Barker v. Barker's Assignee, 2 F. Cas. 809

Barker v. Barker's Assignee

2 F. Cas. 809 | U.S. Circuit Court for the District of Louisiana | 1876

WOODS, Circuit Judge.

A bill to review can only be sustained on the ground of error in law, apparent on the record. 1 Spence, Eq. Jur. 393. On a bill of review, nothing can be examined’ but the pleadings, proceedings and decree, which, in this country, constitute what is called the record. The proofs cannot be looked into as they can on appeal. Putnam v. Day, 22 Wall. [89 U. S.] 60. It is well settled, that a bill of review for error, apparent upon the decree, must be for error in point of law, arising out of facts admitted by the pleadings or recited in the decree itself, as settled, declared or allowed by the court. O’Brien v. Connor, 2 Ball & B. 146; Mellish v. Williams, 1 Vern. 166; Webb v. Pell, 3 Paige, 368; Tommey v. White, 1 H. L. Cas. 160.

The complainants, while conceding these to be the rules governing bills of review, claim that after allowing the debt of the complainant to be a valid claim against the estate of Barker, it was error to refuse to *810give it a lien and privilege on Barker’s real estate, or the fund which was produced by its sale; that upon the record it appears that if the claim were allowed, the lien followed as a matter of law. I cannot assent to this conclusion. The lien upon the real estate of Jacob Barker claimed by the original bill is based upon the averment that the money which was the basis of the claim was the separate, dotal and paraphernal property of Elizabeth Barker, his wife, and as such, came into his hands under the law of Louisiana. This averment is denied by the answer. Besides. it is nowhere directly averred in ths original bill that Jacob Barker ever had anj real estate to which the tacit mortgage could attach. It is true, it is averred that Norton, his assignee, had sold and disposed of all the real estate in New Orleans surrendered, by Jacob Barker. But this averment, and ail others of the original bill are distinctly traversed by the answer. While, therefore, the court may have found that Jacob Barker’s estate was indebted to the complainants, it may also well have found that he owned no real estate on which the alleged tacit mortgage could rest. We cannot look into the proofs. We must take the bill, answer, replication and decree to see whether there is any error apparent on their face. Excluding the evidence, it is impossible to say that there was any error in the decree. As it does not so appear on the face of the record, and can be made to appear in no other way, the bill of review must be dismissed at complainant’s costs.