Opinion of the Court.

that where a mortgage contains the pact de non alienando the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and that all those claiming under the mortgagor, whether directly or remotely, will be bound, although not made parties.

In the present case, and in the later case of Shields v. Schiff, 36 La. Ann. 645, the Supreme Court of Louisiana has held that there was such a privity between a person whose life estate had been condemned under the act of July 17, 1862, and his heirs, that the latter were bound by a suit and decree to enforce a mortgage executed by their ancestor containing the pact de non alienando, to which the ancestor alone had been made a party defendant.

We think this decision is right. It is sustained by the case of Wallach v. Van Riswick, ubi supra, as will appear by the following passages fom the opinion of the court in that case, delivered by Mr. Justice Strong:

"If it be contended that the heirs of Charles S. Wallach," the person whose property had been condemned, "cannot take by descent unless their father, at his death, was seized of an estate of inheritance, e. g., reversion or a remainder, it may be answered, that even at common law it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shelley's case is, that where the ancestor might have taken and been seized the heir shall inherit. Fortescue, J., in Thornby v. Fleetwood, 1 Str. 318.

"If it were true that at common law the heirs could not take in any case where their ancestor was not seized at his death, the present case must be determined by the statute. Charles S. Wallach was seized of the entire fee of the land before its confiscation, and the act of Congress interposed to take from him that seizin for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's Case, 11 Coke, 1 a, it was resolved by the justices 'that there was a difference betwixt disability personal and temporary, and a disability absolute and perpetual; as where one is attainted of treason or

Opinion of the Court.

felony, that is an absolute and perpetual disability, by corrup tion of blood, for any of his posterity to claim any inheritance in fee simple, either as heir to him or to any ancestor above him; but when one is disabled by Parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir, after his death, may claim as heir to him or to any ancestor above him.' There is a close analogy between that case and the present."

"Without pursuing this discussion further, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and sale of the land in controversy, would defeat the avowed purpose of the confiscation act and the only justification for its enactment; and to hold that the joint resolution was not intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death, wouid give preference to the guilty over the innocent. We cannot so hold."

These extracts show that it was the opinion of the court that the children of a person whose estate was condemned under the act of July 17, 1862, took, at his death, by descent as his heirs, the fee simple, and did not derive their title from the United States, or by virtue of the confiscation act.

Avegno, the mortgagor, was, therefore, the only person necessary to be made a party to the suit brought by Morgan to foreclose his mortgage, and the proceedings and sale were valid and binding on the plaintiffs, and vested in Morgan a good title to the premises in dispute, which he conveyed to the defendants.

But the plaintiffs insist that the mortgage had been declared inoperative and void by the District Court in dismissing the intervention of Morgan in the proceeding to condemn the mortgaged property, and that the defendants are bound by that judgment. There are two answers to this contention. The first is that this defence, if it be a defence, should have been pleaded in Morgan's suit brought to enforce his mortgage. The decree of a court of competent jurisdiction cannot be collaterally attacked by averring and proving that there was a good defence to the suit if the defendant had chosen to make

Statement of Facts.

it. The second answer is that the District Court was without jurisdiction to pass upon the validity of the mortgage in the suit for the condemnation of the mortgaged property. Bigelow v. Forrest, 9 Wall. 339; Day v. Micou, 18 Wall. 146; Claims of Marcuard, 20 Wall. 114. It does not clearly appear from the record that the District Court intended by its decree dismissing the intervention of Morgan to pass upon the validity of the mortgage; but if its decree is to be interpreted as declaring the mortgage to be invalid and void, the court exceeded its jurisdiction, and the decree was without effect upon the niortgage.

In our opinion, therefore, Morgan acquired a good title to the premises in controversy by his purchase at the sale made to satisfy his mortgage lien, and his deed to the defendants having vested them with his title, the judgment of the Supreme Court of Louisiana in their favor was right.

Judgment affirmed.

STONE v. CHISOLM & Others.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.

Submitted January 5, 1885.-Decided February 2, 1885.

