delivered the opinion of the court.
The appellant has made a motion that the decree appealed from in this case, so far as it affects the said appellant, be reversed, and that the cause may be remanded to the Circuit Court with direction to dismiss the bill. This motion proposes .that the decree be reversed without argument of the cause in view of extrinsic facts, which are made to appear by the records of this court and of thе Circuit Court, and by affidavits: If such a course can be properly taken in any case, we think *52 it would be improper in the present, since the decree may be perfectly correct and free from objection on the facts of the case as they appear upon the record, and it is possible to be correct, notwithstanding the facts alleged by the appellant. These facts, however, are of such a .character that the appellant may be subjected to great injustice if the cause should go to hearing on the appeal in the present condition of the record ; and, as they have oсcurred since the appeal was taken, there - seems to be no mode of affording relief to the appellant except by sending the cause back to the Circuit Court for the ' purpose of .allowing supplementary proceedings to be had in that court.
The facts as stated by the appellant, and not denied by theappellee, are as follows:
“ On the 12th day of July, 1880, Anson Searls, the appellee in this сause, filed in the Circuit Court of- the United States for the Eastern District of Michigan his bill of complaint against .Alva "Worden and John S. Worden, for the infringement of a patent, and such proceedings were had in thb cause that on thе 5th day of September, 1883, a decree was entered in said cause in said Circuit Court, whereby it was decreed that the said Alva Worden and John S. Worden infringed the patent, and should pay over to the said Anson Searls $24,960.31.
“ That uрon the entry of said decree the defendants appealed the case to this court. But the -defendants,.Alva Worden and John S. Worden, were unable to "give "the necessary bond to operate as a supersedeas bond upon said appeal.
“On the lJth of September, 1883, the complainant issued an execution on his decree, and placed it in the hands of the marshal of said district.
“ On the 18th of September, 1883, the marshal, under the execution, levied upon certain lots in the city of Tpsilanti, "county of Washtenaw, and upon certain lands in the town of Sumpter, county of Wayne, all in the State of Michigan, in thé Eastern District thereof, the рroperty of the said appellant, Harrison H. Ballard; and on other lands in the said city of Jjjpsilanti, belonging to the said Alva Worden and John S. *53 Wordexi but which were mortgaged to Mary Ann Andrews, Henry M. .Curtis, Henry Yan Tuyl and Charles King.
“ That, on the 10th day of. October, 1883, the said Anson-Searls, in aid of his execution against the Wordens, filed- in. the said Circuit Court of the United States for the Eastern District of Michigan, his bill of complaint against Harrison H. Ballard, Mary.A. Andrews, Henry M. Curtis, Henry Yan Tuyl, .Charles King, Alva Wordеn and John S. Worden, to. set aside as fraudulent , and void, as to the creditors of 'the said Alva Worden and John S. Worden, the conveyances under, which the said Harrison H. Ballard held the lands so levied upon; and also the mortgаges given by the said Alva Worden and John S. Worden on the said lands belonging to them' to the said Mary Ann Andrews, Henry M. Curtis, Henry Yan Tuyl and Charles King. That such proceedings were had ip said last-mentioned cause, that the cause was brought'to а final hearing; and a decree entered on the 21th day of November, a.d.- 1881, in which it was decreed that the mortgages given by the said defendants Alva Worden and John S. Worden to the said defendants Mary A. Andrews, Henry M. Curtis, Henry Yan Tuyl, and Charlеs King, were good and valid liens upon the lands mentioned therein, and that the several conveyances to Harrison H. Ballard were fraudulent and void as against the creditors of the said Alva Worden and John S. Worden.
“ Thereupon the said defendant Harrison H. Ballard prayed an appeal to the Supreme Court of the United States to reverse the said decree, as far as it related to him.
