his right to hold the pledge until the debt is
paid; it does not authorize the debtor to claim
the pledge without paying the debt. The cred-
itor is in possession. If the statute runs against
anyone (so far as relates to the pledge), it runs
against the pledgeor. The creditor, by opera-
tion of the statute, may lose his right of action
for a personal judgment against the debtor; but
he has a right to hold on to the pledge until the
debt is paid. It is the debtor's concern to see
that he does not lose his right to redeem the
pledge.

said plantation, as assets of said partnership debt, the Statute of Limitations does not affect for the payment of said partnership debts to her said ancestor, they pray that an accounting may be had between them and the said Lucy C. Freeman, in connection with her claim as propounded in and by her bill of complaint, upon such principles and in such manner as this honorable court shall adjudge to be fair and equitable; or, if mistaken in the relief sought, then for such other, further and general relief and decree as to equity belongs and your orators can require. In the meantime your orators, hereby confessing they are without valid title to the undivided half interest of said David I. Field in said plantation, but claiming and insisting that in no event can they be held to account to said defendants in two separate proceedings concerning the rents of said plantation, and that the whole controversy between them and said defendants, their agents and attorneys, be enjoined, inhibited, and restrained from further prosecuting their [105] said suits in this honorable court against your orators; and on final hearing, that said injunction be perpetuated."

This bill was dismissed by the court below as upon demurrer. Other proceedings were had; but, in view of the course which was finally taken in the cause, it is not necessary to notice them. The ground on which the bill was dismissed was lapse of time. The sale of David I. Field's interest by order of the probate court in 1869 was held to be void. This was also so held in the action of ejectment brought by David I. Field, Junior, the reason assigned being that the probate court had no jurisdiction of accounts between partners, and that the administrator gave no bond as required by law. On writ of error from this court in that case the judgment of the circuit court was affirmed. See Clay & Wife v. Field, 115 U. S. 260 [Bk. 29, L. ed. 375]. But that action affected only the legal title; and the question still remains, unless precluded by lapse of time, whether, in equity, the lands, being partnership property, are not liable to the debts of the partnership prior to any claim of the widow and heir of D. I. Field.

As before said, the court below placed its decree upon the lapse of time, holding that as the partnership was dissolved by the death of David I. Field, Sr., in September, 1859, a suit for an account of the partnership transactions could not be brought in 1882, after a lapse of 23 years; or, deducting 5 years for the continuance of the war, after a lapse of 18 years.

If this were simply a bill to enforce the settlement of an account, this reasoning would be very apposite. But it is not. It is a bill to prevent a dispossession of property until the equitable charges against that property are adjusted and settled. Of course the adjustment and settlement of those charges involves an account of the partnership transactions. But that account was no less claimable, at any time, by the estate of D. I. Field than it was by that of C. I. Field. The primary object of the present bill, though it involves a taking of the account, is to prevent the complainants from being dispossessed of the property until their claim against [106] it has been discharged.

If a pledgee holds property as security for a

So, a mortgagee in possession, if satisfied with the mortgage security, need have no anxiety about the Statute of Limitations. That is the concern of the mortgagor. Unless he redeems in proper time, he will lose his equity of redemption.

The same rule applies in the case of partnerhip property in the possession of the surviving partner; he has a right to hold it until the debts of the firm are paid, and if the firm is indebted to him, he has a right to hold it until he is paid. It is true, it is his duty to dispose of the partnership property, and settle the partnership debts. But that is a duty to which he may, at any time, be compelled by the representatives of the deceased partner and although his neglect or delay in winding up the concern may expose him to the animadversion of the court, and to the vigorous exercise of its power to compel him to do his duty, it will not relieve the partnership assets in his hands from the lien of the partnership debts. Being in possession of those assets, he is not affected by the Statute of Limitations. If the statute runs against anybody, it runs against the representatives of the deceased partner in relation to their right to call him to account. The proposition that the partnership property can be taken out of the surviving partner's hands and distributed amongst the several partners and their representatives, without a settlement and payment of the partnership debts, including any balance due the surviving partner himself, is a proposition that equity will not for a moment

entertain.

