to
FEDERAL
vol. 44.
Bhni8Onv.SchVlten, 104 'U.S.'415;ScheU v,, Dodge, 107 U. S. 630, ,2 830; PhiUip8V., Negley,117 U. 665,6 Rep, 901; Cannonv. U. Sup. Ct. Rep. 1064.; , ;," i 88 is thus absolute regard fo;thepower of'the to 'grant a renelu1:ng in tll:luitycauses in which lili lippeal lies, after the tetmat'whicih'the final decree is entered and recorded, it seems to'be 'actually with regard to the power of the 'court to grant a rehearing in iriwlHch Ii? appeal liesa(;er term of the court folloWll'lg the term in whlCh the final decree.was rendered. As .the 'coUrt' was withoutpower or autl)O'rity to grll.ntthe,. application, it to,fbllo'IV conclusively tha:tthe order rehearing, and the sUbsequent proceediflgs thereunder, were void;' It' is therefore ordered, adjudge4, and decreed that all the proceedings 'had in the matter onhe Witters-Pierce oil Company intervention in tbis cause, since the adjourni;neritofthe Mlirchterm, 1888, 'be "and thesatne are vacated and anhulled.', It is further ordered that tlieWaters-Pierce, Oil Company be t6 pay au costs since the,March 1888,
[language of tlle equitr fl,lle above quote4, it seems clear that, when the petition for rebearing was admitted by the court, the cO'\1rt was power or a)Jthority to grant the appliGation. In Roemer v;: Simon, U.8.149, the supreme, court, in considering the effect of equity rule 88 in ,an appealable case, ;say: ' '''The cdurt below cannl'ltgrantarehearing after the term at which the final decree was rendered.'1 ' . " , lusticeliARLAN,in the case of Morgan'8, etc., 00. v. Texa8 Cent. 32 Fed. Rep. 530. says; , ..It is an estab\lshed principle that,exe,ept upon bills of, review in cases in equity,upon;wTits of error coram 'Dobis in cases at law, or upon motions 'Which,' in practice. have been substituted fol' the latter remedy, no court ·can reverse or annul its 'ownfinaldecision or jUdgment for errors ,of faet or law, the ter,m at which they have been rendered. unless mistakes; 'frttm It follows that Iiochi\nge or modification can he made which may SUbstantially vary 01' affect it in any matel'ialtlling.' .. ' " '11.,&,8;, 12··pet. 4SS;Banlc't;Moq8,6 How. 31;
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UNITED STATES'll. MA.SICH
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et ale I '.
(CirCuit Court. E. D. LouiStana. November, 1800.) · .· .' , ',' ·J; '
RlIoBmRS-WItBN'
IN :POSSESSION. : i' the mortgampropertr,:.moe1ver will , ' , Dot in favor,of one cllpming Ijo.subsequenI lien. thereOD by seizure un" 'dar execution, but the clfu.rt will comllel the applloatioilofthe rents and profits of 'Ule property tothll of the mortgage, by injUDQtiou. , : (:"; j
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a receiver· 'i,1
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-UNITED STATES
V.
MAlliCK.
T. J. Semmes, for defendants. PARDEE, J. Since the bill was filed in this case, the defendants by transfers of notes aM properties among thetilselveShave materially changed the Btatu8 and possession of the property on which claims a lien by and through seizure under execution. These transfers pendente Ute cannot, of course, prejudice any of complainant's rights in and to the property upon which the lien is claimed; but I think they may be considered in determining the present qU,estion before the which is, whether it is necessary, in order to protect cwnplainant's rights, that a receiver of the property in controversy should be appointed, so that the rents and profits may be applied, so far as may he equitable, towards the satisfaction of complainant'H judgment against Masich. The serious atta\)k upon the validity of vendor's pnvIlege claImed for the second note of $8,000, gwen by Faget at the time of the purchase of the property. The showing madA upon this' bearing leaves little doubt in my mind as to the validity and priority' of that vendor's lien. This showing is to the further effect that ant :David Jackson is owner of that mortgage note carrying the vendor's lien, and is in possession of the mortgaged property for the custody ofwhich the receiver is asked. It is true that by the letter of the transfer made be is in possession as owner with said note extinguished; but as such'tnfnsfer imports that he purchased the property, giving the said note as part consideration, it would seem clear that his worst position in regard Wthe property is that of a mortgagee in possession. Against a, in possession,' the. general rule is not to appoint a receiver in, While Jackfavor o,fsubsequent lienholders. See Beach, Rec. § son's abtionsand conduct in the matter, both before and after filing this bill, are such as to throw suspicion upon him"and tend to show that the charges made by complainant in the bill, as to his collusion with defendant Masich, in this case, are true, I am inclined to think that all that. the complainant can ask in the case is that the rents and profits of the' real estate in questioll shall be appliec1 in favor of its claim, if eventually sustairierij and this can be as well done, indirectly, by compelling the application ofrents and profits to the satisfaction of the undoubted prior' mortgage as by the appointment of a receiVer. I am of the opinion that an injuDc'tion should issue in the case restraining defendants, Jackson and Masich, from further transferring or incunJbering the property in any wise, and from applying the rents and profits of the said real estate to any other purpose than the reduction of the principal and interest of the note for $8,000, made by Laurent Faget to his own order, and by him indorsed, dated 19th April, 1884, payable two years after date, which note is alleged to be secured by the mortgage and vendor's privilege upon the property in question. Such injunction may issue.
12
FlWQAL REPORTER,
MCCULLOH 'lJ. SMITH.
(Circuit Oourt, S. D. New York. October 1, 1890.) '3ALB-F.ULURE TO AOOEPT-REMEDllllS OP SELLER.
Where a corporation wrongf'':!ly refused to lK'Cept and pay for certain watch movements made for it, the maker may himself sell them, though the name of the coIllOration was, by its direction, inscribed on each movement.
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