in defining one party's interest under a will, found erroneously that he had only a life estate as to one-sixth of the land, and that the remainder was in his children, when in fact the will gave him the absolute title, and although the decree appeared to have been by consent, when the proof showed that such was not true, on a bill by his heirs after his death against his grantee to have the original decree carried into effect, it was held that relief was not to be granted. A court of equity will not enforce a voluntary contract or an unexecuted gift, or complete what it finds imperfect, when the transaction is incomplete and there is no consideration. The same principle applies to an executory decree in its nature a family settlement. A gift capable of be ing made by a legal conveyance is as imperfect when created. by an executory decree as if by an executory contract.8 When a party comes into court asking for the benefit of a former decree, he must be prepared to show, if the case requires it, that such decree was right. It is said that, although the original decree may be controverted upon the failure to carry it into execution, it is only the defendant in the new suit who can call it in question. The complainant never can. He must, if dissatisfied with the decree, impeach it either by bill of review, or some proceeding of that nature.10 Bills to carry decrees into execution are open to few peculiar causes of demurrer. Where, upon the face of a bill to carry a decree into execution, the complainant appears to have no right to the benefit of the decree, the defendant may avail himself of the objection by demurrer.11 If a complainant filing a bill to carry a decree into execution happens to have no right or interest, 7 Wadhams v. Gay, 73 Ill. 415. 8 Wadhams v. Gay, 73 Ill. 415. O'Connell v. McNamara, 3 Dru. & War. 411. 10 2 Barbour, Ch. Pr. 88; Robinson v. Robinson, 2 Ves. Sr. 225; Shepherd v. Titley, 2 Atk. 348. 11 Story, Eq. Pl. § 641; Cooper, Eq. Pl. 218. See Hamilton v. Houghton, 2 Bligh, 169. and such fact is not so apparent in the bill as to admit of a demurrer, the defendant may offer it by way of plea.12 § 960. Form of bill to carry decree into execution. [Title of court and cause, and address to the court.] Complaining, shows unto your honor your orator, A. B., of, etc.: That your orator, on or about filed his bill of complaint in this honorable court against C. D., stating [set out substance of a bill for partition], and praying [set out prayer verbatim]. And your orator further shows that, process of subpoena being served upon the said defendant, he appeared to the said bill and put in his answer thereto, to which a replication was filed. And the said cause being at issue, the same came on to be heard before your honor on or about when a decree was made by your honor directing that a commission should issue to certain commissioners to be therein named, to make partition of the estate in question, and that the said estate was to be divided and separated, and one-third part thereof set out in severalty, and declared to belong to the said C. D. and his heirs, and the remaining two-thirds part thereof declared to belong absolutely to your orator, to be held in severalty by him; and the respective parties were decreed to convey their several shares to each other, to hold in severalty, according to their respective undivided shares thereof, and that it should be referred to P. G., one of the masters of this court residing in the county of conveyances, in case the parties differed about the same, as by the said proceedings and decree now remaining as of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honor that the commission awarded by the said decree never issued, on account of the said C. D. going abroad, and being, until lately, out of the jurisdiction of this honorable court; but the said C. D. having now returned, and the inconvenience mentioned in your orator's former bill still existing, your orator is desirous of having the said decree forthwith carried into execution, but from the great length of time which has elapsed, and the refusal of the said C. D. to concur therein, your orator is advised the same cannot be done without the assistance of this honorable court. to settle the To the end, therefore, that the said C. D. and his confederates may full, true, direct, and perfect answer make, upon their respective corporal oaths, according to the best of their knowledge, information, and belief, to all and singular the matters and things aforesaid [or, if an answer under oath is waived, omit the words, "upon their respective 12 Story, Eq. Pl. § 837; Cooper, Eq. Pl. 305, 306; Mitford, Eq. Pl. 293; Beames, Pleas in Eq. 307, 308. corporal oaths," and insert, "but not under oath, answer under oath being hereby