The other side, it is true, have prevailed at law; but they cannot prevail in equity. It would be strange indeed, if the principal capitalist of the firm, who advanced much the largest amount of money in the concern, should be brought in debt to his copartner. The thing is unreasonable on its face; and it cannot stand the test of a juridical examination.

The reason why the matter lay so long without any movement being made on either side (except that of Lucy C. Freeman for her dower) is probably this: On the side of C. I. Field and his representatives it was supposed that the decree of the probate court, declaring the insolv ency of D. I. Field and ordering a sale of his property to pay his debts, and the sale made in pursuance thereof, ended all further inquiry or controversy. On the side of D. I. Field's family, it is probable that the same idea prevailed; or, if not, that the land was not supposed equal in value to the lien upon it. The infancy of г. I. Field, Jr., would hardly have deterred his mother and guardian from prosecuting his interest if they had thought it worth prosecuting.

[107]

The idea that David, Junior, could get the land | made by order of the probate court having been
without paying the debt on account of lapse of
time is probably of recent growth.

adjudged void, its incidents and consequences
are void-such as the receipt given for the bal-
ance of the $6,000 purchase money, and the
indorsement thereof on the notes. The latter
will stand for their full amount, with interest,
less the indorsement of $243.50 made by C. I.
Field.

It results from these views that the lien for
partnership debts takes precedence, not only of
the interest of David I. Field, Jr., as heir at
law of D. I. Field, but of Lucy C. Freeman's
right of dower. As, however, dower was
actually assigned to her nearly three years be-
fore the filing of the present bill, such assign-
ment should not now be disturbed; but no fur-
ther exaction for detention of dower should be
enforced. We think, therefore, that upon the
allegations of the bill, the complainants are en-
titled to relief, and that the demurrers should
have been overruled.

But whatever the reasons for inaction may have been, C. I. Field and his representatives and heir at law have always, since the war, remained in possession; and the heir cannot, in equity, be ousted of that possession without a settlement of the accounts. It is very doubtful, indeed, whether without this possession even a technical plea of the Statute of Limitations, or lapse of time analogous thereto, could be sustained. After the death of D. I. Field, his administrator, E. H. Field, and C. I. Field, by mutual consent, continued the partnership until the breaking out of the war. Of course, neither party could have claimed that the statute was running during that period, under those circumstances. It did not run during the war. It did not commence to run, therefore, until April, 1866. C. I. Field died fifteen months afterwards, in July, 1867, and for several of those months he had been administrator of his brother's estate, no one ing such for the remainder of the time. Of course he could not sue himself. Then Brutus J. Clay, Sr., was appointed administrator of both estates, and, so far as appears, continued such (except as dis[108] charged from active trust on settlement of his accounts) down to the period of his death, which occurred, as stated in the bill, in October, 1878, since which time there has been no personal representative of either estate. We do not see, therefore, how the Statute of Limitations, or lapse of time, can be set up against the complainant, Pattie A. Clay, the heir at law of Territory of Arizona-authority of Legislature C. I. Field. to establish courts.

That she is a proper party to bring this suit we think is very clear. She is the only person in the world interested in C. I. Field's real or personal estate. In the realty she is legally interested as heir at law; in the personalty she is the only beneficiary. If new letters of administration were to be taken out it would be for her benefit. There are no creditors; there are no debts due the estate except the one debt due from the partnership. The plantation is partnership property, standing in the joint names of the partners, but liable for the partnership debts. C. I. Field and his administrator held it in possession subject to the lien of those debts. She, as their successor and the only person beneficially interested, still holds that possession. We think it would be highly inequitable to deprive her of that possession at the suit of the heir of D. I. Field, the debtor, without payment of the debt under the lien of which she holds it, or, at least, without bringing the debt into account against the property itself and any rents and profits which she and her predecessors in interest may have realized therefrom. Her position is really one of defense. She has possession, and an attempt is made, under a technically legal title, to deprive her of that possession; whilst that legal title is a merely formal one; since, as before said, the lands are partnership property, and assets, in equity, subject to the partnership debts; and her possession as sole successor in interest to her father cannot be disturbed without doing equity to her, by allowing her to bring the notes, with interest (now belonging to her) into account against those assets. The sale

The decree of the Circuit Court is reversed, and the cause remanded, with instructions to overrule the demurrers, and to proceed in the cause according to law and the principles announced in this opinion.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

Ex Parte:

In the MATTER OF WASH. F. LOTHROP.
(See S. C. Reporter's ed. 113-119.)

