ant then and there paid to said county the sum of ten thousand dollars as taxes on certain lands, including the land in controversy."

The prayer was "that plaintiff's bill may be dismissed, and that defendant have and obtain a decree and judgment quieting their title to said lands, and; for costs of this case;" and, if the title of the defendant was not sustained, that there might be a judgment in favor of the defendant and against the county for the taxes that have been paid on the land. Under these pleadings testimony was taken, and the cause heard in the court of original jurisdiction, where, on the eighth of May, 1878, a decree was rendered dismissing the plaintiff's bill, and "finding that the allegations of defendant's cross-bill are true, and that the defendant is entitled to the relief prayed for; that the lands in controversy * * * were duly certified to the defendant as land inuring to it, as alleged in the cross-bill; that the defendant became thereby the legal owner of said lands, as alleged in the cross-bill; and that plaintiff has, since 1862, recognized and treated said defendant as the owner of said land, as alleged in said cross-bill; and plaintiff is now, by such acts and conduct, estopped from claiming the same or denying the defendant's title thereto." Upon this finding the decree established the title of the company and quieted it as against the claim of the county. From this decree an appeal was taken to the supreme court of the state, where, on the twenty-fourth of October, 1879, it was affirmed. Thereupon the county presented to the chief justice of the supreme court a petition for the allowance of a writ of error to this court. In this petition it was stated that "in the pleadings, record, judgment, and decree * * * there was drawn in question the rights" of the county under the swamp-land act and the act of March 3, 1857, as well as the construction of the acts making the railroad grant, and that the decision was against the right claimed by the county. In his certificate of the allowance of the writ the chief justice stated that he found from the record that the "facts stated in the petition are true."

*126

The case was several times considered by the supreme court before the final judgment of affirmance was rendered, and the record contains four opinions, filed at different times in the course of the proceeding, from which it appears, in the most positive manner, that the decision of the cause in favor of the company was placed entirely on the ground of estoppel, as set up in the crossbill. The original title of the county is nowhere, in any of the opinions, disputed or denied. A motion is made to dismiss the writ to this court for want* of jurisdiction, on the ground that no federal question is involved. To give us jurisdiction of a writ of error for the review of the judgment of a state court, it must appear affirmatively, not only that a federal question was raised and presented for decision to the highest court of the state having jurisdiction, but that it was decided, or that its decision was necessary to the judg ment that was rendered. The cases to this effect are numerous. Murdock v. Memphis, 20 Wall. 590, 636; Chouteau v. Gibson, 111 U. S. 200; S. C. 4 SUP. CT. REP 340. This record shows that there were two questions presented by the pleadings, to-wit: (1) Whether the county acquired a title in equity to the lands in dispute under the operation of the swamp-land act, supplemented as it was by the act of March 3, 1857; and (2) whether, if it did, it was estopped by its subsequent acts from setting up that title as against the railroad company.

It may be conceded that the first of these questions was federal in its character, but we are clearly of opinion the second was not. A consideration of no act of congress was involved in its decision. There was nothing in the swamp-land grant to prevent the county from surrendering the property to the railroad company, if that was thought best. Under this defense the validity of the original title was not disputed. The claim was that, in legal effect, that title had been ceded to the railroad company, and that the county was in no condition to demand it back. There was no dispute about the fed

*129

eral right itself, but about the consequences of what had been done by the parties in respect to it, after the title had passed in equity from the United States to the county. To our minds, for the purposes of the present question, the case is, in all respects, the same as it would be if the dispute had been about the effect of an instrument intended as a conveyance of the property from the county to the company. The controversy is not as to the right to convey, but as to the effect of what has been done to make a conveyance. That depends, not on federal, but on state law.