waived"], and that as fully and particularly in every respect as if the same were here again repeated, and they thereunto particularly interrogated. And that the said decree may be directed to be forthwith carried specifically into execution, and the said C. D. ordered to do and concur in all necessary acts for that purpose. May it please your honor to grant unto your orator a writ of subpoena issuing out of and under the seal of this honorable court, to be directed to the said C. D., commanding him, by a certain day and under a certain penalty, to be and appear before your honor, then and there to answer the premises, and, further, to stand to and abide by such order and decree therein as shall be agreeable to equity and good conscience. And your orator will ever pray, etc. G. H., Solicitor for Complainant.13 A. B., Complainant. 18 This form is taken from Willis, Pleadings in Eq. 391. (1019) CHAPTER LIV. BILLS IN THE NATURE OF BILLS OF REVIEW. § 961. Definition and general nature. The only distinction between a bill of review and a bill in the nature of a bill of review consists in the enrollment or nonenrollment of the decree, a bill of review in the former case being proper, and a bill in the nature of a bill of review lying in the latter case.1 This distinction between a bill of review and a bill in the nature of a bill of review, though formerly important in England, is not observed in the practice of the federal courts, and perhaps rarely in any of the state courts of equity, where, as a general rule, all decrees, as well as judgments, are matters of record, and are deemed to be enrolled as of the term in which they are passed.2 It is to be observed that no persons, except parties and their privies in representation, such as heirs, executors, or administrators can maintain a bill of review; but other persons in interest and privity of title or estate, who are aggrieved by the decree, such as devisees and remaindermen, can maintain a bill in the nature of a bill of review. Lord Redesdale said concerning such a bill: “If 1 Story, Eq. Pl. § 421; Standish v. Radley, 2 Atk. 178; Perry v. Phelips, 17 Ves. 173; Fort Wayne Electric Corp. v. Franklin Electric Light Co., 57 N. J. Eq. 7, 41 Atl. 666; Singleton v. Singleton, 8 B. Mon. (Ky.) 340. See, for forms of this bill, Willis, Pleadings in Eq. 376, 378. 2 Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Singleton v. Singleton, 8 B. Mon. (Ky.) 340; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581. See, also, Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786. In some of the states a bill in the nature of a bill of review is no longer used. Burch v. Scott, 1 Gill & J. (Md.) 393, 400; Owens v. Love, 9 Fla. 325. 3 Story, Eq. Pl. § 409; Mitford, Eq. Pl. 92; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; Webb v. Pell, 3 Paige (N. Y.) 368; Dunklin v. Harvey, 56 Ala. 177; Jenkins v. Eldredge, 3 Story, 307 Fed. Cas. No. a decree is made against a person who has no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest, relief may be obtained against error in the decree by a bill in the nature of a bill of review. Thus, if a decree is made against a tenant for life only, a remainderman in tail or in fee cannot defeat the proceedings against the tenant for life but by a bill showing the error in the decree, the incompetency of the tenant for life to sustain such a suit, and the accruer of his own interest, and thereupon praying that the proceedings in the original cause may be reviewed, and, for that purpose, that the other party may appear to and answer this new bill, and the rights of the parties may be properly ascertained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court."4 Under the English practice it was doubted whether a bill in the nature of a bill of review could be filed upon matter of law, as the decree could be investigated by a petition for rehearing. The true office of the bill as used where the practice of enrolling decrees no longer exists is to bring new matter of fact before the court, which has been discovered since publication. Such new matter is brought forward by a supplemental bill, or a new bill in the nature of a bill of review, and it ought to be accompanied by a petition to rehear the original cause at the same time that it is heard upon the supplemental bill. Such supplemental bill cannot be filed without leave of court, nor without an affidavit 7,267; Thompson v. Maxwell, 95 U. S. 391; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Poole v. Nixon, 9 Pet. Append. 770, Fed. Cas. No. 11,270. See Singleton v. Singleton, 8 B. Mon. (Ky.) 340. 4 Mitford, Eq. Pl. 92. 5 Story, Eq. Pl. § 421, note; Mitford, Eq. Pl. 91; Ves. 173; Pendleton v. Fay, 3 Paige (N. Y.) 204; Johns. Ch. (N. Y.) 488. Story, Eq. Pl. § 422. Perry v. Phelips, 17 |