Argued and submitted April 12, 1886. Decided
April 26, 1886.

PETITION for a writ of habeas corpus. De

The case is stated by the court.
Mr. A. X. Parker, for petitioner.

Mr. Thomas Mitchell, in opposition.

Messrs. A. T. Britton and Â. B. Browne, filed a brief in support of the validity of the Territorial Act "in behalf of the legal profession and the public at large" in the Territory.

Mr. Chief Justice Waite delivered the opinion of the court:

[10

[113

The petitioner is detained in the territorial [114 prison of Arizona upon a warrant of commitment issued by the County Court of Cochise County, under a sentence of imprisonment on a conviction of the crime of grand larceny; and the only question presented by his petition is whether the Territorial Legislature of Arizona had authority to create and establish that court. There is no question of the jurisdiction of the court to try the petitioner for the offense of which he was convicted, if the court itself was rightfully created.

The provisions of the Revised Statutes on which the question depends are these:

"Sec. 1846. The legislative power in each Ter

The judge of the court was to be elected by "Sec. 1866. The jurisdiction, both appellate | the qualified electors of the county, and to hold and original, of the courts provided for in his office for four years. He was to reside at sections 1907 and 1908 shall be limited by law." the county seat, and could not be absent from Such was the organic law of Arizona, as the county more than thirty days in each calshown by the Revised Statutes, on the 12th of endar year. March, 1885, when the Act was passed by the Legislative Assembly of the Territory and approved by the Governor, "to create and establish a County Court in the County of Cochise." Section 4 of this Act is as follows:

[118]

tion may be made concurrent with that of
every other court which is alike inferior to the
supreme court. Section 1869 provides for ap-
peals and writs of error from the district courts
to the supreme court, but this is not at all in-
consistent with authority in the Legislature of
Arizona to allow like appeals and writs of error
from any other inferior court it may establish.
District courts are now established in all the
Territories, but it is, to say the least, doubtful
whether that was done by Congress in Arizona
prior to the adoption of the Revised Statutes.
As has already been seen, the original organic
Act contained no such provision in express
terms, and it is not necessary now to decide
what effect the extension to that Territory of
the legislative enactments, etc., of New Mexico
may have had on this subject. At the first
session of the Territorial Legislature of Arizona
in 1864 such courts were established and their
jurisdiction defined. Howell, Code, chap. 45,
pt. 3. At the same time the Territory was
divided into three judicial districts, the judges
of the supreme court assigned for district court
purposes, and the times and places for holding
such courts fixed. From that time until now
district courts have actually existed in the
Territory, and it is not now important to inquire
by what particular authority. The Territorial
Legislature had power before the adoption of
the Revised Statutes to create courts of con-
current jurisdiction with the district courts,
and this power was not taken away by the re-
vision.

