278

I'EDERALREPORQ'Ea:,

vol. 45.

dispute is concerned. The jurisdlctlon;''Ybim dependent upon the amount in dispute in case of appeal or writ ofep-or, is determined by a differentstatldard., There the test is the amount in dispute at the time the appeal is taken. Where the declaration shows tbe requisite amount is demanded, this court bas jurisdiction. "

1. In the case of ArmBtrongv. Ettle8ohn, 36 Fed. Rep. 209, decided in 1888, the declaration had three counts: (1) Upon.a promissory note, $870; (2) moneyhadandreceived,$870j (3) work and labor done, $875. Upon den:lUrrer of defendant, and motion to dismiss for want of jurisdiction, on the ground that the plaintiff had only one right of action, and could reCover only on. Qnecount, the court held that; upon the faclS of the declaration, which :could only be. considered upon demurrer, there appea.re,d three causes of action, aggregating more than the Jurisdictional amount. The, court overruled the demurrer, saying, ifitshould afterthere was only One :cause of action, the case would be dismillsEld. In the case"at bar each count sets forth a separate cause of action. which, when takenin.connection with the addendv,m clause, clearly gave tbis ;co,ut as to the matter in dispute; ,and having acquired J"risdiction upon a well-established principle, prior to the act of 187,5, thIS, court could· proceed to JUdgment. But itiscontended that, the plaintiffs having filed a bill of partioulars under the first count for $405.50, a sum less tho $500, they were bound by that, and could introduce no proof aste.,tlUI other counts, nnd that this court must DOW presume that to be.tbe only. cause of action, and that tbesum in dispute was r.ea11y less than$SOO. The plaintiffs were entitled. to amend their bill of particulars, and, by leave of the court, introduce evidence to sustain the other counts·. MeDlel. Dig." p. 834, §§ 96, 97. There was a trial of the cause belore a jury, .and a judgment was entered on the 7th day of December, 186:9, for $416.04, and it is to be presumefl that the question of Jurisdiction wastben determined. This ,court will not, at this late day, say that the court wbotried the cnusewas so remiss inits duty as t() allow Judgment to be entered in a cause in which the court had DO jurisdiction. If the plaintifishad declared solely upon the court for goods so14 and delivered for $405, concluding with the averment that they had sustained damages of $1;000, it woulubeentirely a diffelent case from the present one, and the court would be Justified in holding that there was no Jurisdiction as to subject-matter. It is contended by the complainants that the court had no Jurisdiction of the person of the defendant John T. Matthews, because the return upon the original writ was made in the name of a speoial'deputy United States marshal, and n,ot ill the, name was pere;onal service upon the defendant, and tbe maliing, pf the in the name of tbe deputy was, atthe most, only an irregularity which :tbe defendant above could take origirialprodeedings; and cannot be raised by strangers to the Judgment. I am of tht!l'opitiion thafthe court had jurisdiction both of the :.the. <person of the defendant. ,2.:81 }<?, be readily determined in {/!-WF is renderedand,e;xecution issued, and it is iPlmaterial,that the individual namea,oI,the plaintiffs are not fully set
   

