Christmas v. Russell,
81 U.S. 69 (1871)

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U.S. Supreme Court

Christmas v. Russell, 81 U.S. 14 Wall. 69 69 (1871)

Christmas v. Russell

81 U.S. (14 Wall.) 69


1. Where a bill does not relate to some matter already litigated in the same court by the same persons, and which is not either in addition to or a continuance of, an original suit, it is an original bill, not an ancillary one.

2. Accordingly, when such bill is between citizens of the same state, the circuit courts have no jurisdiction.

Page 81 U. S. 70

3. A mere promise, though of the clearest and most solemn kind, to pay a debt out of a particular fund is not an assignment of the fund even in equity. To make an equitable assignment, there should be such an actual or constructive appropriation of the subject matter as to confer a complete and present right on the party meant to be provided for, even where the circumstance do not admit of its immediate exercise. If the holder of the fund retain control over it, as ex gr., power on his own account, to collect it or to revoke the disposition promised, this is fatal to the thing as an equitable assignment.

Richard Christmas, of Kentucky, on 30th November, 1859, sold to one Lyons, of Mississippi, an estate there, and received in consideration therefor his promissory notes, each for $16,666, payable to him the said Richard or bearer, with interest, with a mortgage on the estate.

These notes subsequently (May, 1866) passed into the hands of H. H. Christmas, also of Kentucky, the son of Richard by his first wife, who, in the following June, had a settlement and compromise with Lyons, who paid a certain sum in cash, and for the remainder executed his two promissory notes in favor of said H. H. Christmas, for $8,339.90 each, one payable December 1, 1866, and the other February 1, 1868. These notes were to be secured by the mortgage aforementioned.

The said H. H. Christmas being indebted to Payne, Huntington & Co., of New Orleans, pledged to them, in February, 1867, the first of these notes. Neither note being paid, two suits were instituted on them in the Circuit Court of the United States for the Southern District of Mississippi; one in the name of H. H. Christmas, for the use of Payne, Huntington & Co., on the pledge above stated, and the other in his own name and for his own use.

A bill was also filed to foreclose the mortgage on the notes, on which these respective rights were asserted.

On the 1st May, 1868, H. H. Christmas entered into a written obligation with Mrs. Mary Christmas, the second wife of said Richard (and like her husband, of Kentucky), in which, in consideration of her assuming to pay the debt

Page 81 U. S. 71

due to Payne, Huntington & Co., he transferred to her the note of Lyons, left in pledge with them. She having paid the note by a sale of her separate estate, made by Richard, under a power of attorney executed by his wife, and by a deed executed by him, as trustee for her, in June, 1868, the bill to foreclose the mortgage was amended, by showing this transfer and the payment of the amount due to P., H. & Co., and application was made to substitute her name for that of P., H. & Co., on the action at law. On the second of these notes a judgment was rendered on 13th November, 1868, for $8,868. The other one remained in suit.

So far as to this part of the case. And now the subject matter changes. It is thus:

On the 25th of May, 1860, one Russell, also of Kentucky, for himself and other persons there, for whom he sued, obtained a judgment for about $12,000 against the father, Richard Christmas, already named. The judgment was brought by writ of error to this Court, and execution stayed by a supersedeas bond executed by the said Richard and one Yerger and a certain Anderson, as his sureties. To induce Yerger and Anderson thus to become his sureties, Christmas had promised them a counter security of some sort, and he had in fact given them such security -- the note of one Martin -- which, however, to promote in some way his convenience, they had surrendered to him. The matter stood thus until the war of the rebellion closed, A.D. 1865. Christmas had during the war gone to Texas, and thence went to Havana, and thence to Europe. On reaching Liverpool, he wrote, October 23, 1865, a letter to Yerger thus:

"I feel great uneasiness about your liability on the bond in suit of Russell against me. I have ever held the Lyons note as sacred for the payment of this debt, and have it now in New York endeavoring to sell it with the mortgage to pay this debt. I expect to hear from it daily. If not sold, I will send it to you as soon as I return."