“ That the said appeal was аllowed and the amount of the appeal bond was fixed at the sum of $8500. That the said bond was duly executed and approved by one of the judges of "the said Circuit Court, and filed in the office of the clerk of said Circuit Cоurt That on the 8th day of October, 1885, the clerk of the said Circuit Court of the United States for the Eastern District of Michigan transmitted the transcript of the record in the case of Anson Searls v. Harrison H. Ballard et al. to the clerk of the Supreme Court of the Unitеd States, and that the said transcript was filed in the office of the clerk of *54 this court on the 13th day of October, 1885, and now stands on the docket for the October Term, 1888, as No. 144.
“ That since the appeal in this case, the appeal in the original case of Alva Worden and John S. Worden, Appellants v. Anson Searls, has been heard in this court, and a decree entered thereon on the 27th of March, 1887, wherein and whereby it was, among other things, ordered, adjudged, and decreed' that the final decree of the said Circuit Court in this cause be, and the same is hereby, reversed with costs, and that the same be remanded to the said Circuit Court with a direction to dismiss the bill with costs.
“ That on the 8th day of August, 1887, this court issued its mandate in the said case of Alva Worden et al., Appellants v. Anson Searls to the said Circuit Coúrt, in whichy among other things, the said Circuit Court of the United States for the Eastern District of Michigan was directed to dismiss the bill with costs.
“ That said mandate was filed in the said Circuit Court on’ the 3d day of Octobеr, 1887.
“ That on the 3d day of September, 1888, a decree was entered in pursuance of said mandate in the case of Anson Searls v. Alva Worden and John S. Worden (the original case), dismissing the bill of complaint with costs.”
It is apparent from this statement that the whоle basis and foundation of the present suit has disappeared by the decree rendered in the former case of
Worden and others
v.
Searls,
reported in
The only course which can be properly pursued is to remand the cause to the Circuit Court, with instructions to allow the appellant to file a supplementаl bill, in the nature of a bill of review, or a bill to suspend or avoid the operation of the decree, according to the mode pointed out by Lord Bedesdale in his work on Equity Pleading. He says, on page 86: “ But if a 'cаse were to arise in which the new matter discovered could not be evidence of any matter- in issue in the original cause, and yet clearly demonstrated error in the decree, it should seem that it might be used as ground for a bill of review, if relief could not otherwise be obtained.” And on page 95 he says: “ 5. The operation of a decree signed and enrolled has been suspended in special circumstances, or avоided by matter subsequent to the decree, upon a new bill for that purpose; ” and he gives an instance occurring in the time of Charles II.' These views are adopted by Mr. Justice Story in his work on Equity Pleading. See § 415 and note; аnd § 428. We do not decide what precise form such a proceeding should take: the appellant will be advised by his counsel in this regard.
The appellee, in opposition to the appellant’s motion, has produced the certificates of the marshal of the United States for the Eastern District of Michigan,- showing that, on the 10th day of December, 1884, he sold the property in dispute, or some part thereof, to certain persons, under the execution' issued upon the decree in the case of Anson Searls v. Alva Worden and John S. Worden, (which was reversed by this.court, *56 as before stated,) and that the purchasers would be entitled to a deed of said lands, and the sales would become absolute at the expiration of fifteen months, unless previously redeemed as prescribed by the statute of Michigan.
It is possible that these sales'may complicate the inquiry to. be made by the court upon the supplеmental proceedings of the appellant; but we do not see that they can preclude such proceedings. It is not shown that the purchasers have advanced any money on the faith of the purchаses; and it is possible that the appellant can show that they, were made for the benefit of the appellee; in either case, the sales would be liable to be set aside on the reversal of the dеcree. Should the Circuit Court deem it proper to require that the purchasers be made parties to the supplemental proceedings, the facts of the case could be fully elicited, and right could be doné without prejudice to any of .the parties.
Our decision is that the canse he remanded to the Ovrcuit Gou/rt, with instructions to allow the appellant, defendant hdow, to file such supplemental hill as he ma/y he advised,' inthe nature of a hill of review, or for the purpose of suspending or avoiding the decree, upon the new matter arising from the reversal of the decree in the former case o f Anson Searls v. Alva Worden and John 8. Worden, and ’ that such proceedings he had thereon as justice and equity may require: And it is so ordered.