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Opinion of the Court.

Mr. William A. McKenney, for appellant, on the question of laches, cited : Mos8 v: Berry, 53 Texas, 632; Railroad Co. v. Dubois, 12 Wall. 47; Lux v. Haggin, 69 California, 255; Stockman v. Riverside Land &c. Co., 64 California, 57; Kelly v. Hurt, 61 Missouri, 463; Fielding & Gwynn v. DuBose, 63 Texas, 631 ; Hill v. Epley, 31 Penn. St. 331; Knouff® v. Thompson, 16 Penn. St. 357; Bales v. Perry, 51 Missouri, 449 ; Strong v. Elsworth, 26 Vermont, 366 ; Sulphine v. Dunbar, 55 Mississippi, 255; Rice v. Dewey, 54 Barb. 455 ; Mayo v. Cartwright, 30 Arkansas, 407 ; Neal v. Gregory, 19 Florida, 356 ; Bramble v. Kingsbury, 39 Arkansas, 131; Terre Haute &c. Railroad v. Rodel, 89 Indiana, 128; Viele v. Judson, 82 N. Y. 32; Diffenback v. Vogeler, 61 Maryland, 370; Meley v. Collins, 41 California, 663.

Mr. William Pinckney Whyte and Mr. Clark Churchill, for appellees, cited to the same point: Harwood v. Railroad Co., 17 Wall. 78; Diefendorf v. House, 9 How. Pr. 243; The Key City, 14 Wall. 653; Badger v. Badger, 2 Wall. 87; Speidel v. Henrici; 120 U. S. 377; Richards v. Mackall, 124 U. S. 189; Smith v. Clay, 3 Bro. Ch. 639 n.; Piatt v. Vattier, 9 Pet. 405; McKnight v. Taylor, 1 How. 161; Wagner v. Baird, 7 How. 234; Hume v. Beale, 17 Wall. 336; Marsh v. Whitmore, 21 Wall. 178; Sullivan v. Portland & Kennebec Railroad, 94 U. S. 806; Godden v. Kimmel, 99 U. S. 201.

MR. JUSTICE HARLAN, having stated the facts as above reported, delivered the opinion of the court.

The grounds upon which the District Court sustained the demurrer to the complaint are not shown by the record otherwise than from the statement in the opinion of the Supreme Court of the Territory that it was because of laches in bringing suit. The latter court said : “ It appears that the grantor of the plaintiff stood by and saw all this property sold, and had a right to redeem the same in six months after the sale; that her residence was Maricopa County at the death of her

Opinion of the Court.

husband, and its continuance will be presumed to be there, the contrary not having been alleged; that there was no action brought to set aside the judgment; that from the 8th day of November, 1883, till the [2] 9th day of June, 1887 — nearly four years — she saw the property greatly enhancing in value, saw it sold time and again, then sells it to the plaintiff, who now comes into a court of equity and asks a cancellation of all those sales. If the bill had shown, and which plaintiff was, allowed to show, that any disability existed on the part of any one having an interest in the property at the time of sale, we would grant the prayer of the bill. No such disability being shown, can we think of allowing the party who has so long slept upon her rights to divest the present owners of their valuable property ? "

The difficulty with this view is that it has ņo foundation in the allegations of the complaint. From the mere fact that Mrs. Bryan's residence at the time of her husband's death was in Maricopa County, where the real estate in question is situated, the court below presumed not only that it continued there, but that she “stood by” for nearly four years, forbearing to exercise her right to redeem, and "saw the property enhancing in value — saw it sold time and again ” — without asserting any interest in it. No such presumption was justified by the allegations of the complaint. The case made by those allegations is that of an administrator, who, having claims against the estate he represented, which were secured by mortgage upon real property of which his intestate died seized, and having in his hands money sufficient to discharge those claims, yet resorted to the expedient of taking judgment in his individual name against himself in his fiduciary capacity, for the amount of the claims and for attorneys' fees, and caused the property to be sold. And of all those facts - the demurrer admits - the defendants and each of them had full notice when they made their respective purchases. Referring to the allegation in the complaint, that the administrator, at the time he sued himself, had in his hands sufficient money to pay off his claims, the counsel for the defendants suggest that this might well be, if those moneys had been applied to the

Opinion of the Court.

debts in question without providing for the payment of other debts against the estate, the expenses of administration, or preferred claims; and that for aught appearing in the coinplaint, it may have been the duty of the administrator to apply the moneys in his hands to other debts and claims. A sufficient answer to this suggestion is, that the allegation in the complaint upon this point imports a failure of the administrator to use the moneys in his hands to discharge the debts held by him, when he could properly have so used them.

