Harmes, 5 Colo. App. 477, 39 Pac. 68. Decisions may also be found which erroneously apply this rule to suits in equity. Burnett v. Crandall, 63 Mo. 410; Getchell v. Maney, 69 Me. 442, 444, 40 Am. Rep. 388; Johnson County v. Bryson, 27 Mo. App. 341, 349; Fourth National Bank v. Noonan, 88 Mo. 372, 377; Cook v. Bidwell (C. C.) 8 Fed. 452, 456; Appeals of City of Philadelphia, 86 Pa. 179, 182; C. & N. W. R. Co. v. Nichols, 57 Ill. 464, 466; Kansas City, M. & B. R. Co. v. Robertson, 19 South. 432, 109 Ala. 296; Insurance Co. v. Bullene, 51 Kan. 764, 774, 33 Pac. 467; Leonard v. M., K. & T. Ry. Co., 68 Mo. App. 48, 50; Bosworth v. Jacksonville Nat. Bank, 12 C. C. A. 331, 64 Fed. 615; Skobis v. Ferge, 78 N. W. 426, 429, 102 Wis. 588; Kiddoo Bros. v. Dalton, 73 Mo. App. 667.

But the settled rule of the national courts and the general and rational rule is that the assignee of a part of a credit or of a chose in action or of property in the custody of another may enforce his claim by a suit in equity, for the very reasons that he cannot do so, and hence has no adequate remedy, at law, and that he may make the assignor and all the assignees parties to the suit, so that the debtor will be subject to but a single action. Fourth Street Bank v. Yardley, 165 U. S. 634, 644, 17 Sup. Ct. 439, 41 L. Ed. 855; Trist v. Child, 21 Wall. (U. S.) 441, 447, 22 L. Ed. 623; Peugh v. Porter, 112 U. S. 737, 742, 5 Sup. Ct. 361, 28 L. Ed. 859; James v. Newton, 142 Mass. 366, 372, 378, 8 N. E. 122, 56 Am. Rep. 692; Richardson v. White, 167 Mass. 58, 60, 44 N. E. 1072; Warren v. First Nat. Bank, 38 N. E. 122, 125, 140 Ill. 9, 25 L. R. A. 746; Grain v. Aldrich, 38 Cal. 514, 521, 99 Am. Dec. 423; National Exchange Bank v. McLoon, 73 Me. 498, 40 Am. Rep. 388; Lanigan v. Bradley, etc., Co., 50 N. J. Eq. 201, 24 Atl. 505; Field v. Mayor, 2 Seld. (N. Y.) 179, 188, 57 Am. Dec. 176; Pomeroy, Eq. Jur. p. 2563, § 1280, and cases cited in the notes. And a party for whom real or personal property is held in trust may convey a part of his interest therein without the consent of his trustee, and his assignee may maintain a suit in equity to enforce the execution of the trust. The assignee of a part of the interest of a cestui que trust has the same right as had his assignor to compel the performance of the trust.

Stevens, 15 Gray (Mass.) 243; Buck v. Swazey, 35 Me. 41, 56 Am. Dec. 681; Pomeroy, Eq. Jur. (2d Ed.) § 989; Honnett v. Williams, 66 Ark. 148, 152, 49 S. W. 495; Whipple v. Fairchild, 139 Mass. 262, 265, 30 N. E. 89; Clark v. Crego, 47 Barb. (N. Y.) 599, 614; Putnam v. Story, 132 Mass. 205, 210.

