shall be duly waived on the part of such ap-|and service of such citation shall not be duly
pellees.
waived; and it is ordered that such citation shall
issue, if a request therefor shall be filed with the
clerk.

It is also urged, in the motion made by Thomas W. Ferry and others to dismiss the appeal in No. 181 from the decree of October 8, 1883, that this court has no jurisdiction of it, because the amount involved is not more than $5,000. The ground urged is that the amount involved, so far as that appeal by Richardson and Day is concerned, is only $2,173,91, which is the amount that Day, as assignee of Richardson, was directed to pay into court as having been overpaid on his claim.

As Richardson has died since the day these motions were argued, the order to be made will be entered nunc pro tunc, as of that day, February 4, 1889.

HENRY G. THOMPSON, Appt.,

v.

THOMAS G. HALL ET AL.

(See S. C. Reporter's ed. 117-122.)
Letters patent.

It appears by the master's report that he dis-
allowed the claim of Richardson as pledgee or
purchaser of 400 bonds other than the 200
bonds the claim to which was allowed to
Richardson. The amount of money involved
in the claim of Richardson and Day to these
400 bonds largely exceeds the sum of $5,000.
This claim is fairly brought up by their appeal
from the decree of October 8, 1883, because
that decree contains an express provision "that
the decree of May 3, 1883, entered herein, shall | Argued March6,7,1889. Decided March 18, 1889.
stand ratified and confirmed, except as the same
is changed and modified by this decree.'

Moreover, the circuit court, by reason of the

petition of Sickles and Stevens for a rehearing, and by reason of the rehearing which was had, did not lose its hold upon the fund to be distributed, nor part with its control of the cause, [116] until the decree of October 8, 1883, was made, so far as claims against the fund created by the sale of the mortgaged property were concerned. That decree contained a provision that persons having claims against such fund, whether evidenced by bonds, coupons or otherwise, should present the same to the court within five days from the date of that decree, and that, in default thereof, the clerk should distribute to the parties the moneys in his hands.

These provisions save the appeal of Richardson and Day from the decree of October 8, 1883, as to amount, and enable them to have adjudicated by this court, on the hearing of that appeal, at least their claim in respect of the 400 bonds not allowed to them.

It is also objected, on the motion to dismiss made by Thomas W. Ferry and others, that, in the order of November 17, 1883, allowing an appeal to Richardson and Day from the decree of October 8, 1883, the appellees are not named; but it is stated only that "The other parties of said cause, original and intervening (as appearing in the said final decree)," are "appellees." But the bond on such appeal, filed November 28, 1883, is given to the clerk of the circuit court for the use and benefit of twenty-five appellees, naming them, and among them are by name the five appellees by whom the motion on that ground is made. We think the objection is not a good one.

Upon the evidence in this case, held, that Johnson
was not the first inventor of the combination

claimed in the patent issued to the plaintiff, as as-
signee, for an improvement in cutting-pliers.
[No. 186.]

APPEAL from a decree of the Circuit Court

of the United States for the Eastern Dis-
trict of New York, dismissing a suit, for the
alleged infringement of letters patent No. 232,-
975, granted October 5, 1880, to the plaintiff,
as assignee of the inventor, Moses C. Johnson,
for an improvement in cutting-pliers. Affirmed.
See 8. C. below, 25 Fed. Rep. 906.
The facts are stated in the opinion.
Mr. Horace Barnard for appellant.
Mr. Amos Broadnax for appellees.

Mr. Justice Blatchford delivered the opin-
ion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Eastern District of New York, by Henry G. Thompson against Thomas G. Hall, J. F. Oliver, Samuel Leopold, and David L. Harris, for the alleged infringement of letters patent No. 232,975, granted October 5, 1880, to the plaintiff, as assignee of the inventor, Moses C. Johnson, for an improvement in cutting-pliers, on an application filed June 2, 1880.

The specification, 'drawings, and claim of the patent are as follows:

"This invention relates to cutting-pliers, and is an improvement on that class of pliers represented in United States patent No. 209,677, dated November 5, 1878, granted to T. G. Hall, to which reference may be had. In that invention, either of the two hand-levers may be turned on its pivot without turning the other; and the tool-body formed by the face or covering plates is permitted to vibrate, or turns more or less, with relation to the handles, and the central space between the cutting-faces of the jaw-levers, when the pliers are taken in the hand to be used, drops more or less out of line with the central line of the handles, making, as it were, a loose joint midway between the ends of the pliers.

