402

ants' property to the pUI'poseofa public street, or:for the extension of Woodruff avenue, upon making ol'providing just cowpensation in money for the property so to beapproprlated, and damage to their remaining property; but that said common council, and the city of Toledo, its agents, officers, and attorneys, should be restrained and enjoined from enforcing or attempting to enforce so much and such portion of said ordinance as relates to the assessment therein, and thereby made on the remaining property of complainants. f\uch an injunction is accordingly awarded and decreed in favor of complainants. The costs of the case will be taxed against the city of Toledo, for which execution as at law may issue.

ALLEN et al.

'11.

FAIRBANKS.

(Circuit Oourt, D. Vermont. October 16, 1888.)
ExECUTORS AND ADMINISTRATORS-FOREIGN ADMINISTRATORS-ACTIONS.

Personal representatives. appointed in Missond. cannot sue for assets of their testator's estate. situate in Vermont. such assets being recoverable only by personal representatives deriving authority within that jurisdiction.1

In Equity. Daniel Roberts, for orators. Henry a. 1de, for defendant· . WHEELER, J. This bill is brQugh't to compel contribution among shareholders of a private corporation. Two of the orators, each seeking relief for himself alone, one seeking relief for himself with another jointly, and the defendant, have died. Personal representatives of the individual orators, appointed in Missouri, and the survivor of the joint one with the others, have brought scire facias against the personal representatives of the defendant in Vermont to revive the suit. The df>fendantshave pleaded to so much of the 8cire facias as is brought in behalf of these representatives, and this survivor, denying their right to proceed with the case, and the plea has been argued. The bill proceeds upon the ground that the defendant had in his hands money or property which in equity and good conscience belonged to the orators, respectively. This money or property constituted assets of the estates of these testators in Vermont. Such assets could only be recovered by personal representatives deriving authority from within that jurisdiction. Wilkins v. Ellett, 108 U.S. 256, 2 Sup. Ct. Rep. 6410 This is not contrary to the decision in Purple v. Whithed, 4.9 Vt. 187, relied upon in , behalf of these foreign representatives. In that case there were no assets of the estate of which the plaintiffs were administrators, in Vermont.
'As to the right of personal representatives to maintain an action to recover assets in a foreign jurisdiction, see Gove v. Gove, (N. H.) 15 Atl. Rep. 121, and note. '

V.

lIOUCK.'

403

The plea appears to be sufficiel1t as to these administrators. The which belonged to the two jointly, at the death of one, however, survived to the other, and remains in him to be prosecuted. Their right is recognized and provirled for· by the statutes. Rev. St. U. S. § 956. Plea allowed as to executors in Missouri, without prejudice to administration in Vermont, and overruled as to the survivor and others.

FRAKER tl. HOUCK

et al.

(Circuit Court, D. Kansas. October 16,1888.)
MOB'1'IJAGES-DEEDS OF TRUST-Bn,J,s TO REDEEM-LACHES.

While complainant was confined in the penitentiary. for violation of the na· tional bank act. the trustee, under a deed of trnst to secure complairiant's in· debtedness to the bank. of whicb he had been president, &old the property to purc.hasers. who in good faith paid full value, the proceeds being applied to the debt, of which th,'y paid only a sOlall part. Complainant was pardoned within a few months after these sales. and, although he kuew of them. and that the purchusers, supposing they had good title, were making improve· ments oIi the premises, he did not until more than seven years afterwards give any notice that he had any claim to them; paying no taxes, nor offering to pay any; nor taking other step to assert his rights. Complainant contends that. because of 'his imprisonment at the time ot the conveyances, they were, under statutI'S, absolutely void, and that, as the trust deed gave nopower.6f sale without a clecree establishing the debt. he is in the position of a mortgagor out of possession, and entitled to redeem. lleld, that the claim must be adjudged stl\le. .

In Equity.

Bill to redeem realty from a deed oftrust. On demurrer. L. H. Waters, Goo. H. English, and Goo. W.McOrary, for complainant. W. W. Scott, SlU88 & Stanley, and A. L. Redden, for defendants.

JhEWER, J. This is a bill brought by complainant to redeem certain real estate 'from, a deed of trust executed on the 18th of September, 1876. The circumstances under which this deed of trust was given are these: The Firl:!t Natiolllll Bank of Wichita had suspended. It was expected that a receiver would soon be appointed by the United States comptroller. indebted Complainant had been president of the bank, and was to it at the time of its suspension. James H. Mead was named as trnstee, amI, in adtlition to the ordinary language of a trust deed, makirig the conveyance as security for the payment uf his indebtedness to the bank, the instrument contained the following provision: , "Provided, fnrthEw, that the said James R. Mead, party of the second part, shall at once take possession of the ptelllise<i hereby convp)"ed, anll proceed to receive ami collect the rents, isslles, and profits of thp. same. Pro\'ided, Cut"ther, that. if defall! t' be maue ill the pa.\'Iuen t of any of thl:l illdebt dness or I iabilities herein secured,when the san,e becomes determIned. and dlle and payitems of indehteuuess or Iiahillty, able by the temis or natnre of such the said 'lmrty of the spcond part, 01' hissllceessors, shall, as soon a,s practicable, lifter 11e shidlbe directeu so flo dO: uy the cowptruller ot the United