It is contended, however, that inasmuch as the alleged *compromise between the county and the company included, among other things, the claim of the county for taxes levied on the lands, the right to tax the lands before a patent was issued for them by the United States must have been passed upon by the court below in the decision which was rendered. Clearly this is not necessarily so. The company claims nothing under the taxation. Its rights against the county do not depend on the validity of the taxes. The right to tax was one of the matters in dispute between the county and the company, and that was compromised with the rest. The effect of the compromise upon the title of the county would be the same whether the tax was properly levied or not. It follows, therefore, that the decision of the court below on this branch of the case did not involve the question of the validity of the title set up by the county under laws of the United States. This brings us to the inquiry whether it appears sufficiently that the case was disposed of below on this defense. If it does, the motion to dismiss must be granted, and, having no jurisdiction, we cannot pass on the correctness of that decision.

The record discloses that this separate and distinct defense was made, and that it in no way depended on the validity or invalidity of the original title of the county. In our opinion it is clearly to be inferred from the decree of the court of original jurisdiction, which was affirmed in the supreme court, that the decision in favor of the company was placed entirely on that ground. So far as the original bill of the county is concerned, the decree finds in favor of the company, and dismisses the bill. Then, as to the cross-bill, it finds the legal title to be in the company, and that the county is estopped from claiming the lands, or denying the company's title thereto. This of itself implies that there was in fact no decision against any right, title, privilege, or immunity claimed under the constitution or laws of the United States, and that the decree rested alone on the defense of estoppel, which was broad enough to control the rights of the parties without disposing of the federal question which it was attempted to raise. In other words, it was adjudged by the state court that the title of the company must prevail in this suit because the county was precluded by its conduct from insisting to the contrary. But if we look to the opinions which, under the laws of Iowa, must be filed before a judgment is rendered, and which, when such is the law, may certainly be looked at to aid in construing doubtful expressions in a decree, it is shown, unmistakably, that the decision was put on that ground alone. Gross v. U. S. Mortgage Co. 108 U. S. 486, 487; S. C. 2 SUP. CT. REP. 940.

In the petition which was presented to the chief justice of the court for the allowance of a writ of error, it was stated "that in the pleadings, record, and judgment and decree, there were drawn in question" the rights of the county under the swamp-land acts, as well as the construction of the land-grant acts, and that the judgment was against these rights. The chief justice, in his allowance of the writ, certified that he found the statements in the petition to be true; but, if this certificate is to have any effect at all upon this question, it certainly cannot be taken as conclusive when the same chief justice, in an opinion on file in the case, places the decision entirely on the ground of estoppel. It follows that we have no jurisdiction, and the motion to dismiss is granted.

1. FRAUDULENT CONVEYANCE-SALE OF LAND.

The fraud which will vitiate a sale must be mutual; that is, must be intended by both parties, or by one with knowledge of the other's purpose, and thus acquiesced in and furthered.

2. SAME-RIGHT OF DEBTOR TO DISPOSE OF LAND.

A party has a right while having debts outstanding-the creditor offering no resistence to dispose of his property in the ordinary course of business for a valuable consideration, and the purchaser has a right to purchase it.

3. SAME CONSTRUCTIVE MORTGAGE-RIGHTS OF PURCHASER.

Upon the execution by a father to his son of a deed of land, the parties made an agreement stating that the grantee, upon an accounting, owed the grantor $8,734, to be paid to him or certain creditors to be named within one year; and that, in consideration of the payment of the grantee's two bonds of $3,000 by the grantor, the land was to be reconveyed for a like consideration. In the absence of any obligation resting on the father to make the payments mentioned, and to claim a reconveyance, (there being also no extraneous facts shown to explain the object in executing the papers,) or any averment that the transaction was other than what the instruments imported,-a sale to the son,-such a transaction cannot be held to have created a mortgage in favor of the son. The title of a purchaser from the latter's creditor, acting as a qualified administrator, cannot, therefore, be defeated at the suit of a creditor of the father.

Appeal from the Circuit Court of the United States for the District of Nebraska.

