etc., 7 Ind. 172; Haynes v. State, 3 Humph. 180; Benford v. Gibson, 15 Ala. 521.

In Blake v. U. S., 103 U. S. 227, the fact is adverted to, and the opinion of the attorney general in Lansing's Case, 6 Ops. Atty. Gen. 4, quoted approvingly, to the effect that in this respect of official tenure there is no difference in law between officers in the army and other officers of the government.

Applying the above principles, it remains to say that we know of no instance in which their assertion is more imperatively demanded by the public welfare than in this case, and such others as this. If the position taken by the appellant is correct, then a logical and unavoidable result is, that our country, if ever we are so unfortunate as to be again involved in war, will be compelled, after the treaty of peace, to maintain the entire official force of the army and navy, and a host of sinecurists, in full pay so long as they shall live,-either that, or to disband the army and navy before the peace shall be made; even this wholly inadmissible alternative being legally possible from one of appellant's positions. It is impossible to believe that such a condition of affairs was ever contemplated by the framers of our organic or statute law. The effect of the authorities cited above is in no respect modified by section 1229 or by article 36 of section 1624 of the Revised Statutes. In the first place, if it were granted that those sections mean what appellant claims for them,—if they mean beyond question that one appointed as a cadet shall never be dismissed by authority of either the executive or the legislature, or by both in conjunction,-yet that fact would make no difference. The great question of protection to contract rights and vested interests, which forms such an interesting and important feature of our constitutional law, is not dominated by the turn of a phrase. Our courts, both state and national, look on these questions through the form to the substance of things; and, in substance, a statute under which one takes office, and which fixes the term of office at one year, or during good behavior, is the same as one which adds to those provisions the declaration that the incumbent shall not be dismissed therefrom. Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will, and one legislature cannot deprive its successor of the power of revocation. Butler v. Pennsylvania, supra; Stone v. Mississippi, supra; Cooley, Const. Lim. 283; U. S. v. McDonald, 128 U. S. 471, 473, 9 Sup. Ct. Rep. 117.

In the second place, section 1229 and article 36 of section 1624 of the Revised Statutes are a reproduction in the revision of the act of July 13, 1866, section 5, supra; and in Blake v. U. S., supra, the court decided that that act only operated to withdraw from the president the power previously existing in him of removing officers at will, and without the concurrence of the senate, and that there was no intention to withdraw from him the power to remove with the advice and concurrence of the senate. If that construction of the

statute be correct (and we see no cause for altering our view,) it necessarily follows that it was not intended to place an officer where he never before had been,-beyond the power of congress to make any provision for his removal, even by the executive who appointed him. It is claimed, however, that the construction so given to the act of 1866 was induced by the consideration of certain other statutes in pari materia, and that the reintroduction of it in the revision, unaccompanied by those other statutes, would render that construction inapplicable now. We do not think so. We have already considered the act of 1866 in its historical relations, and from the circumstances of its enactment, deduced its meaning. When it was re-enacted with all other statutes of general interest, the political exigency which furnished the primary motive for its re-enactment, had drifted away with the lapse of time; but we do not think it can avail to give to a statute which, after all, is but a re-enactment in the exact language of the original act, a meaning almost directly the reverse of that given to the original act. To give such effect to the action of congress in codifying the statutes would go far to subvert all decisions, and introduce chaos into our jurisprudence.

Thus far we have preferred to decide the case upon the broad grounds above stated, and therefore considered it as if the term of office enjoyed by the appellant was what he claims it to have been,-a term for life. In fact, however, even if that were true as to other officers, it was not true as to him. The statute applicable to his case is section 1520 of the Revised Statutes, which fixes the academic course at six years; and when he entered the service, under the regulations in such cases provided, he executed a bond to serve for eight years, unless discharged by competent authority,-thus recognizing his liability to be discharged.

As to the fourth proposition of appellant, that, in enacting the statute of 1882, congress assumed the power of appointment which belongs to the executive, we do not so regard the act. Congress did not thereby undertake to name the incum.bent of any office. It simply changed the name, and modified the scope of the duties. This, we think, it had the power to do. We think, too, that the appellant came within the terms of the act of 1882.