It results from these views that the appeals in
No. 947, No. 1027, and No. 1074 must be dis-
missed; that the appeal in No. 181 from the
decree of May 3, 1885, must be dismissed; and
that the motion to dismiss the appeal of Richard-
son and Day, in No. 181, from the decree of "One of the objects of my invention is to
October 8, 1883, must be granted, unless the ap- construct a stiff pair of pliers, or pliers in
pellants therein shall procure to be issued and which the hand and jaw-levers shall each be
served on the appellees therein a citation from compelled to move positively in an opposite di-
this court, in the terms before set forth, return-rection to the movement of its fellow, or a pair
able at the next term thereof, provided the issuing of pliers in which the tool-body shall not of it-

[117]

[118]

[119]

self swing or vibrate upon the pins or studs
holding the hand-levers."

"In order to move the jaw-levers equally at
all times and prevent the jaw-levers and body
"In the patent above referred to, the end of of the pliers turning on the handles, I have
wire or other thing cut off by the cutters drops provided one hand-lever with a prong, m, hav-
into and injures the spring that opens the jaw-ing a rounded end that enters a rounded notch
levers. This I obviate by providing each jaw-in the opposite lever. This one prong and its
lever with a lip to cover or bridge the space be-
tween the jaws, as the jaw-levers are closed.
"My invention consists in the combination
and arrangement of parts for effecting these
ends, as hereinafter specified and claimed.
"Figure 1 represents, in side elevation, a pair
of cutting pliers containing my improvements;
and Fig. 2, a like view with one of the body or
side plates removed.

a

Fig. 1.

Fig. 2.

m

"The body of the pliers is composed of two side plates, a b. These side plates are fixed together by the screws 2 3 4 5. Of these screws, those 2 3 are the fulcra of the jaw-levers e d, having at their ends the usual cutters or cuttingsurfaces c' d'. Each of these jaw-levers has a lip, 7, and the end of one meets the end of the other lip just as or just before the two cutting edges c' d' separate the wire or other metal end to be cut off by them, thus closing the space between the said jaw-levers and side plates, in which is placed the spring f, and preventing the entrance into said space of hard pieces of wire or other articles that would clog the pliers. These lips also serve another essential purpose-viz.; that of holding the ends of the spring from displacement, and obviating the employment of a separate pin or stud to hold the said spring at one end, as heretofore com

notch are always in engagement, and so con-
nect the two levers that the body of the pliers
cannot vibrate on the screws 4 5, but, on the
contrary, the two levers may turn each on its
own pivot, both levers always turning the same
distance, but in exactly opposite directions.
This connection between the two hand-levers,
as described, insures a stiff pair of pliers, that
can be handled more readily and accurately
than the old form of cutting-pliers referred to,
and which are more positive as to the move-
ment of the cutting-jaws.

"I am aware, in bolt-cutters, where the short
ends of the hand-levers are jointed with the
long ends of the cutting-jaw levers, that a series
of teeth or cogs have been interposed to cause
the hand-levers to be geared together; but in
such bolt-cutters one single tooth and notch
would not operate to always keep the two hand-
levers locked together as to their movement in
unison, as is the case with my one prong, m,
rounded at its end and inserted within a round-
ed notch. I claim-

"The body composed of the side plates a b, the independent fulcra 2 3 4 5 for the jaw-levers and hand-levers, the jaw-levers provided with cutting edges and with lips e, and the handlevers having short arms g' h', and a prong and notch always in engagement, as described, combined with the V-shaped spring, held, as described, by the lips of the jaw-levers, all as and for the purpose set forth.'

[120]

One of the defenses set up in the answer is, that Johnson and Thompson surreptitiously obtained the patent in fraud of the rights of the defendants; that the defendants are trustees and directors of a New York corporation, known as the Interchangeable Tool Company; that that corporation was organized in August, 1878, for the purpose of manufacturing cutting-pliers or nippers, under letters patent No. 209,677, granted to the defendant Hall, November 5, 1878; that Hall invented certain improvements upon such pliers, and immediately described and explained them to the officers of the company; that the company thereupon caused a model of them to be made, embracing such improvements; that Johnson was employed to make such model pliers for the company, and made them for the company while in its employ, and under the direction of Hall; that Johnson was in the employ of the company, in making such pliers, from April 20, 1879, until May 1, 1880, during which time the company [121] made and sold upwards of 30,000 of such pliers, with the knowledge and consent of Johnson, and without any objection on his part, and without notice that he claimed to be the inventor of the whole or any part of such pliers, or intended to apply for a patent for the same; "The screws 4 5 serve as the fulcra for the that Hall was the first and original inventor of hand-levers gh, having short arms g' h', to act said original cutting-pliers and of said improveupon the ends of the longer arms of the jaw-ments thereon, and assigned to the company levers and turn them on their fulcra to close the jaws and bring the cutting-edges together. The spring f opens the jaws the instant the clasping pressure on the hand-levers is relaxed.