This is a suit to set aside a sale of certain real property in Omaha, Nebraska, to John A. Horbach, the defendant in the court below, the appellant here, by one John A Parker, Sr., on the ground that it was made to hinder, delay, and defraud the latter's creditors, of whom the complainant claims to be one. The material facts, briefly stated, are as follows:

In March, 1871, one John A. Parker, Jr., died at Omaha, intestate, possessed of certain unimproved real property in that city. He also held a deed of 17 other lots there, which he had purchased of his father in September, 1870. At the time of the purchase he executed to his father an agreement stating that, on a final accounting of all business between them, including the purchase of the 17 lots, he found himself indebted to his father in $8,734, to be paid to him or to certain creditors to be named, within one year, and agreeing, in case he should be relieved from two certain bonds of $3,000 and upwards, to reconvey the lots to his father for a like consideration, and the expenses incurred on them, the amount to be credited on his indebtedness. He left, at his death, no personal estate of any value, and his debts were considerable, among others one of over a thousand dollars to Horbach. His father, who was his sole heir-at-law, and his largest creditor, resided in Virginia, and upon his son's death went to Omaha to attend his funeral. While, there, on the twentieth of March, 1871, he sold his interest in the estate of his son, and his interest under the agreement to reconvey the 17 lots, to Hor-* bach, for $6,000, and executed to him a deed of the lots standing in the name of the deceased, and assigned to him the agreement. He also sold and assigned to him the claim against the estate mentioned in the agreement, Horbach agreeing for the claim to pay the debts in Omaha due to himself and others, amounting to a sum not exceeding $2,200. In May, 1871, Horbach, as a creditor of the estate of the deceased, was appointed its administrator, and qualified. There being no personal effects with which to pay the debts, the real property of the deceased, including the 17 lots, were sold at auction under orders of the proper court, and were purchased by different parties, one of whom, named Kennedy, bought the 17 lots. The sales were reported to the court and confirmed. The proceeds were applied in due course of administration; and in November, 1874, the administrator was exonerated by the court

from liability, and his bond canceled. Subsequently, Horbach purchased, at advanced prices, portions of the property thus sold, among others 15 of the 17 lots.

In December, 1877, Edward B. Hill, the complainant in this suit, recovered in the district court of Nebraska a judgment by default against John A. Parker, Sr., for $3,244 and costs, purporting to be owing upon the promissory note described in the petition of the plaintiff. This petition is not in the record, and therefore it does not appear whether Parker was liable as maker or as indorser, or when the note was made, or when it matured. There was no personal service of process upon him, nor did he enter his appearance in the case; the service was by publication. The judgment, reciting that it appearing to the court that the attachment proceedings therein were regular and in conformity to law, ordered the sheriff to sell the real estate attached. What that real estate was does not appear, and that it included the 17 lots can only be inferred from the fact that under the judgment and order they were sold with other real property and conveyed to the complainant. In August, 1878, this suit was brought by him, claiming title to the premises thus purchased, and alleging that the conveyance to Horbach by John A. Parker, Sr., in March, 1871, was made to hinder, delay, and defraud the latter's creditors; that the administration was taken under an agreement to manage and manipulate the estate for his benefit; and that the sales by the administrator were without consideration and fictitious, being in fact made for himself. It therefore prayed that the conveyance by Parker, Sr., to Horbach be adjudged void, and that the complainant be decreed to be the owner in fee of the property. The averments were traversed by the answer, which also set up the agreement to reconvey the 17 lots. A replication being filed, testimony was taken. The case was then referred to a master "to report on the law and facts as shown by the pleadings and proofs." He held and reported that, except as to the 17 lots, the purchases at the administrator's sale were valid; that as to them the complainant acquired title under his attachment proceedings; that the deceased, as to them, was mortgagee; that the deed of Parker, Sr., to Horbach was made when he was largely in debt to the complainant and others, and for the purpose of hindering, delaying, and defrauding his creditors, and that Horbach knew this; that the purchase of those lots by Kennedy at the administrator's sale was in good faith, but with notice that the title of the deceased was that of mortgagee only, and that hence no title was acquired; and that no title passed through Kennedy to Horbach because of like notice, and therefore the complainant was entitled to a decree to quiet his title. Exceptions were taken to the report, but they were overruled, and it was confirmed and a decree entered adjudging that the 17 lots were, at the commencement of the suit, the property of the complainant, and directing the defendant to convey the same to him, and, in default thereof, that the decree should stand in lieu of such conveyance, and that the defendant should be barred of all interest in the property, and deliver possession thereof to the complainant. From this decree this appeal is brought.