There

is a very plain distinction between this case and that of a cadet ngineer, fully explained in U. S. v. Redgrave, 116 U. S. 474, 6 Sup. Ct. Rep. 444. The statute in express terms provides that "the academic course of cadet midshipmen shall be six years. If the navy department had assumed to make any regulations by which the final graduation shall take place in less time, such regulations would have been void. But it did not so assume. It arranged for a twoyears course afloat as a part of the academic course, and exacted a preliminary examination to test the cadet's qualifications → therefor. But the cadet afloat was a mem-) ber of the academy. He still was subject* to a final examination at that institution, and, without such examination successful. ly sustained, never became a graduate. He

was not so denominated until then, either in the Naval Register or elsewhere; and it was not until that final test had been sustained that, either by the practice of the academy or by the provision of the statute, he did or could receive his certificate of graduation. The judgment of the court of claims is affirmed.

(134 U. S. 126)

BRYAN V. KALES et al.1
(March 3, 1890.)

ADMINISTRATOR'S SALES-CANCELLATION-PLEAD

ING.

A bill alleging that the property of plaintiff's decedent was sold on foreclosure in a suit brought by decedent's administrator, in his individual capacity, against himself as administrator, to foreclose mortgages held by him on the property, though he had at the time money in his hands as administrator sufficient to discharge the debt, and that defendants, subsequent purchasers, had knowledge of the facts, and praying for cancellation of the foreclosure sale and the subsequent sales, if filed within the period of limitation, is not demurrable for want of equity.

Appeal from the supreme court of the territory of Arizona.

This suit was brought by the appellant on the 18th of July, 1887, in the district court of the second judicial district of Arizona, and was there heard upon demurrer to the complaint. The demurrer was sustained, and, the plaintiff refusing to amend, the suit was dismissed. That judgment having been affirmed by the supreme court of the territory, the only question is whether the facts alleged in the complaint assuming, as we must, that they are true-set forth a cause of action entitling the plaintiff to relief.

The case made by the complaint is as follows: Jonathan M. Bryan was the owner at the time of his death, on the 29th of August, 1883, (1) of the S. E. 4 section No. 33, in township 2 N. of range 3 E., of the district of lands subject to sale at the landoffice of the United States at Tucson, Ariz., and of the Gila and Salt River meridian; (2) the N. E. of section 5, in township 1 N., of range 3 E., of the same district and meridian, and lying one-half mile north of the city of Phoenix, in Maricopa county, Ariz., such piece of land being once called the "Shortle Ranch," but now commonly known as "Central Place;" (3) The S. E. of section 9, in township 1 N., of range E., of the same meridian and district; and (4) all of block 98 in the city of Phoenix, according to a map or plat of that city made by William A. Hancock, surveyor of the town-site of such city, and on file in the office of the county recorder of Maricopa county.

On or about the 24th of September, 1883, letters of administration upon his estate were issued by the probate court of Maricopa county to M. W. Kales, who immediately qualified and entered upon his duties as administrator, continuing to be and to act as such until December 6, 1884, when he was discharged. Since that date there has been no administrator of the decedent's estate.

While Bryan was the owner and in pos1 Reversing 20 Pac. Rep. 311.

1

session of the above-described real estate, he executed to Kales four promissory notes for the amounts, respectively, of $1,200, $2,500, $1,500, and $500, dated December 11, 1882, February 23, 1883, February 26, 1883, and March 14, 1883, and payable, respectively, December 11, 1883, February 3, 1884, October 26, 1883, and September 14, 1883; each note calling for interest, payable every three monthis, at the rate of 15 per cent. per month, and, if not so paid, the note to become due and payable. At the date of each note, he executed, acknowledged, and delivered to Kales a mortgage upon real estate to secure its payment,upon the first of the above-described pieces of real estate to secure the note for $1,200; upon the second, to secure the note for $2,500; upon the third, to secure the note for $1,500; and upon the fourth, to secure the note for $500. These mortgages were all duly recorded.