mon.

the whole of the patent of November 5, 1878,
immediately on its issue, and also the whole of
the said improvements upon such cutting-pliers;
that Johnson, after so being in the employ of

[122]

the company for one year, was dismissed from
its service, and thereupon, as the result of a
conspiracy between Thompson, Johnson, and
one Gustam, Johnson falsely claimed that he
was the first and original inventor of said im-
provements, and applied for a patent therefor,
and sold his pretended claim to the invention to
Thompson; and that Johnson, without the
knowledge of Hall, or of the other defendants,
or of the company, applied for a patent for said
improvements, falsely alleging that he was their
first and original inventor, and surreptitiously
obtained said patent No. 232,975, for said in-
vention of Hall, and for an improvement upon
the pliers so patented November 5, 1878.

There was a replication to this answer, proofs
were taken, and the circuit court entered a de-
cree dismissing the bill, from which the plaintiff
has appealed. In its opinion (25 Fed. Rep. 906)
the circuit court stated, that the question at is-
sue was whether the combination covered by
the claim of the plaintiff's patent was invented
by Johnson while he was an employé of the
corporation; that the plaintiff had sought to
prove that a model produced by him, known as
Exhibit C, was made by Johnson while he was
in the employ of the company; that, on the
other hand, the defendants had sought to prove
that that model was not made by Johnson
while he was employed by the company, but
after he had been discharged from its employ,
and for the purpose of supporting a fraudulent
claim to an invention really made by Hall, and
which claim had been put forth by Johnson
for the first time after he had been discharged
from the service of the company; and that,
upon a full consideration of all the evidence,
the conclusion of the court was, that Exhibit
C was not made while Johnson was a workman
for the company, but was made subsequently
to his leaving its employment, and that he was
not the first inventor of the combination claimed
in the patent issued to the plaintiff.

The testimony is voluminous and contradictory; and, without discussing it, it is sufficient to say that we are of opinion that the evidence establishes the conclusion reached by the Circuit Court, and that the decree must be affirmed; and it is so ordered.

through means or under circumstances which ren-
der it unconscientious for the holder of the legal
title to retain and enjoy the beneficial interest, eq-
uity impresses a constructive trust on the proper-
ty thus acquired, in favor of the one who is truly
and equitably entitled to the same.
3. A court of equity has jurisdiction to reach the
property, either in the hands of the original wrong
doer or in the hands of any subsequent holder, un-
til a purchaser of it in good faith and without no-
relieved from the trust.
tice acquires a higher right and takes the property

4. The breach of a parol promise as to an interest
in land does not constitute such fraud as will take
a case out of the Statute of Frauds.
5. When one makes a deed of land, covenanting
therein that he is the owner, and subsequently ac
quires an outstanding and adverse title, his new
acquisition inures to the benefit of his grantee, on
the principle of estoppel.

6. It is only when an oral agreement is clearly
and satisfactorily proven by testimony above sus-
picion and beyond reasonable doubt, that it will be
enforced to establish rights in land at variance
with the muniments of title.

7. Where there is enough in the bill to warrant
the relief, and the defendants could not have been
taken by surprise, the decree should not be reversed
on the ground that the allegata and the probata do
not sufficiently agree to justify it.
balance of the purchase money, but the case shows
8. Where there is no offer in the bill to pay the
that a tender would have been but an empty show,
and the court has power to require its payment,
the allegation is merely formal and immaterial.
[No. 700.]
Submitted Jan. 2, 1889. Decided March 18, 1889.

APPEAL from a decree of the Circuit Court
of the United States for the Western Dis
trict of Michigan, compelling a conveyance of
lands to complainants, and for rents and profits
from the date of filing the bill. Affirmed.

