11·.
467
certain proceec;ljngs had which the;bankitselfsuffereda forfeiture of its.charter 9yrea$oll ofthe wrongful al;lts of.iti! directors. The couot; understand plerely recites that the court before whom that was pending found that thewrongfuLacts in question were done knowingly by t.he 91rectors, but, does not cont;lin any direct were don,e knowingly. averment ,otherwise than .by,recital that The averment .of course that the court found th3tthe deceased director did certaIn acts knowingly is not tantamount to an ar;errnl:lnt by the pleader that the, deceased director did the acts knowingly. If this part of the petition had been demurred to specially we should have it, beca,use tpe knowledge of the director is not directly averred. But the deruprrer is a general demurrer to the petition as a whole,and if there is one good cause of action stated.in it the demurrer must be overruled., We do not know ,whether relies on the first count, bu,t, as the matter sPtnds, tbe other charge that the de<leased did the acts and things ,complained of knowingly , and the m uuer (accordingly be, qverruled. ,
.
B:E:RRIAN fl. -ROGEns et
al.
SAME
fl.
CObK et al., (three cases.)
,(CircuitOourl, D. Oolorado. JUDe 20, 1800.)
.At TAl",:
Wells, Tay7ar, for plaintiff'. L.' a. R,oc.kweU and! E. P. Hannon,for defendants.
This is nn action of ejectment brought by Berrian others. The easeis this: All a'lministrator was ppiuted for an estate, ahd he went Lelore the probate court of the proper county I!o petition nsrequire9 by the III ws of state,askhlg to authpr!zed to, sell real estate.of his iJ1testate to 'pay deLts. rfhat , No questions aLout that, petition il;sv{'I'Y full and and, such aQtjpn. ''''lls hadOD ihnt petition as that it was granted, and, a very fuJJ order'malIe by the and directing saleqf estate1a!ld it wass91dby ,the administrator.. '1'he
'.I,
468
FEDERALR:EPORTER,
vol. 43.
purchasers at the sale", The plaintiff, deraigning titlethrqugh O1ie'of the' heirs, of the estate to a parcel of that property, now bririgsejectment on tbe'assumption that that sale was void for with thereof the statute of this state, in reference to the sale of the real ptopertyofthe decedent by the administrator. occasion for me tc! go extensively :jut<> the questions raised by" The learned counsel for the plaintiffs concedes that all the questions raised in the case have been definitely and precisely decided by the supreme court of this state, and that, too, in a case involving the regularity of this very sale. Some of the heirs of the intestate or decedelltappealed from that order of sale to the supreme court, and that court, sitting asa court of error, held that 'the proceedings were all regular; that the order of sale Was proper ,and that the title of the intestate to the property sold passed by that sale.' In that suit every question now n1adein.thls was brought to the attention of and' was definitelJ passed on by' the supreme court. ;'I'he case has 'once been' the samtj tried in this court before J udge as that of the supreme court. The statutes of this state give the beaten party in ejectment a second a,s of course, and so the case is before me for trial a second time. Independently of the decision of the supreme court, whose decision in the cOllstruction of the statutes of this state is binding upon this court],! shqul4 hqld that thi$.'iwas a valid sale, on the authority of a long line of dech;iollS of the supreme court of the United to do what was States. done in this case, and 'the ohly point raised is" tlie question of the regularity of n<;>tice to one or heirs. Now the supreme cou'rt o'f the United States has said a half-dozen times that yop cannot raise that question collaterally j,n this rule seems not to be in acoordance with the general doctrine on the subject of jurisdictiotl, but in t.qis class of cases maintained that doctrine. An interesting case on this subject is Mohr v.Manierre, 101 U. S. 417. The gU&i'dian of an insane man a'(Jplied to the probate court for authority to sell his real estate to pay his debts and to support him. The usual proceedings were had; the order of sale made; the property 4/(ed made; presently the man was restored. to. his. sepses, when restOred to his senses to reoover the .property back, on the ground that the proceedin:gs for the sale were void for want of lhEf required notioeof the petition to sell. Now it.h/:lppened at that . there were two purohasers of parcels, -'-one manpurohased one parcel ofthatproperty,arid anoth irinan purchaseq another . When the man who had to his senses brought his actions, it happened that one of the' purchasers was a citizen of allother state than' Wisoonsin, and whenha was sued, he removed his cause irito the circuit courtofthe United 'States, sO.that one case was progressing'itl the circuit court of the United States and atlOthetin the state cdu'rt.; The case in the state court w,ent to the supreme court of the state of Sll), and'they deCided the deed was void, because the notice required by statute :t<Hbose interested of the petition to seH had not been gNen'aS