Before the notes fell due, and before they were presented for allowance against the estate of Bryan in the probate court having jurisdiction thereof, and without application to any court for an order to pay the notes, or any of them, or to sell any property of the estate to pay them, and 'while holding in his hands as administrator sufficient money to pay all the principal and interest which might become due on said notes, or any of them," Kales, on the 28th of September, 1883, instituted, in the district court of the second judicial district of Arizona, in and for Maricopa county, in his individual name, an action against himself as administrator. He declared in that action upon the notes and mortgages, and prayed judgment against himself as administrator for the sum of $5,700, with interest on $1,200 of that sum from the 11th day of June, 1883; on $2,500, from the 23d day of May, 1883; on $1,500, from the 26th day of May, 1883; and on $500 from June 14, 1883,-the interest on each sum to be at the rate of 11⁄21⁄2 per cent. per month, with a like rate of interest upon the principal sum named in any judgment or decree that may be obtained from the date thereof until the same shall be fully paid and satisfied; and for 10 per cent. for attorneys' fees upon $4,200 of the principal sum, and 5 per cent. for attorneys' fees upon $2,500 of the principal sum; and for costs of suit.

He also prayed that the usual decree be made for the sale of the premises by the sheriff, according to law and the practice of the court; that the proceeds of sale be applied in payment of the amount due the plaintiff; that the defendant, and all persons claiming under him or his decedent subsequent to the execution of the mortgager upon the premises, either as purchasers, incumbrancers, or otherwise, be barred and foreclosed of all right, claim, or equi-* ty of redemption in the premises, and every part thereof; and that the plaintiff have judgment against the defendant, as administator of the estate of J. M. Bryan, deceased, for any deficiency remaining after applying the proceeds of the sale of the premises properly applicable to the satis. faction of the judgment, and that such deficiency be made a claim against the estate of the said J. M. Bryan, deceased, to

be paid as other claims against said es tate.

He further prayed that the plaintiff, or any other party to the suit, might become a purchaser at the sale; that the sheriff execute a deed to the purchaser; that the latter be let into the possession of the premises on production of the sheriff's deed therefor; and that the plaintiff have such other or further relief in the premises as to the court seemed meet and equitable.

A summons was sued out by M. W. Kales as an individual against himself as administrator, requiring the latter to appear and answer the complaint. It was personally served on the day it was issued, and, on the succeeding day, October 6, 1883, in his capacity as administrator, he made the following answer to the complaint filed by himself in his individual capacity:

"The defendant M. W. Kales, administrator of the estate of J. M. Bryan, deceased, answering the complaint on file in this action, admits each and every material allegation in the said complaint, and consents that judgment and decree be entered in accordance with the prayer thereof."

In other words, M. W. Kales consented that he might as an individual take judgment against himself as administrator.

On the 16th of October, 1883, the court, D. H. PINNEY being the judge thereof, rendered a decree of foreclosure and sale, finding, upon the complaint, answer, and proofs heard, that there was due to the plaintiff, M. W. Kales, from the defendant, M. W. Kales, administrator, the sums, with interest, specified in the several mortgages, with the attorney's fee provided for in the mortgages and claimed in the complaint, and directing the proceeds of the sale of each parcel to be applied to the debt secured by the mortgage on that parcel. *The decree further provided:

"That the defendant M. W. Kales, as administrator as aforesaid, and all persons claiming or to claim from or under him, or from or under the said J. M. Bryan, deceased, and all persons having liens subsequent to said mortgages, by judgment, decree, or otherwise, upon the lands described in said mortgages, or either of them, and they or their personal representatives, and all persons having any lien or claim by or under such subsequent judgment or decree, and their personal representatives, and all persons claiming under them, be forever barred and foreclosed of and from all equity of redemption and claim in, of, and to said mortgaged premises, and every part and parcel thereof, from and after the delivery of said sheriff's deed.

The remainder of the decree contains a description of the property or parcels of land covered by the respective mortgages.

On the 8th November, 1883, the district cour! made an order commanding the sheriff to sell upon notice all the property described in the mortgages, and make return thereof. Pursuant to that order, the sheriff, L. H. Orme, advertised, and, on the 15th of December, 1883, sold, the property in parcels, as follows: The first parcel to Robert Garside, for $1,500; the second, to M. W. Kales, for $2,975; the third, to William Gilson, for $1,850; and the fourth, to M. W. Kales, for* $600. The amount bid: for each parcel was much less than such parcel was worth in open market, or than it would have brought at the usual sheriff's sale. The sheriff delivered to each purchaser a certificate of sale. He made his return of sales on the 26th of December, 1883, but the sales have never been confirmed by the district court.

