waived, this bill is, in that particular, a bill of discovery, and demurrable on that ground also. If the United States desires to enforce the penalties-the forfeiture of the money paid and the land putented-provided for in section 2262, Rev. St., cited, it must proceed in some appropriate mode at !:1w, where the defendant will be entitled to a trial by a jury of the question as to giving false testimony. In mj.judgment the demurrer should be 6ustained and the bill dismissed; and it is 80 ordered.
and others v,
CHARTER OAK LIFE
(Circuit Oourt, D. Iowa.
TIEVfEw-TDIE OF FILING. A bill of review for errors apparent upon the face of the record will not lie after the time within which a writ of error could be brought. Where it is not made to appear that complainant was prejudiced by a supplemental decree, relief hr injunction cannot be granted because of matters contained in such decree.
SAME-PARTIES BOUND BY HECORD.
Th!, parties to a suit in equity are bound by matters of record, and cannot be heard to complain that they were not adviseu of the contents of a decree passed in such suit, in time to appeal therefrom or take other steps to have such decree set aside or reversed.
In Equity. Cole cC- Cole, for complainants. Nourse J; Kauffman, for respondents. MCCRARY, J. So far as the original decree is concerned, this is a bill of review, brought for the purpose of reversing or modifying said decree, by reason of errors appearing upon the face thereof. These errors are stated in the bill to be(1) In this, that interest was calculated upon the several bonus sneu on at the rate of '10 per cent. per annum, whereas, under the laws of Iowa, said complainants were not entitled to any interest thereon, because of the fact that there was usury embraced in the said seyeral bonds. (2) In tbat Ly the laws of Iowa the said Tavlor and wife were entitled to haye said real estute 80111, subject to thdr riglit to rel!eem the same at any time within one year after the sale. anll said decree did not resen-e this right, whereby they ,,-ere greatly prejlHliced.
It is insisted bv the defense that this bill of review, considered as a bill to modify annul the original decree, is filed too late. This position is manifestly well taken. A bill of review is in the nature of a writ of error, and its object is to procure an examination or alteration or reversal of the decree made upon a former bill which has been signed and enrolled. Story, Eq. PI. § 403. "A bill of review for errors apparent upon the face of the record will not lie after
TAYLOR V. CHARTER OAK LIFE INS. CO.
the time within which a \\Tit of error cOllld be brol1ght; for conrts of equity govern themselves in this particular uy the analogy of tlle common law in regal'd to writs of error." Story, Eq. Pl. § 410; Thomas v. Harvies' Heirs, 10 Wheat. 146; Ricker v. Powell, 100 U. S. 109; Pacific It. Co. v. Miss'ouri Pacific ny. Co. 2 McCrary, 228 . . It is apparent from these authorities that the original decree of ioreclosure cannot be attacked in this proceeding. It must stand as fmal. It did not provide for redemption, bnt it was not void on that account. It may have been erroneons, and the error might have been corrected, either upon appeal within two years or by the filing of a bill of review withm the same time. As neither was done within the time it stands now as a tinal adjudication. Such being the case, can the complainants have an ll1junction by reason of anything which appears upon the face of the supplemental decree? . . b9cause their complaint rests entirely upon the allegaClearly tion that the proper provision was not made by tne supplemental decree for the redemption of the property sold under the original decree. Inasmuch as at the time that they filed their bill of review their right of redemption had been absolutely lost, unless it be derived from the supplemental consent decree, it is clear that they were not injuriously affected by that decree. Whatever provision it contained upon the subject of redemption was in the interest and for the benefit and advantage of the present complainants. If their prayer should now be granted and the supplemental decree, so far as the provisions therein contained respecting redemption, were abrogated, it would leave them concluded by the original decree and altogether deprived of the right of redemption. So far as the provisions contained in the hill charging fraud concerned, they all relate to the action of Barcroft, as the attorney of complainants, in consenting to the supplemental decree, and especially to the provisions in relation to redemption. As these provisions are all in the interest of complainants, they cannot be held to have been fraudulent as to them. Besides, I am s.ltisfied that the evidcLce does not show any intent on the part of Barcroft to defraud, nor does it show to my satisfaction that he acted without authority. If it \\'ere necessary to decide that question, [ should hold that Barcroft acted in good faith and with the knowledge and consent at least of complainant J. C. Taylor, who, it may ll:Lye been reasonably assumed, represented his wife's interest as \\'ell as his own. The charge of fraud, therefore, must be eliminatecl from the case; and this being done, the bill, considered as tt b:11 of reyiew to modify or reyerse both the original and supplemental decrees, stands merely as a bill of review upon the errors apparent upon the face of the record; and, so considered, it is fi:ecl too late to reach eyen the supplemental decree, which was rendered Xoycmber 1, 1878, while the present bill of reyiew was filed in ilIay, 10581, after the period for an
appeal from either the original or supplemental decree had expired. If, however, it be conceded that the charge of fraud is established as to the supplemental decree, and that the arrangement therein specified with respect to redemption was unauthorized and void, as I have already said, this would leltve the original decree ordering a sale of the premises without redemption in full force to fix and determine the rights of the parties. When the bill of review was filed, both the original and supplemental decrees had by lapse of time become final and conclusive, unless attacked for fraud, and as to the original decree, no attempt bas been made to charge fraud. It is said that Taylor and wife were not advised as to the terms of the supplemental decree respecting redemption until after the year had expired. If this were proved (I do not think that it is) it would not avail them, for they were bound to know what was done and spread upon record in a case to which they were parties. Putnam v. Day, 22 Wall. 60. Whether the complainants have any cause of action against the respondent on account of a misappropriation of the proceeds of the crops grown upon the place during the year given for redemption, need not now be considered. It is enough for the present that I hold that the complainants have not shown themselves entitled to an injunction. In reaching this conclusion, I have not conside;:ed the question whether it was necessary for the complainants to obtain the leave of the court to file this bill of review, nor whether it was necessary that they should have performed the decree before being heard. See Ricker v. Powell, 100 U. S. 107,108, and cases cited. Motion for injuIlction denied.
(Circuit Court, D. Oregon.
August 13, 1883.
HWUT TO SUE POJ,ICY OF A policy of insurance against fire. issued by the defendant. provided that a loss thereunder should be payable GO days after proof thereof; and that a suit for the recovery of any claim under the policy should be brought within 12 months after the loss occurred. II eld. that the 12 months did not commence to run until the loss "Was due and payablc--the expiration of the 60 days after the proof of the same.
uF POLICY AFrER A FITIJ':.
A clause in a pol:cy that the he void if assigned after a fire. is lleg'd. and s.,c, is Yal;d, and caiTies with it the risht to rna nl:lin a 'sait to correct a nllstak:J therein. 3.
:llrsTAKE OP, IX EQUITY.
The own('rs of a warehouse, being inllel,tecl tLl the plaintiff, agreed to insure the ,arne against tire for his l'cnefit, and accord!nglyagreed WIth the defendant for such insurance in their names, with loss payable to the pbintitI, lmt ;,y m:stake the plaintiff's name was written In the policy as the assured and owner of the property. A loss "ccurred within the perioa of the risk, and after proof of loss by the owners, and adjustment by the defendant, the former assigned polic)' and their rigllts thereunder to the plallltlfI. lleld, On demurrer, that