of this circumstance there is no proof.

It is finally alleged that, upon a settlement of accounts between the guar dian and ward, a larger amount should have been found due to the latter than was awarded by the court below. But the decree on that point is in conformity with the evidence.

We find no error in the record and the decree is affirmed.

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