George Shiras, Jr.

“ Robert W. Hyman, as a member of several firms doing business in the city of New York, and in Norfolk, Va., bacame indebted to the Exchange National Bank of Norfolk, Va., in a large sum of money, and, in order to secure said bank, procured from the trustees and executors of the estate of Edward Mott Robinson a declaration of trust, and an agreement that they would hold the proceeds, to a certain amount, that might be derived from the sale of said lands, and deliver the same to the Exchange National Bank of Norfolk, Va., as security for said indebtedness. ”

“ It denies that there were any agreements by which it was understood or agreed that Peters, as receiver, should bid at such sale as if in competition with Bogue; denies that Peters and Bogue have abused the process of the court, or been guilty of fraud, collusion, or deceit in any of their acts in relation to the sale, which could have misled the objectors, or deprived any one of the opportunity of bidding at the sale. ”

“ Eq. Pl. 233, and Story, Eq. Pl. § 698, to the effect that if, upon argument, the benefit of a plea is saved to the hearing, it is considered that, so far as appears to the court, it may be a defense, but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true; and the court, therefore, will not preclude the question. See, also, Hancock v. Carlton, 6 Gray, 54.
How far, then, do the facts alleged in the plea, and determined in their favor, avail the defendants in law and equity? ”

“ Besides pleading the decree of the state court as a bar, under the principle of res adjudicata, the defendants in error contend that, on the facts as found, the plaintiffs in error are entitled to no equitable relief. ”

“ The plea alleges that from this decretal order Henry A. Barling, as executor, and Barling and Mandell, as trustees, and Hyman, as administrator, jointly and severally, pray an appeal to the supreme court of the state of Illinois, and that in March, 1890, the case was argued before the supreme court, and taken under advisement, and is now pending there in, and that Bogue has already paid to the said Bass the amount necessary to be advanced upon the sale of the said property, and Bass has executed and delivered to one Grant, the assignee of said Bogue, a deed for the said premises. ”

“ The petition asked that the persons named, and particularly George M. Bogue, the purchaser, should be compelled to answer, and that the matter should be referred to a master in chancery to hear the proof of both parties, and to make due report to the court. ”

“ It is understood that unless said Bogue & Hoyt, or a member or representative of said firm, shall become the purchaser of section 21, township 39 north, range 1 east of the third principal meridian, at such sale, and the premises shall be struck off to them, and such sale afterwards confirmed by said court, this agreement shall not be binding upon either of the parties hereto, and the sum of money paid as aforesaid on account of said purchase shall be returned to said Bogue & Hoyt. ”