[123]

Statement by Mr. Chief Justice Fullor: Appellees, the widow and heirs of John Monroe, deceased, filed their bill against Nathaniel D. Moore and Helen Moore, to compel a conveyance of the one undivided sixth part of one hundred and sixty acres of mineral land in Ontonagon County, Michigan, which had been located by Nathaniel D. Moore, under an agree ment with James H. McDonald and John McKay, that Moore should have a one third interest in consideration of his services in prospecting for land having iron ore, and selecting and locating that in question. It was upon Moore's application that the patent was issued from the state land office at Lansing, in January, 1875, [124] to McDonald and McKay, the purchase money

[122] NATHANIEL D. MOORE ET AL., Appts., being furnished by them and paid over by

V.

1. Where a person has received a conveyance of
land, and conveys the same to another with cove-
nant of warranty, and subsequently induces his
grantors to convey the same lands to his wife, on
the destruction or loss of his own deed, for the
avowed purpose of avoiding the deed he had given
to such other person, the wife, being fully advised
of the purpose and paying no consideration for the
conveyance, is to be treated as a party to the fraud,
and held as trustee ex maleficio; and she may be
compelled to convey to her husband's grantee.
2. Whenever the legal title to property is obtained

him.

By the testimony of Moore and McKay it was established that Moore was to have a one third interest, while McDonald admitted that he was to have an interest, but was uncertain whether it was to be one third or one fourth.

One McIntyre testified that the agreement between Moore, McDonald and McKay was in writing and signed in his presence by McDonald and McKay, but he was not sure whether Moore signed it or not. The execution of such an agreement was denied, and the circuit court considered McIntyre's testimony too indefinite as to its terms to warrant proceeding upon it.

On the 18th day of October, 1875, Moore, who was then unmarried, executed and delivered to John Monroe a deed in fee simple, with covenants of seisin, against incumbrances, and of general warranty, for an undivided one sixth interest in said lands, which was duly recorded

[125]

Palmer v. Sterling, 41 Mich. 221; Weare v. Linnell, 29 Mich. 224; Garfield v. Hatmaker, 15 N. Y. 475; Everett v. Everett, 48 N. Y. 218; Stebbins v. Morris, 23 Fed. Rep. 360.

Principles upon which courts of equity act are well settled.

Bond v. Hopkins, 1 Sch. & Lef. 413, 429; 1 Pom. Eq. Jur. 49.

An equitable estate requires the simultaneous existence of two estates or ownerships in the same subject matter-the one legal, the second equitable.

1 Pom. Eq. § 147.

If A voluntarily conveys land to B, who verbally promises to hold the property in trust for C, the case falls within the statute, and chancery will not enforce the promise.

Lantry v. Lantry, 51 Ill. 458; Brown, Frauds, SS 94, 95, 437; Walker v. Hill, 21 N. J. Eq. 202; Perry, Trusts, § 181; Hoge v. Hoge, 1 Watts, 213; 2 Pom. Eq. Jur. § 1014.

December 20 1875. The consideration was No trust arises by implication where a grant-
two hundred and fifty dollars, of which Monroe or makes a voluntary conveyance.
paid ten dollars in cash, and for the residue
gave his promissory note to Moore, payable
one year after its date. Moore informed Mon-
roe at the time, that he had arranged with Mc-
Donald and McKay for a one third interest,
and that the deed was then probably made out.
Pursuant to their agreement McDonald and
McKay, some time in 1875, executed a deed to
Moore for a one third interest in the land, which
was deposited with one Viele to be delivered
to Moore when McDonald and McKay should
direct. McDonald testified that Moore was
indebted to him, and he wished delivery de-
layed until the debt was arranged and satisfied,
which was finally effected in 1877. Moore
does not seem to have known about the execu-
tion of this deed, and it appears to have been
subsequently lost. McDonald and McKay
never denied Moore's right to his interest, but
always admitted it, and McDonald testifies that
it was understood that Moore should have the
interest any time he called for it. In Decem-
ber, 1880, McDonald and McKay conveyed an
undivided one third interest in the land to
Helen Moore, wife of N. D. Moore, who re-
quested the conveyance to be made to his wife
for the express purpose, as he admitted, of de-
feating the deed he had previously given to Where a contract, void under the statute,
Monroe for one sixth of the land. Monroe has been executed upon one side, and the other
died intestate in Colorado in August, 1878, and party has accepted the money or benefit re-
Moore, knowing that his deed to Monroe had sulting to him from such performance, an ac-
been recorded, expected Mrs. Monroe would tion will lie against him for the value thereof
make trouble. No consideration passed when upon the common counts in assumpsit.
McDonald and McKay executed and delivered Scott v. Bush, 26 Mich. 418; Sutton v. Row
this conveyance, and Mrs. Moore was not pres-ley, 44 Mich. 112; Liddle v. Needham, 39 Mich.
ent when it was executed; but she had been in-
formed by her husband that it was to be made
to her, and had full notice of his deed to Mon-
roe. Since the conveyance to, Helen Moore,
N. D. Moore has substantially managed the
property as if it were his own.