vide that it should be vested there "in a su- | be inferior to the supreme court. Its jurisdic-
preme court to consist of three judges, and
such inferior courts as the legislative council
may prescribe." Chap. 56, 2, 12 Stat. at L.
665. In all the other Territories then existing
it had been vested "in a supreme court, district
courts, probate courts, and in justices of the
peace." This practice began with the Act estab-
lishing the Territorial Government at Wis-
consin, April 20, 1836, 5 Stat. at L. 10, chap.
54, § 9, and it was followed in all the territo-
rial organic Acts passed afterwards, except in
those for Arizona and Alaska. In Arizona the
provision as to the vesting of judicial power
was more like that in the organic Act of Florida,
March 30, 1822, 3 Stat. at L. 654, chap. 13, § 6,
where it was placed "in two superior courts,
and in such inferior courts and justices of the
peace as the legislative council of the Territory
may from time to time establish." This, it was
held in American Ins. Co. v. Canter, 1 Pet. 511
[26 U. S. bk. 7, L. ed. 240], gave the legisla-
tive council authority to establish courts of con-
current jurisdiction with the superior courts,
except in respect to capital offenses, as to
which, by the organic Act, the jurisdiction of
the superior courts had been made exclusive.
The language of Chief Justice Marshall is, p.
544 [256]: This general grant is common to
the superior and inferior courts and their ju-
risdiction is concurrent, except so far as it may
be made exclusive in either, by other provisions
of the statute. The jurisdiction of the superior
courts is declared to be exclusive over capital
offenses; on every other question over which
those courts may take cognizance by virtue of Something was said in argument about the
this section, concurrent jurisdiction may be use of the word "prescribe" in the organic
given to the inferior courts." This is, as it Act of Arizona, and "establish" in that of
seems to us, equally applicable to the present Florida, but we attach no importance to this.
case. The legislative power of the Territory The words are often used to express the same
extends to "all rightful subjects of legislation thing, and Webster classes them as synonyms.
not inconsistent with the Constitution and laws We are, therefore, of opinion that the Act
of the United States." This includes the estab-establishing the county court is valid and that
lishment of "inferior courts;" that is to say, the writ should be denied. Congress has power
courts inferior to the supreme court. District under section 1856 of the Revised Statutes to
courts have been established by Congress, but disapprove the Act and thus render it inopera-
Congress has not defined their jurisdiction, tive thereafter, and it is to be presumed this
further than to provide generally that they will be done if in its practical operation the
shall have chancery as well as common-law court shall be found to be no longer desirable.
jurisdiction. According to section 1866 the There may be now no good reason for keeping
jurisdiction of all the courts is to be such as up the distinction between the power of the
shall be limited by law. There is no restraint Territory of Arizona over its courts and that
on the legislative power of this Territory as to of the other Territories; but this is a subject
the grant of jurisdiction to the inferior courts, for congressional legislation and not for judicial
except by implication, that it shall be such as restraint.
properly belongs to a court inferior to the su-
preme court. In Ferris [Perris] v. Higley, 20
Wall. 383 [87 U. S. bk. 22, L. ed. 384], it was
held in respect to a Territory where the judicial
power was vested in a supreme court, district
courts, probate courts, and justices of the
peace, that the probate courts could not be
vested by the territorial Legislature with the
powers of courts of general jurisdiction, both
civil and criminal, because that would be in-
consistent with the nature and purpose of a
probate court as authorized by that Act, and
inconsistent with the clause which conferred
on the supreme court and district courts gen- Bill in equity to clear title-when does not lie-
eral jurisdiction in chancery as well as at law.
But here there is nothing of the kind. All that
is required, according to the doctrine of Ameri-
can Ins. Co. v. Canter, is that the court shall

The rule is discharged and the writ of habeas corpus denied.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

UNITED STATES, Appt.,

0.

C. 8. WILSON.

(See 8. C. Reporter's ed. 86-90.)

legal remedy.

1. The remedy of a person having the legal title

to real estate, but kept out of possession by a per-
son holding adversely, is at law to recover the pos-

[119]

[86

[87]

session. Bills quia timet, to remove a cloud from a deed, under and by virtue of said assessment,
legal title, cannot be brought by one not in posses- distress warrant, levy, and sale, all the interest
sion of the real estate in controversy, because the
law gives a remedy by ejectment which is plain, in said lands of the said Allen, of which, at the
adequate and complete.
time said taxes became due and were payable,
2. Where the local statute gives the remedy by it is averred the said Allen was owner in fee,
bill in equity to remove a cloud upon a legal title,
without requiring the complainant to obtain prior holding the legal title thereto; that, notwith-
possession, that remedy may be administered in standing said taxes were a lien on said lands
appropriate cases by the courts of the United States, from the time the same became due and pay-
but section 5043 of the Tennessee Code, enlarging the
equity jurisdiction of courts of that State, does not able, the said Allen and the said Wilson con
efface the distinction between legal and equitable spired and confederated to hinder, delay and
rights and remedies; and if it did, it could not con- defraud the United States in the collection of
fer upon the courts of the United States jurisdic- said taxes, and, in pursuance of said conspiracy
tion in equity to try cases at common law.
3. The United States alleged in its bill that a dis- and confederacy, on January 14, 1876, the said
tiller became indebted in a certain sum for taxes Allen made a pretended sale and conveyance of
and penalties which were assessed on the July list said tracts of land by deed to the said Wilson;
for 1867; that on failure to pay the same proper
steps were taken and, on March 25, 1876, the inter- that the said deed purported on its face to be
est of the distiller in certain real estate was sold to an absolute conveyance in fee, and was duly
the United States; that, there having been no re-
registered and recorded as such; but the same
demption, the land was, on September 29, 1877, con-
veyed to the United States; that on January 14, 1876, was not so in fact, there being a secret agree-
the distiller, for the purpose of defrauding the ment between the parties thereto by which it
United States, conveyed the property to the de-
fendant in error. Held, under the principles above was converted into an assignment with benefits
stated, that the remedy of the United States, if any, reserved to said Allen, and was made for the
was by ejectment.
purpose of hindering, delaying and defrauding
[No. 226.]
the United States in the collection of said taxes;
Argued April 15, 1886. Decided April 26, 1886. the said Allen being at the time insolvent, and
the property conveyed being all his property