After the sales, and before the making of any deeds, Kales assigned to J. T. Simms the certificate of sale for the second parcel and to D. H. Pinney the certificate of sale for the fourth parcel. On the 16th of June, 1884, the sheriff executed a deed for the first parcel to Garside, who, by deed of May 20, 1887, sold and conveyed to J. De Barth Shorb. Simms, having received from the sheriff, June 10, 1884, a deed for the second parcel, sold and conveyed, by deed of February 28, 1887, to George T. Brasius, who subdivided it into blocks and lots as "Central Place," and subsequently. May 3, 1887, sold and conveyed one lot to John W. Jeffries, and, May 5, 1887, another lot to Henry W. Ryder. Gilson received a sheriff's deed for the third parcel June 19, 1884, and April 6, 1886, sold and conveyed to Cordelia L. Beckett, wife of C. G. Beckett. The fourth parcel was conveyed by the sheriff, June 16, 1884. to D. H. Pinney, who, September 10, 1886, sold and conveyed a portion thereof to the bank of Napa, a corporation existing under the laws of California. Another portion of the fourth parcel was conveyed by Pinney, November 18, 1886, to F. Q. Story, who sold and conveyed to M. H. Sherman.

Bryan left no descendants. His wife, Vina Bryan, survived him. All the property in question was acquired by him during marriage, and at the time of his death, the complaint alleges, was the common property of himself and wife, and upon his death she became and was his sole heir, and to her all the common property descended, and in her remained until June 29, 1887, when by deeds of conveyance she granted, released, and conveyed to the present plaintiff all of these lands, together with all her estate, right, interest, and claim in the same, and every part thereof.

The complaint makes all of the persons herein before named as having purchased at sheriff's sale, or received conveyances for these parcels of land, defendants to this suit. It alleges that of "all the facts herein alleged the defendants, and each of them,

at all the times herein mentioned, had full notices; that the defendant D. H. Pinney was the judge of the said district court, and acted as such in all the proceedings had in the said action, wherein said defendant M. W. Kales was plaintiff, and said M. W. Kales, as administrator of the estate of J. M. Bryan, deceased, was defendant; and said defendant D. H. Pinney rendered and made the said decree of foreclosure and order of sale therein and was so the judge of said district court at the time of the assignment to him by said defendant M. W. Kales of the sheriff's certificate of sale of said block number 98, in said city of Phonix, and also at the time of the execution and delivery to him by the said sheriff of the said sheriff's deed thereof."

The plaintiff, after alleging that the premises described in the complaint are of the value of $125,000, prayed

That the proceedings, judgment, decree, and order of sale had, made, rendered, or entered in the action brought by Kales be annulled, set aside, and declared void.

That the sale of the property, and the certificate of sale and deeds made to Kales, Garside, Gilson, Pinney, and Simms, be set aside and declared void, and the parts and portions of the property conveyed to the several defendants be decreed to have been received by them, and each of them, with notice and in trust for Vina Bryan and her grantee, the plaintiff herein.

That the defendants, and each of them, now pretending to claim or own the above property, or any part thereof, be decreed to hold the same and each part claimed by them, in trust for the plaintiff, and required to convey to him upon his doing whatever the court adjudged should be equitably done by him.

That the defendants, and each of them, be enjoined from selling, conveying, mortgaging, or in any way interfering with the premises. And

That the plaintiff have such other and further relief as may be just and equitable. Wm. A. McKinney, for appellant. Wm. Pinckney Whyte, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, 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 in Maricopa county at the death of her 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?" 20 Pac. Rep. 312.

