made very little impression on his mind, and that his knowledge of the condition of the road, and the contracts made with reference to it, was absolutely nothing. In reference to John I. Blair, his testimony was substantially that his negotiations, or the negotiations of the Lackawanna Iron Company, of which he is president, were originally with this Missouri & Iowa Construction Company; and that in that company were some gentlemen of railroad experience,-railroad builders of known financial ability; and that his contracts were made with that company, upon the faith of these facts; and that the bonds to be received were mainly in the way of a collateral security. Now, it does not seem to me so strange that a man dealing with a construction company, with men with whom he had had business transactions, and in whose financial ability he had confidence, that he, mainly relying on that ability, and on their character, should take the securities which they tendered, relying on their statements concerning He had also the statements of the president of this company that the road was free from embarrassments and indebtedness; statements, which it would seem from Mr. Blair's testimony, were not only unreliable, but were coupled with many others since found to be untrue. After reading this testimony through, from its commencement to the close, (subjected, as both witnesses were, to a searching cross-examination,) it seems to me there is not one syllable to indicate that at the time the interest was acquired by John I. Blair and Moses Taylor in those bonds they had any notice or information or intimation that Josiah Fogg had any claim against the St. Louis, Hannibal & Keokuk Railroad. While counsel criticise this as strange, yet I think an opposing fact is equally strange. If Josiah Fogg had a claim, which it is now proved that he did have, a claim existing prior to March 4, 1873, a claim against both the St. Louis & Keokuk Railroad and the St. Louis, Hannibal & Keokuk Railroad, he permits that to rest unenforced, unreduced to judgment, a mere matter of parol, until the twenty-first of September, 1880, more than seven years. It does not lie in his mouth to reflect or criticise the apparent confidence of other persons dealing with the St. Louis, Hannibal & Keokuk Railroad Company, if he was willing to trust these parties all those years, and take his chances of voluntary payment. I suppose he had reason to believe it would be paid, and therefore did not take any steps to enforce it. It certainly does not lie in his mouth to complain that other people were equally confiding in trusting to the representations of the same officers. It seems to me that there was neither actual nor constructive notice to either the trustee in this mortgage or to the principal bondholders of the existence of this claim at the time they became interested as trustee and as bondholders. It follows from that, that this claim, as well as that of Sarah Parker, similarly situated, is not entitled to priority to the bonds, and it is so ordered. ALLEN V. HALLIDAY and others.1 (Circuit Court, E. D. Louisiana. November, 1885.) 1. EQUITY JURISDICTION-CLOUD UPON TITLE. A suitor has no remedy at law to remove a cloud upon title to real estate of which he has the possession and is not disturbed therein. 2. SAME. To maintain a suit to remove a cloud upon the title of real estate, it is generally necessary that the plaintiff's title should have been established at law. but it suffices that it be founded on undisputed evidence or long-continued possession. Holland v. Challen, 110 U. S. 20, S. C. 3 Sup. Ct. Rep. 495, followed. In Equity. On demurrer. B. R. Forman, for complainant. R. H. Marr, for defendants. PARDEE, J. This case has been heard on demurrer to the bill. The bill is one in which the complainant, alleging himself to be the owner and in possession of certain realty, complains of the defendants as pretending that a certain sheriff's deed outstanding is a prior and better title than complainant's, and that such pretensions, with a record of said sheriff's deed, will throw a cloud on complainant's title; and suitable relief is asked. The first ground of demurrer urged is that the complainant has a complete and adequate remedy at law. Under the allegations of the bill it is difficult to point out what this remedy at law may be. Complainant is in possession, and his possession is not disturbed,—only threatened, and that by pretensions of title. Neither ejectment nor trespass will lie. The petitory action, under the Code of Louisiana, must be brought against one in possession, and is therefore not available to the complainant. The possessory action may be brought by one in possession; but in such action no question of title can be adjudicated. It seems to me that if complainant has any remedy, it is the one he has sought in this bill, to-wit, to remove cloud from title and an injunction. The