It is true, as contended, that where the bill shows such laches upon the part of the plaintiff that a court of equity ought not to give relief, the defendant need not interpose a plea or answer, but may demur upon the ground of want of equity apparent on the bill itself. Lansdale v. Smith, 106 U.S. 391, 393; Speidel v. Henrici, 120 U. S. 377, 387. But no such case is made by the bill. The limitation prescribed by the statutes of Arizona for the commencement of an action to recover real property, or the possession thereof, is five years. If this statute governs courts of equity as well as courts of law - and such is the plaintiff's contention — the present action is not barred by limitation. If, as contended by the defendants, a court of equity may deny relief because of laches in suing, although the plaintiff commenced his action within the period limited by the statute for actions at law, still the granting or refusing relief, upon that ground, must depend upon the special circumstances of each case. Harwood v. Railroad Co., 17 Wall. 78; Brown v. County of Buena Vista, 95 U. S. 157, 160; Haywood v. National Bank, 96 U. S. 611, 617. The case made by the complaint in this suit is one of fraud upon the part of the administrator, and in that fraud — if the allegations of the complaint are sustained by proof — the defendants and each of them must be held to have participated. The circumstances as detailed in the complaint are so peculiar in their character, that a court of equity should be slow in denying relief upon the mere ground of laches in bringing suit.

Other questions arise upon the face of the complaint, namely, as to whether Mrs. Bryan had such interest in the property as made her a necessary party to the suit of foreclosure

Syllabus.

instituted by Kales in his individual capacity, and as to how far the validity of the decree of foreclosure and sale was affected by the very unusual fact that the same person was both plaintiff and defendant in that suit. Perkins v. Se Ipsam, 11 R. I. 270 ; McElhanon v. McElhanon, 63 Illinois, 457; Hoag v. Hoag, 55 N. H. 172. But as these questions were not considered by the court below, and as their correct determination can be best made when all the facts are disclosed, we express at this time no opinion upon them, and place our decision upon the ground that the Supreme Court of the Territory erred in holding that the complaint failed to show that the plaintiff was entitled to relief from a court of equity. The defendants should be required to meet the case upon its merits. The decree is reversed with directions that the demurrer to the

complaint be overruled, and for further proceedings consistent with this opinion.

FIELD, J. — I concur in the judgment of this court for the reasons stated ; but I wish to add that in my opinion the judgment recovered by Kales against himself as administrator is an absolute nullity.

In re WIGHT, Petitioner. 1

STATES FOR

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

THE EASTERN DISTRICT OF MICHIGAN.

No. 1521. Argued and submitted January 10, 1890.

Decided March 3, 1890.

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When it is found by a Circuit Court of the United States that the clerk has Opinion of the Court.

failed to put in the record an order which was made at the next preceding term of the court, remanding a case to the District Court, the Circuit

Court may direct such an order to be entered nunc pro tunc. The writ of habeas corpus cannot be used as a writ of error to inquire into

all the errors committed by the court below... An indictment against a letter carrier of the United States Postal Service,

1 The docket title of this case is Wight v. Nicholson, Superintendent of the Detroit House of Correction.

charging that “ he did wrongfully secrete and embezzle a letter which came into his possession in the regular course of his official duties, and which was intended to be carried by a letter carrier, which letter then and there contained five pecuniary obligations and securities of the government of the United States,” is a sufficient charge that the letter embezzled was intended to be carried by a letter carrier of the United

States. In an indictment against a letter carrier for the embezzlement of a letter re

ceived by him in his official character to carry and deliver, it is not necessary to aver that “the letter has not been delivered” if an embezzlement

of it is charged. In a proceeding for a habeas corpus to release from confinement a letter

carrier charged with embezzling letters delivered to him for carriage, this court will not inquire into the motives with which the letter was put into the mail, even though the object was to detect or entrap the party into criminal practices.

This was a petition for a writ of habeas corpus. The writ was refused in the court below, and the petitioner appealed. The case is stated in the opinion.

Mr. Henry M. Duffield for appellant:

Mr. Solicitor General, for appellees, submitted on his brief, which adopted verbatim the brief by Mr. Charles T. Wilkins, the attorney for the United States in the court below.

MR. JUSTICE MILLER delivered the opinion of the court.

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This is an appeal from a judgment of the Circuit Court for the Eastern District of Michigan discharging a writ of habeas corpus en a hearing before that court. By this writ the appellant here, Charles H. Wight, sought to be relieved from imprisonment in the Detroit House of Correction, under sentence of the District Court of the United States for the Eastern District of Michigan. The petitioner was indicted in that court upon the charge that on the 28th day of June, 1888, while he was employed in one of the departments of the postal service of the United States, to wit, as superintendent of letter carriers in the post-office at Detroit, he wrongfully and unlawfully secreted and embezzled certain letters which came into his possession in the regular course of his official duty, and

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