Statement of the case.

be remembered that the case is not brought here on a writ of error with a bill of exceptions to the admission of every item of testimony offered and received below. Nor is it a part of the duty of counsel representing the government to urge microscopic objections against an honest claimant, and urge the forfeiture of his property for some oversight of the commissioners, in not requiring proof according to the strict rules of common law. When there is any just suspicion of fraud or forgery the defence should be made below, and the evidence to support the charge should appear on the record. If testimony of witnesses is alleged to be unworthy of belief, the record should show some reason to justify the court in rejecting it. The former opinions of this court may be referred to in questions of law, but cannot be quoted as evidence of the character of living witnesses.

On the 2d of June, 1845, Antonio Chaves petitioned the governor for the grant of a place called Pleyto, containing three leagues, a little more or a little less. The record does not show the usual reference for information. But the grant by Pio Pico, dated 18th July, 1845, recites that "the necessary steps and investigations were previouly taken and made in conformity with the requirements of laws and regulations.” On the 8th of May, 1846, "this espediente was laid before the Departmental Assembly, and was ordered to be referred to the Committee on Vacant Lands." The committee reconimended "that the present espediente be remitted to the authorities of that jurisdiction to be reported on, and to the person in charge of San Antonio, in order that he may say in what condition the town was at the time the grant was made, so that it may be valued, and that community be indemnified to avoid questions relative to the espediente, to the end that after these proceedings are concluded the respective approval may be given." As this Assembly was soon after finally dissolved, nothing further appears to have been done. There is evidence that Chaves was in the occupancy of the land granted.

We have frequently decided that the want of approval by the Departmental Assembly will not affect the validity of the

Statement of the case.

grant. In this case the approval is not denied, but the question suspended.

Although some of the grants purporting to be made by Pio Pico, in the spring of 1846, shortly before his expulsion, have been shown to have been executed after that time, there is no evidence in this case to justify the court in deciding that this grant is not authentic.

DECREE AFFIRMED

JONES". GREEN ET AL.

A bill in equity will not lie on behalf of judgment creditors to subject real property of their debtor, held by a third party upon a secret trust for him, to the satisfaction of their judgment, until a fruitless attempt has been made for its collection by execution at law.

APPEAL from the Supreme Court of the Territory of Nebraska, the case being thus:

In February, 1859, C. and J. Green and C. and I. Gill filed a bill in Chancery in the District Court of the Territory just mentioned, against one Jones and a certain Brown. It set forth that in March, 1858, the said Greens had obtained judgment in the District Court of the First Judicial District of Nebraska, against Brown, for $1155, and that in October of the same year, the other two complainants, G. and C. Gill, had obtained judgment against him in the same court for $450. It charged, that on the 15th of July, 1857, Brown was engaged in mercantile pursuits in the city of Omaha; that he was on that day utterly insolvent, and being about to suspend business and the payment of his debts, purchased certain real estate in the city just named; and in order to place it beyond the reach of his creditors, procured a conveyance to be made to the other defendant, Jones, who it was alleged now held the property upon a secret trust for him. The bill set forth also that executions had been issued and returned unsatisfied, and prayed that the premises might be sold and the proceeds applied to the payment of the judgments. The

Opinion of the court.

answer denied that executions had been issued and returned unsatisfied; and there was no sufficient proof that they had been.

The District Court rendered a decree in favor of the complainants, and the Supreme Court of the Territory affirmed it. On the argument of the appeal in this court,—which was by Messrs. Carlisle and Redick for the appellant, and by Mr. Woolworth contra,-several objections were made to the decree; but the only one considered by the court was, whether the bill would lie before the judgment creditors had attempted to collect their judgments by execution at law.

Mr. Justice FIELD delivered the opinion of the court: In March, 1858, two of the complainants recovered judg ment against Brown, in one of the District Courts of the Territory of Nebraska, for upwards of eleven hundred dollars. In October following, the other complainants also recovered judgment, in the same court, against Brown, for upwards of four hundred dollars. In February, 1859, the judgment creditors instituted the present suit, the object of which is to subject certain real property situated in the city of Omaha to the satisfaction of their respective judgments.