other ground of demurrer is that equity will not interfere to remove a cloud upon the title to real estate until the complainant's title has been established at law. The general rule given by the supreme court is that the plaintiff should be in possession of the property; and, except where the defendants were numerous, that his title should have been established at law, or be founded on undisputed evidence or long-continued possession. See Holland v. Challen, 110 U. S. 20; S. C. 3 Sup. Ct. Rep. 495. And in that case this general rule was held to be further modified by the legislation and jurisprudence of the state in which the action is brought, going so far in the district of Nebraska as to maintain a bill to quiet title by one not in 1 Reported by Joseph P. Hornor, Esq., of the New Orleans bar. possession, because the Nebraska law allowed such suit to be brought in the state court. In the state courts of Louisiana such a suit as the present could be maintained without reference to a previous establishment of complainant's title in a petitory action. If this be so, and I think there can be no doubt of it, then under authority of Holland v. Challen, supra, such suit can be maintained in this court. The demurrer will be overruled, and the defendants be required to answer by the rule-day. WOODWARD and others v. JEWELL and others.1 (Circuit Court, 8. D. Georgia, W. D. October, 1885.) 1. USURY-ACTION BY COMMISSION MERCHANT. Where mutual dealings were had between a mill-owner and his commission merchants, whereby the latter have made advances and served the former as his agents for a period of 12 years, rendering stated accounts monthly, which were admitted to be correct, it is too late to plead usury in defense of a bill filed by the commission merchants to enforce the payment of a balance ascertained to be due them. 2. SAME-CHARGING INTEREST ON MONTHLY BALANCES. It is not usurious to charge interest on balances agreed to be due at the monthly settlements, when the parties conducted their business in the manner stated. 3. CONTRACT-TWO INSTRUMENTS EXECUTED AT SAME TIME. Where two instruments are executed at the same time, between the same parties, relative to the same subject matter, they are to be taken in connection as forming together the several parts of one agreement. 4. VENDOR And Vendee-LAND SUBJECT TO INCUMBRANCE. Where a creditor takes from a debtor deeds to lands to secure his debt, and at the same time executes an instrument giving to the debtor the "full right" to sell the lands and make titles, stipulating, however, that the proceeds of such sales shall "go to the credit" of the debtor, a purchaser from the debtor under such power to sell takes a good title, nor, in the absence of allegations and proof of collusion and fraud between the debtor and the purchaser, is the latter to be held responsible for the misapplication of the purchase money. In Equity. Hill & Harris and W. E. Jackson, for complainants. Lanier & Anderson, for defendants. SPEER, J. Jewell was a cotton-mill owner and planter, residing in this district; Woodward, Baldwin & Co. are commission merchants residing in the state of New York. Jewell would ship the products of his mill to Woodward, Baldwin & Co., they would sell the same on commission, rendering to him monthly an account of the proceeds. They would make advances to him to enable him to carry on his business, and these mutual dealings had continued from about the year 1870 to April, 1884. On the seventeenth of January, 1878, by instruments in writing then executed Jewell admitted an indebtedness to 1 Reported by Walter B. Hill, Esq., of the Macon bar. v.25F,no.12-44 Woodward, Baldwin & Co., amounting to $30,000. To secure this sum he gave them deeds to lands elsewhere and to the lands involved in the issue before the court, a tract known as the "Hurt Place," and another known as the "Homestead Tract," in Baldwin county. On the same day, viz., the seventeenth of January, 1878, Woodward, Baldwin & Co. executed an instrument by which they authorized Jewell to sell the lands he had conveyed to them, and to apply the proceeds to the discharge of his indebtedness. The language of this last instrument is, "The said Woodward, Baldwin & Co. further agree that the said Jewell shall have full right and permission to sell the property named in said deeds, and make titles thereto, the proceeds of said sale to go to the credit of the said Woodward, Baldwin & Co." This instrument refers to the deeds made by Jewell, is in consideration of the same, and, in the opinion of the court, they all constitute one and the same contract, and Jewell had three years in which to pay this money, and he failed to pay it. In the mean time, however, he had sold the Hurt place and the Homestead tract to S. P. Myrick and to Mrs. Daniel, co-respondents. Woodward, Baldwin & Co. went into possession of all the other lands conveyed by