A suit in equity is the proper remedy, in the courts of the United States, to enforce the statutory liability of directors to a creditor of a corporation, (organized under the act of the legislature of South Carolina of December 10, 1869), by reason of the debts of the corporation being in excess of the capital stock. An action at law will not lie.

This was a writ of error prosecuted to reverse a judgment of the Circuit Court for the District of South Carolina, dismissing the complaint, in which the plaintiff asked for a recovery for the sum of $1,050, with interest from July 1, 1883. The jurisdiction of this court depended upon and was limited by a certificate of division of opinion between the Circuit and District

Statement of Facts.

Judges, before whom the case was tried, and was confined to the single question so certified whether the remedy of the plaintiff below was by an action at law, or by a suit in equity. The allegations of the complaint were as follows:

"I. That the plaintiff, Roy Stone, is a citizen of the State of New York.

"II. That the defendants, Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred Ravenel, and Sallie E. Conner, as executrix of James Conner, deceased, are citizens of the State of South Carolina.

"III. That heretofore, to wit, on the - February, 1881, the Marine and River Phosphate Mining and Manufacturing Company of South Carolina was a corporation under the laws of the State of South Carolina, with a paid-up capital stock of fifty thousand dollars, and no more; that said company was, by the terms of the charter, authorized to increase its capital stock, in the manner provided by law, to an amount not exceeding two hundred and fifty thousand dollars, and by an act amendatory of its charter, passed-December, 1882, the said company was further authorized to increase its capital stock to an amount not exceeding four hundred thousand dollars in the whole, inclusive of the stock then existing; that the company did, from time to time, between the said February, 1881, and 21st March, 1883, increase its capital stock to the sum of three hundred thousand dollars, that is to say, scrip for shares of capital stock to the par value of three hundred thousand dollars were issued; but, as the plaintiff is informed and believes, and so alleges and charges, of the additional amount of stock issued after- February, 1881, only the sum of twenty-five thousand dollars, or thereabouts, was ever actually paid in, making the entire aggregate of capital stock actually paid in not to exceed in all the sum of seventy-five thousand dollars.

"IV. That by an act amendatory of its charter, passed 21st December, 1882, the name of said Marine and River Phosphate Mining and Manufacturing Company was changed to the Marine and River Phosphate Company.

"V. That on the 21st day of March, 1883, the said Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred

Statement of Facts.

Ravenel, and James Conner were directors of said company. That thereafter, to wit, July, 1883, the said James Conner departed this life, leaving a last will, whereof he appointed his wife, Sallie E. Conner, executrix, who has duly qualified thereon.

"VI. That on said 21st March, 1883, the said Marine and River Phosphate Company was indebted in an amount not less in the aggregate than seventy-five thousand dollars.

"VII. That on said 21st March, 1883, in the administration of the aforesaid directors, there were issued the following bonds, being a debt contracted by the said company additional to the debt existing as aforesaid, to wit:

"Sixty bonds or obligations of said company, bearing date the twenty-first day of March, 1883, and each conditioned for the payment to bearer of the sum of five hundred dollars on the first day of January, 1893, with interest thereon, payable semi-annually, at the rate of seven per cent. per annum on the presentment of the interest coupons therefor, attached to said bonds, and payable on the first days of July and January of each year. That an interest coupon for the sum of $17.50 became due on each of said bonds on the first day of July last past, and the same were, at maturity, duly presented for payment and payment refused, and no part of the same has been paid.

“VIII. That plaintiff is the lawful owner and holder of said bonds and coupons.

"IX. That the said bonds, so conditioned, for the aggregate sum of thirty thousand dollars, were in addition to the debt already existing as aforesaid, and constituted an indebtedness in excess of the capital stock of said company actually paid in as aforesaid.

"X. That by the 1367th section of the General Statutes of the State of South Carolina, and by the provisions of an act of the said State, approved 10th December, 1869, entitled 'An Act to regulate the formation of corporations' (under which act the said Marine and River Phosphate Mining and Manufacturing Company of South Carolina was incorporated), and by sundry other laws of said Staté, the said defendants are jointly and