The bill charges that on the 15th of July, 1857, Brown was engaged in mercantile pursuits in that city; that he was on that day insolvent, and being about to suspend business and the payment of his debts, purchased the real property in question, and in order to place it beyond the reach of his creditors, procured a conveyance to be made to the defendant Jones, who now holds the property upon a secret trust for him. The bill prays that the premises may be sold and the proceeds applied to the payment of the judgments. The District Court rendered a decree in favor of the complainants; the Supreme Court of the Territory affirmed the decree, and the defendant Jones has appealed to this court.

Several objections to the decree were urged upon the court on the argument, which we do not deem it necessary to consider. The objection that the complainants have not shown any attempt to enforce their remedy at law is fatal to the relief prayed. A court of equity exercises its jurisdiction

Opinion of the court.

in favor of a judgment creditor only when the remedy af forded him at law is ineffectual to reach the property of the debtor, or the enforcement of the legal remedy is obstructed by some incumbrance upon the debtor's property, or some fraudulent transfer of it.

In the first case the court, when its aid is invoked, looks only to the execution, and the return of the officer to whom the execution was directed. The execution shows that the remedy afforded at law has been pursued, and of course, is the highest evidence of the fact. The return shows whether the remedy has proved effectual or not, and from the embarrassments which would attend any other rule, the return is held conclusive. The court will not entertain inquiries as to the diligence of the officer in endeavoring to find property upon which to levy. If the return be false, the law furnishes to the injured party ample remedy.

In the second case the equitable relief sought rests upon the fact that the execution has issued and a specific lien has been acquired upon the property of the debtor by its levy, but that the obstruction interposed prevents a sale of the property at a fair valuation. It is to remove the obstruction, and thus enable the creditor to obtain a full price for the property, that the suit is brought.*

In this case the bill alleges that executions were issued upon the judgments of the complainants, and were returned unsatisfied, but the allegation was not admitted, and no proof on the subject was produced at the hearing. The case, therefore, stands as a suit in equity commenced for the satisfac tion of judgments before any attempt had been made for their collection at law by the issue of execution thereon. That the suit cannot be maintained under these circunstances is clear both upon principle and authority.

The decree appealed from must therefore be reversed, and the court below directed to enter a decree for the defendant, disinissing the suit.

REMANDED WITH DIRECTIONS ACCORDINGLY.

Beck v. Burdett. 1 Paige, 307; McElwain v. Willis, 9 Wendell, 559; Crippen v. Hudson, & Kernan, 164.

Statement of the case.

BAKER V. GEE.

1. Under the act of Congress of June 10, 1852, giving to the State of Missouri certain lands for railroad purposes, and the act of that State of September 20, 1852, accepting them and making provision in regard to them, the location of the lands was not fixed within the meaning of those acts by the mere location of the road; nor was it fixed until the railroad company caused a map of the road to be recorded in the cffice for recording deeds in the county where the land was situated; this sort of location being the kind required by the last act.

2. Where Congress gives lands to a State for railroad purposes and for "no other," and the State granting the great bulk of them to such purposes allows settlements by pre-emption, where improvement and occupancy had been made on the lands prior to the date of the grant by Congress, and since continued; a purchaser from the railroad company of a part which the State had thus opened to pre-emption cannot object to the act of the State in having thus appropriated the part; the railroad company having, by formal acceptance of the bulk of the land under the same act which opened a fractional part to pre-emption, itself waived the right to do so. The United States as donor not objecting, nobody can object.

ERROR to the Circuit Court for the District of Missouri, the case being thus:

On the 10th June, 1852, Congress, by statute,* granted to the State of Missouri, to aid in building railroads from Hannibal to St. Joseph, the right of way through the public lands, and every alternate section designated by even numbers for six sections in width on each side of said roads. The statute directed that "a copy of the location of the roads, made under the direction of the legislature," should be forwarded to the proper local land offices and General Land Office at Washington; and that the lands thus given should be disposed of by the State for the purposes contemplated, and for "no other."

On the 20th September of the same year, the legislature of Missouri, by an act passed to accept the bounty of Congress, required that the lands should be selected by the company, under the direction of the governor, and that a

10 Stat. at Large S.

+ Session Acts, 1853, p. 15.