Further reference to the pleadings and evidence is made in the opinion. Hearing having been had upon bill as amended, answer, replication, and proofs, the circuit court, Judge Sage presiding, delivered its opinion, which is reported in 28 Fed. Rep. p. 824, and decree was thereupon entered for conveyance to complainants as prayed, and for rents and profits from the date of the filing of the bill, less the amount due on the two hundred and forty dollar note, from which decree this appeal was prosecuted. Mrs. Moore having died pending the appeal, Nathaniel D. Moore, Jr., her sole heir at law, and John McKay, administrator of her estate, were made coappellants with Nathaniel D. Moore.

Messrs. Dan H. Ball, Irving D. Hans-
com and John F. Dillon, for appellants:
Complainants must stand or fall by the case
made by the bill.

Kelly v. Kelly, 54 Mich. 30; 2 Dan. Ch. Pl.
& Pr. 1037 and cases cited; Piatt v. Vattier,
34 U. S. 9 Pet. 405 (9:173); Pom. Cont. § 323.
Agreement must be complete in itself.
Pom. Cont. § 145.

The statute covers every case where an inter-
est in land is devested.

Whiting v. Butler, 29 Mich. 144; Trask v.
Green, 9 Mich. 366; Groesbeck v. Seeley, 13
Mich. 345; Bumpus v. Bumpus, 53 Mich. 346.

A contract void under the Statute of Frauds is a mere nullity.

Scott v. Bush, 26 Mich. 421; Raub v. Smith, 61 Mich. 543; Glass v. Hulbert, 102 Mass. 24; Dung v. Parker, 52 N. Y. 494; Dunphy v. Ryan, 116 U. S. 491 (29: 703).

147.

A contract void under the Statute of Frauds, cannot be used for any purpose whatever.

Chamberlain v. Dow, 10 Mich. 319; Hall v. Soule, 11 Mich. 494; Holland v. Hoyt, 14 Mich. 238; Grimes v. Van Vechten, 20 Mich. 410; Kelly v. Kelly, 54 Mich. 48.

The holder of a good title clothes his grantee with the rights, and conveys to him the same title, which he himself holds.

East v. Pugh, 71 Iowa, 162; Peckham v. Balch, 49 Mich. 179; Hutchins v. Hutchins, 7 Hill, 104.

Equity will not enforce a written agreement for sale of land which has been abandoned by parol by the party seeking performance. King v. Morford, 1 N. J. Eq. 274; Maxfield v. Terry, 4 Del. Ch. 618.

A person who assents to the transaction is bound.

Truesdail v. Ward, 24 Mich, 117; Peake v. Thomas, 39 Mich. 589; 2 Pars. Cont. 191.

A covenant warranty of title was not equivalent to a covenant for further assurance.

Krumbaar v. Burt, 2 Wash. C. C. 406; Bouv. Law Dict. title, Covenant; 1 Pom. Eq. SS 63, 424, 378-384.

Every bill must show that the complainant has a right to the relief demanded.

1 Dan. Ch. Pl. 360. Substantially the same case must be proved as that stated upon the record.

2 Dan. Ch. Pl. & Pr. 1037 and cases cited; Cox v. Cox, 26 Pa. 375; Bomier v. Caldwell, 8 Mich. 463; Tilden v. Streeter, 45 Mich. 541; Piatt v. Vattier, 34 U. S. 9 Pet. 405 (9:173);

[128]

Van Rensselaer v. Kearney, 52 U. S. 11 How.pressive, by intent or immediate consequence, 297, 325 (13: 703).

Laches cannot be imputed to infants.
Dragoo v. Dragoo, 50 Mich. 575; Tyler, In- as a mere volunteer, assisting him to perpetrate
fancy & Coverture, 159.

[129]