On the 14th of February, 1866, he wrote again, stating that he had countermanded the sale of the Lyons note and

Page 81 U. S. 72

that he would make a liberal arrangement with him, and adds:

"I could not safely send you Lyons's note by mail, as it is payable to me or bearer; hence, if lost, might put me to much trouble."

On the 20th of February, 1866, he wrote again to Yerger stating that he had written on the 17th, proposing that if Lyons would take up Russell's debt, he would allow it as a credit, dollar for dollar, on the note, but reflecting that the judgment might not be affirmed in the Supreme Court of the United States, and that the note was well secured, he requests that no further action be had until he can be better informed, suggesting that the rents of the land subject to the mortgage would pay the amount for which Yerger was surety, and then adds:

"I will hold this note -- $16,666, and many years' interest -- always subject to this debt, provided the judgment is affirmed, until which time let the matter rest where it is. When a compromise is made, it must be through you as surety. I am sorry you told Lyons of our understanding, as he will be apt to let Russell know, and prevent an advantageous compromise."

On the 21st of February, 1866, he wrote again from Liverpool, saying, "I wrote you on the 17th and 20th," suggesting that he had written to Burwell to compromise the Russell debt, and adds:

"You may rest assured I will protect you with the Lyons note. . . . This fact should not be known, to enable me to make a good compromise."

On the 12th of May, 1866 -- after the transfer of the notes to his son, H. H. Christmas, which he says he had been compelled to make -- he adds:

"In this I hope I have not lost sight of my purpose to protect you,"


In this state of things -- and Richard Christmas being now wholly insolvent -- Russell and the others, for whom he had

Page 81 U. S. 73

recovered the judgment, filed a bill in the same, the Circuit Court for the Southern District of Mississippi, against Lyons, still of Mississippi, and all three of the Christmases, father, wife, and son -- these last three, like himself, as already mentioned, being citizens of Kentucky -- setting forth the facts above stated, including the citizenship, and seeking to enjoin Lyons from paying his notes to either Mrs. Christmas or to the son, H. H. Cristmas, and seeking to cause the payment (when payment was to be made) to be made to them on the ground of their already-mentioned judgment against the father, Richard Christmas (for the payment of which Yerger and Anderson, his sureties, had, by the affirmance of the judgment, in this Court, become equally liable with him), and on the further ground that the said Richard had made an equitable assignment of the fund to them, and that they were in equity entitled to enforce the security. [Footnote 1]

The court below decreed for the complainants, "it appearing," as it said,

"that the said Richard, with intent to provide for the payment of the judgment, in case the same should be affirmed, and to induce the said Yerger and the said Anderson to become his sureties aforesaid, did agree to provide special indemnity to them; and with such intent, and to the end that said judgment should be paid, and his said sureties saved harmless, did assign to them, his said sureties, the debt mentioned in the complainants' bill, as due from the defendant, Lyons, to him, the said Richard, . . . and did so assign and set apart the said debt to the sureties aforesaid, as to give them a lien upon the said debt, which in equity they are entitled to enforce for the purpose of paying the said judgment, and that their lien attaches to and binds the debt due from Lyons, and not converted by said Harry and Richard, and which debt is evidenced by the judgments recovered in this Court in favor of H. H. Christmas, and of H. H. Christmas for the use of Mary E. Christmas,

Page 81 U. S. 74

and by a decree in this Court against Lyons in favor of said H. H. Christmas and Mary E. Christmas, foreclosing the mortgage, executed by said Lyons, to secure the payment of said debt due by him as aforesaid."

The court accordingly decreed payment to the complainants of the fund in court, which had been paid by Lyons, $7,873, and that the said Lyons pay to them $8,192, with interest from the 21st May, 1869.

From this decree the present appeal was taken. The errors assigned being:

First. That under the Constitution, which declares that the judicial power shall extend to "controversies between citizens of different states," the court below had no jurisdiction over the defendants, Richard, H. H., and Mary Christmas, who were stated in the bill to be citizens of Kentucky.

Second. That if this was not so, and if the court below had jurisdiction, the evidence did not authorize the conclusion that there had been an equitable assignment.

Page 81 U. S. 78

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