The difficulty with this view is that it has no 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 seised, 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 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 complaint, 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. 393, 1 Sup. Ct. Rep. 350; Speidel v. Henrici, 120 U.S. 377, 387, 7 Sup. Ct. Rep. 610. But no such case is made by the bill. The limitation prescribed by the statutes of Arizon 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 lim. itation. If, as contended by the defendants, a court of equity may deny relief be

cause 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. 160; Hayward v. Bank, 96 U. S. 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 * instituted by Kales in his individual capacity and as to how far the validity of the decree of foreclosure and sale was effected 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 Ill. 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.

8. The fact that plaintiff did not include in the property described in his first bill certain land, which it is agreed was intended to be included in the deeds of trust, but which was omitted, does not estop him to assert a lien thereon in the subsequent suit, where, at the time of the first suit, the mortgagor had no title to such land, but acquires title afterwards.

4. It is not error to dismiss petitions filed by the mortgagor after hearing on the bill, alleging that plaintiff had previously begun an action on the notes secured by the deeds of trust; that at claimed a personal decree against him, under a the hearing petitioner first learned that plaintiff prayer for general relief, and that his personal liability on the notes was then barred by limitation; and praying that plaintiff be required to elect between his action at law and his claim for a personal decree for deficiency,-where it is not shown that the mortgagor was ever served with process, or appeared in the action at law, and where the principal notes were not barred at the time the bill was filed, and the mortgagor did not, in his answer to the bill, set up the statute of limitations as to any part of the interest or principal claimed.

5. Under Rev. St. relating to the District of Columbia, $ 808, providing that "the proceeding to enforce any lien shall be by bill or petition in equity, and the decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant," where the bill prays for general relief, a personal decree against the mortgagor for deficiency is proper, and it is discretionary with the trial court to refuse the mortgagor's petition that plaintiff be required to amend his bill so as to make it a bill for a personal decree.

6. Rev. St. relating to the District of Columbla, $ 713, providing that the rate of interest on judgments and decrees shall be 6 per cent., has no application, except as to the deficiency after sale, to the decree of foreclosure, fixing the amount due plaintiff on payment of which the decree shall not take effect, as the contract is not merged in the decree.

7. Where plaintiff's deeds of trust are a first lien on the larger portion of the property, and a second lien on the balance, and all the incumbrancers are parties to the suit and their claims are all past duc, and the property cannot be divided and sold separately without injury, plaintiff is entitled to have the whole property sold, and the proceeds applied to the incumbrances accordto priority. MILLER, J., dissenting.

(March 3, 1890.)

FORECLOSURE-RES ADJUDICATA-ESTOPPEL-DEFI

CIENCY DECREE.

1. A bill praying for the appointment of a trustee in place of trustees named in deeds of trust given to secure debts due plaintiff, with authority to execute the trusts, in which a decree is rendered appointing a trustee, and declaring that it is made "without prejudice to all other rights of defendant," but which decree is void for uncertainty, is no bar to a subsequent suit to foreclose the deeds of trust.

2. As the decree rendered in the first suit was void, plaintiff, by purchasing the land at a trustee's sale by the trustee appointed thereby, acquired no title constituting a cloud on the title of the grantor, and the dismissal of a bill by the latter to cancel the sale and the deed executed thereunder does not establish any title in plaintiff, so as to estop him, on the ground that he asserts the legal title in himself, to maintain the subsequent suit to foreclose, where he alleges that he brings it in order to obtain an undisputed title by foreclosure.

8. Where a receiver of the rents and profits of the mortgaged premises is appointed because of the mortgagor's insolvency and failure to pay taxes, insurance premiums, and interest, and his diversion of the rents from making such payments, and because the property is inadequate security for the incumbrances thereon, the court properly retains possession of such rents and profits to preserve them for the party found equitably entitled thereto.

Appeal from the supreme court of the District of Columbia.

Wm. F. Mattingly, Enoch Totten, and Henry Wise Garnett, for appellants. Nathaniel Wilson and Walter D. Davidge, for appellee.

BLATCHFORD, J. On the 1st of June, 1874, Alexander R. Shepherd and his wife made a deed of trust to Andrew C. Bradley and William H. Philip, conveying to them real estate situated in the city of Washington, in the District of Columbia, described in the deed as follows: "Part of lot number d two, (2,) in square numbered one hundred and sixty-four, (164,) and bounded and described as follows, viz.: Beginning at a point on North K street, forty

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