Jewell's deeds to them, and selling the same, reduced his indebtedness to $4,099.13. They now file this bill against Myrick, Mrs. Daniel, and Jewell, and they seek to subject the two tracts of land mentioned to the payment of this balance. The respondents set up two defenses: The first is usury in the transactions between Jewell and the complainants; and the second is that Jewell had the right to sell the lands, and they bought them in good faith. With regard to the first defense, for several reasons the court is of the opinion that it is not maintainable. The mutual transactions covered a period of about 12 years; stated accounts were rendered Jewell monthly, and he acknowledged their correctness without objection. He is concluded as to these monthly accounts, and is barred by the statute of limitations from the plea of usury, and besides it is not at all clear that there was usury. It is true, interest was charged by Woodward, Baldwin & Co. on the balances which Jewell admitted to be correct; but these balances properly bore interest, and it is nowhere made to appear that more than 7 per cent. was charged. This cannot be held usurious, (Pinckard v. Ponder, 6 Ga. 253,) nor could their commissions be regarded as usurious. This brings us to the consideration of the second ground of defense, namely, "that Jewell had the right to sell, and the respondents took an unincumbered title." It cannot be doubted that the two instruments executed by Jewell and Woodward, Baldwin & Co., on the seventeenth January, 1878, in legal contemplation, constitute one and the same contract. Slaughter v. Culpepper, 44 Ga. 325; 2 Bl. Comm. 327; Co. Litt. 236. Where two instruments are executed at the same time, between the same parties, relative to the same subject-matter, they are to be taken in connection as forming together the several parts of one agreement. Whether these two instruments constitute a deed or mortgage is not material. If a mortgage, Jewell had a right to sell the land free from its lien; if a deed, he had the right to sell the title, having reserved that right in his contract with Woodward, Baldwin & Co. Nor does it matter that the instrument authorizing Jewell to sell had but one attesting witness. Inter partes it is binding; and besides, it is in the nature of a reservation grafted in the deed, which was properly attested. A court of equity will not permit Woodward, Baldwin & Co. to defeat purchasers under the instrument which they themselves have executed. It is a familiar doctrine "that he who empowers another to do a wrong must suffer rather than innocent persons who have been as a consequence wronged." Besides, this is simply an objection to the execution of the instrument; and the complainant produced it as a part of their exhibits to the bill, and gave it verity in that way. Hunt v. Formby, 43 Ga. 79. It is urged for the complainants that Myrick and Mrs. Daniel hold under quitclaim deeds from Jewell, and for that reason cannot rely on the equities of bona fide purchasers without notice. This question has been adjudicated by the courts of the several states so as to leave a distressing conflict of authority; but the supreme court of the United States has settled the rule for our guidance here. They hold that a grantee in a quitclaim deed cannot defend as a bona fide purchaser without notice. Villa v. Rodriguez, 12 Wall. 323; Dickerson v. Colgrove, 100 U. S. 578. It may well be doubted, however, whether these are quitclaim deeds. They convey the title absolutely, without the usual phraseology, "remise," "release," "relinquish," "quitclaim," etc. Besides, no form in Georgia is necessary to a conveyance, provided the intent to convey is clear. Ball v. Wallace, 32 Ga. 172. Conceding, however, that the deeds are of the character claimed by the complainants, the notice with which the purchaser was charged is defect of title. But there was no such defect here, as Jewell had the right to sell and to make titles. This right was exercised. But it is insisted that the quitclaim deeds should have the effect to put on the purchasers the duty to see that the purchase money found its way into the hands of those to whom it belonged. 2 Perry, Trusts, 796, and 2 Story, 1127-1132, inclusive, are cited. The English rule on this intricate topic is as follows: "Where the trust is to pay from the proceeds of sale a particular debt, the purchaser must see that the money finds its way into the hands of those to whom it belongs." Perry, Trusts, 796. But this rule is not favored in American courts, and the same author, paragraph 798, concedes this; and Mr. Justice STORY declares, after a full statement of the nice distinctions involved: "They lead strongly to the conclusion to which, not only eminent jurists, but eminent judges, have arrived, that it would have been far better to have held in all cases that the party having the right to sell had also the right to |