APPEAL from the Circuit Court of the United subject to execution, and the convent of all

States for the Middle District of Tennes- Wilson being, therefore, an assignment of all see. Affirmed. his effects by an insolvent debtor of the United States, within the meaning of section 3466 of

The case is stated by the court. Mr. Wm. A. Maury, Asst. Atty-Gen., for the Revised Statutes of the United States; that appellant.

No one appeared for appellee.

since this assignment and since the sale to the
United States, the defendant Gill claims to have
acquired an interest under Wilson in the said

Mr. Justice Matthews delivered the opin-real estate. ion of the court:

This is a bill in equity filed by the United States, June 6, 1878, to which were made defendants the widow, personal representatives and heirs at law of E. L. Allen, deceased, and C. 8. Wilson, the appellee, and John T. Gill. The material allegations of the bill are, that in the year 1867 there was a firm of distillers in Lincoln County, Tennessee, under the name of Alexander & Co., of which E. L. Allen, since deceased, was a member; that the said firm became indebted to the United States in the sum of $3,057.16 for taxes and penalties, which were duly assessed on the July list for 1867; that failing to pay the same, as required by law, the proper collector of internal revenue, on January 21, 1876, issued a distress warrant for the collection of the same which, there not being a sufficiency of goods and chattels of the firm or either of the partners, was, on January 22, 1876, levied on all the right, title, claim and interest of the said E. L. Allen, in and to certain real estate in said County of Lincoln, particularly described in the bill; that, pursuant to law, all proper notices having been previously given, the said premises were offered for sale at the court-house door, in the Town of Fayetteville, on March 25, 1876, when said lots and parcels of land were offered separately at the minimum price placed on each; and no person offering to take them or either of them at said price, the same were purchased by the United States in accordance with the statutes in such cases made and provided; that no one appearing to redeem said lands within the time provided by law, on September 29, 1877, the collector of internal revenue, then in office in said district, conveyed to the United States, by

The prayer of the bill is that the conveyance by Allen to Wilson be declared fraudulent and void; that the paramount lien of the United States in said land for the said taxes be adjudged and declared; that the priority of the United States be maintained and decreed, and the preended conveyance of Allen to Wilson be removed as a cloud upon their title, and account for rents and profits, and a writ of possession to put the complainants in possession, and for general relief.

The defendants answered, denying the legal-
ity of the tax and its assessment, and the regu-
larity of the steps taken for its enforcement,
and the validity of the sale and conveyance to
the United States, and denying all the allega-
tions of fraud and trust in reference to the con-
veyance from Allen to Wilson, insisting that
the same was an absolute conveyance, made in
good faith and for a valuable consideration.
The case was put at issue by a replication and
heard upon the pleadings and proof. The cir-
cuit court, finding the preponderance of evi-
dence against the allegation of a demand of
payment of the tax, penalty and interest, as re-
quired by section 3185 of the Revised Statutes,
and that the title set up by the United States
had failed, dismissed the bill. From this decree
the United States has appealed.

Without examining the ground on which the
circuit court proceeded, we are of opinion that
the bill was rightly dismissed.
The case as
made by it is not one of equitable cognizance. It
is not a creditor's bill. The United States does
not set forth a debt due and a lien on the land
of the debtor which it seeks to subject to the
payment of the debt by a sale and to marshal
the liens thereon. The debt originally due by

[88]