279
forth in the judgment, and theyanance blsetting out the names· in the execution is notfata!. Tbejudgment and execution are legal and valid. that the defendant in execution, John T. Matthews, 3. It owned and was .in possession ofthe land in question on.the 16th day of March, 1868. Complainants allege that on that day said property was purchased at tax-sale by one Stephen McCall; that he received a taxdeed for the same; and that he went into immediate possession of the property; and that complainants claim under him. The only proof offered to sustllin this allegation is a certiped copy of a purported tax-deed, purporting to'have been e:xecutedon the said 16th day of March, 1868, of Alachua county, where and which was spread upon the public the land is situated,withoutever having been acknowledged or proven state. It has long beel;1 held for record, as required by the laws of that an attempted record of this is no record, but a nullity. (Fla.) 6 South. Rep. 212. This certified copy is not admissible in evidence for any purpose whatever. The complainimts have failed.t() show that the title to the property has ever passed out of Matthew's,hallds, the defendaI;lt in execution; moreover, it was eStablished that Matthews was in actual possession of the property at the date of the judgment, and for more than two years thereafter, and the taxbeen legally Tecorded under ,tnelaws.of this state, deed, was not notice to subsequent creditors orpurchaserswitborit actual notice. Carpenter v. Dexter, 8 Doylev. WOOe,23 Fla. ,90,1. SOlith. Rep. 516. The judgment lien of the defendants is superior to the unrecorded tax-deed:, admitting, that there "Was such deed,which was not .' ,established by legal evidence, 4. The fact. that the cQmprn.iOllllts, aJ;ld those uncierwhoolthey claim, have been ,in theactualwssession of this. pJ:'Opertyfor more than seven not defeat tpe defendants' judgI.uent years, thes:tatutory lien. A judgment lien is on tpe ,same footjng with a J;llQrtgage lien,and it .will nO,t be contended that adverse for seven year8will,de·feat a mortgagelien. 5. When ;the cpmplainantspurcha.sed this property, and improved it, they we,re bound to take notic that. t,Aepretended tax-deed ' been recor.d.ed'llond thatthe.defendants' the recorda of· the COtUit. ,;·The maxim, caveat.emptor., applies., ., ;One of the colDplaJn!1ut.$ sweilrs that he knew tIlat Mattpews W11S in (,)fthe property, 88 late as 1871; .of must detel'mined to a great extent upon the fhctsof each ease. In this caj;;e tIle are not guilty of court is of the <lpinion that· the npt attempt;4lg atan earlier day,because the of other,and ·.testimonydisGlo86s the faelt thl;l.t there were abler jUdgments pt;operly,; aD:jl.Ounting to more valu'e,. .D9t to judgment; ;tbesepriol' liens bee.ll it :,llppears tbat ,tpe complainant mil bad purehased,a1a.rge liens, and was holding them .against the prOpl3rty, or." at :the .inter.the

280

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vol. 45.

strengthening his title thereby. It seems to the court that the complainants knew that their title was defective, and thus sought to perfect it, and cannot, in any sense, be considered purchasers. and entitled to the relief they seek. 'l'he bill must therefore be dismissed.

BANK OF RONDOUT

'IJ.

McGAHAN et al.

(Oircuit Oourt, D. South Oarolina. 1891.)
ApPBAL-SUPERSEDEAS BOND-AMOUNT-FOREOLOSURE SUIT.

Where a decree in foreclosure directs defendant to account· for three-fourths of the rents of the property for several years, and for waste committed during that time. and the judgment for which this accounting is ordered amounts to $13,000, with interest for two years or more, the supersedeas bond will be fixed at $14,000, 88 the case is not within rule 29 of the supreme court, directing that, in Buits on mortgages, the supersedeas bond shall be fixed at a sum to cover the damages arising from the detention of the moneyseoured by the mortgage, measured by the i.nterest on the money.·

In Equity. Motion to fix the amount of IfUper8edeaa bond. Barker, Gilliland Fliiztnrnona, for complainant. L N.Nathana and Samuel Lord, for defendants. SIMONTON, J. If the decree in this case provided simply for the foreclosure of a mortgage of real estHte, the amount of the bond would be fixed at a sum to cover the damages arising from the detention of the money secured by the mortgage. measured by the interest on the money due. Oon8truction 0>. v. TOwn8hip of Oherokee, 42 Fed. Rep. 754. That is the course laid down in rule 29 of the supreme court in "all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages." But the decree orders the defendant to account for three-fourths of the rents and profits of said property from 7th September, 1883, and for any waste permitted by him of the said property between that date and the date of his accounting." This part of the decretal order takes the case out of Kountze Hotel 0>., 107 U. S. 394, 2 Sup. Ct. Rep. 911, and out of this part of rule 29. The limit of this liability to account is the amount of the judgment heretofore secured by the complainant, some $13,000, with interest from 1887. From the evidence taken in the cause, and sUbmitted to the court, (the judge hearing this motion not having sat on the trial,) it appears that the land covered by the mortgage owed its -chief value to the timber upon it, and that this has nearly all been cut away. 'Besides this, it is manifest, from the tenor of the decree, that the presiding judge was under the impression that the land was not a l!lufficiEmtsecurity for the debt. Not only does he order this accounting in aid of the complainant, but he directs the proceeds of sale, costs, and expenses, being deducted, to be paid over to the complainant, and