W. D. Davidge, for appellant. No counsel for appellee. *FIELD, J. There are several fatal objections to the decree in this case. In the first place, there is no evidence affecting the good faith of the sale and conveyance from Parker, Sr., to the defendant, in March, 1871. It was known that the deceased owed several debts, and as there were no personal effects, that the real property was liable to be sold for their payment. Under these circumstances, the price paid by the defendant is not shown to be inadequate. And there is no evidence that he had any knowledge of the debt of Parker, Sr., to the complainant. So, whatever may be suggested or surmised as to possible fraudulent intentions of Parker, Sr., in the conveyance, its validity cannot be questioned in the absence of any evidence of participation in them by the defendant. The fraud which will vitiate a sale must be

mutual; that is, must be intended by both parties, or by one with knowledge of the other's purpose, and thus acquiesced in and furthered. Here all such participation was wanting on the part of the purchaser.

In the second place, if the conveyance by the father to the defendant be treated as invalid, the title to the lots passed by the administrator`s sale, and the subsequent deed in pursuance of it. The master found that the purchase by Kennedy at that sale was in good faith, but was void because of his knowledge that the property was held by the deceased as mortgagee, and that the defendant acquired no title from Kennedy because of like notice. But the conclusion that the conveyance by the father to the son was a mortgage was a mere assumption, not warranted by the accompanying agreement. There was no obligation resting on the father to make the payments mentioned in that agreement and claim a reconveyance. He had an option to do so, and then he was not merely to repay the consideration given by the son, but in addition thereto he was to obtain a release of two bonds by him exceeding $3,000 in amount. Upon such release the vendee agreed to reconvey the lots for the original consideration and the expenses incurred on them. There were no extraneous facts shown to explain the object of executing the papers, such as a previous indebtedness of the father, or a liability on his part to secure the son against the bonds mentioned. Nor did it appear to whom the bonds were issued, nor for what consideration. Nor was it averred that the transaction was in any respect different from what the instruments imported-a sale to the son. The agreement can therefore be considered only as an independent contract to reconvey the lots on certain conditions. The assumption that the conveyance of the father to the son was a mortgage being unfounded, the objection to the purchase by Kennedy falls. That being valid, the deed received by him passed a good title, which he transferred to the defendant.

In the third place, there is no evidence that the complainant was a creditor of Parker, Sr., in March, 1871, when the conveyance was made to the defendant. The attachment suit was commenced by publication in August, 1877, and in December following judgment by default was rendered. This was more than six years after the conveyance. It does not appear when the alleged debt, upon which the attachment proceedings were founded, accrued. The allegation of the bill that Parker, Sr., was largely indebted to the complainant and others, and was insolvent when he conveyed to the defendant, is not sustained by the evidence. Indeed, there is no evidence in relation to his financial condition and means at that time. The testimony that he brought a summons in another suit against him to the office of the party who was then drawing the deed is contradicted; and, even had this been so, the fact would not militate against the validity of the transaction. He had a right to dispose of his property in the ordinary course of business for a valuable consideration, and the defendant had a right to purchase it. The complainant, not showing that he was at the time a creditor, cannot complain. Even a voluntary conveyance is good as against subsequent creditors, unless executed as a cover for future schemes of fraud.

So, in any way in which this case can be considered, the bill cannot be sustained. The decree must therefore be reversed, and the case remanded, with directions to dismiss the bill; and it is so ordered.