But counsel insist that there was a defect of parties to this suit, because Byrns, the assignor, and the United States Mines Company and Bradburn, assignees of parts of Byrns' interest, are not parties to the suit, and, while the complainants state in their bill that they bring this suit on behalf of themselves and all others similarly situated, they do not aver that the others are too numerous to be joined, that their joinder would oust the jurisdiction of the court, nor do they set forth any other fact which might excuse their failure to bring the other assignees of parts of the claim of Byrns into this suit. The rule in the national. courts regarding the necessity of bringing in parties to suits in equity, and the reasons for it, have been thus stated by this court:

"The general rule in chancery is that all those whose presence is necessary to a determination of the entire controversy must be, and all those who have no interest in the litigation between the immediate parties, but who have an interest in the subject-matter of the litigation which may be conveniently settled therein, may be, made parties to it. The former are termed the necessary, and the latter the proper, parties to the suit. The limitation of the jurisdiction of the federal courts by the citizenship of the parties, and the inability of those courts to bring in parties beyond their jurisdiction by publication, has resulted in a modification of this rule, and a practical division of the possible parties to suits in equity in those courts into indispensable parties and proper parties. An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree between the parties before the court cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Every other party who has any interest in the controversy or the subject-matter which is separable from the interest of the parties before the court, so that it will not be immediately affected by a decree which does complete justice between them, is a proper party. Every indispensable party must be brought into court, or the suit will be dismissed. The complainant may join every proper party who would have been a necessary party under the old chancery rule, unless his joinder would oust the jurisdietion of the court as to the parties before it, or unless he is incapable of being made a party by reason of his absence from the jurisdiction of the court or otherwise. If, however, such a party is incapable of being made a party, or if his joinder would oust the jurisdiction of the court as to the parties before it, the suit may proceed without him, and the decree will not affect his interests. Rev. St. $$ 737; 738 [U. S. Comp. St. 1901, p. 587]; Equity Rule 47; Chadbourne's Ex'rs v. Coe, 2 C. C. A. 327, 51 Fed. 479, 480, 481; Shields v. Barrow, 17 How. (U. S.) 130, 139, 15 L. Ed. 158; Ribon v. Railroad Co., 16 Wall. (U. S.) 446, 450, 21 L. E. 367; Coiron v. Millaudon, 19 How. (U. S.) 113, 15 L. Ed. 575; Williams v. Bankhead, 19 Wall. (U. S.) 563, 22 L. Ed. 184: Kendig v. Dean, 97 U. S. 423. 24 L. Ed. 1061; Alexander v. Horner, 1 McCrary (U. S.) 634, Fed. Cas. No. 169: Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. (U. S.) 685, Fed. Cas. No. 2,990." Sioux City Terminal R. & W. Co. v. Trust Co. of N. A., 27 C. C. A. 73, 75, 82 Fed. 124, 126; Wood v. Dummer, 3 Mason (U. S.) 308, 30 Fed. Cas. 435 (No. 17,944).

Byrns is not a necessary party to this suit because he has assigned all his interest. Perry on Trusts, § 882; Goodson v. Ellisson, 3 Russ. 583. But the United States Mines Company and Bradburn are necessary parties under the old chancery rule, because their presence is requisite to a determination of the entire controversy which has arisen under the right of Byrns. They are not, however, indispensable parties under the rule of the national courts, because a final decree can be rendered herein between the complainants and the defendants, which will completely adjudicate their rights, without binding or injuriously affecting the rights of the Mines Company and Bradburn. The Mines Company and Bradburn should therefore be brought into this suit and made parties to the bill, unless the complainants make it appear by proper averments therein either that they are absent from the jurisdiction of the court, or that their joinder would oust its jurisdiction as to the parties before it, or that the parties similarly situated with the complainants are so far unknown or so numerous that the complainants may maintain this suit under the established rules of practice in equity on behalf of themselves and all others similarly situated, without bringing the latter into the suit by name. Story's Eq. Pl. §§ 96, 113, 114a, 120, 121, 134; Hoe v. Wilson, 76 U. S. 501, 19 L. Ed. 762.

But this defect of parties will not sustain a decree of dismissal of a

bill on the merits, or upon the ground that there is no equity in it. In the case of such a defect the bill must be retained, opportunity must be given to the complainants to amend it and to bring in the necessary absent parties, or to show why it is impracticable to join them, and only upon their failure so to do after reasonable opportunity may the bill be dismissed on this account. Hoe v. Wilson, 76 U. S. 501, 504, 19 L. Ed. 762; Wood v. Dummer, 30 Fed. Cas. 438 (No. 17,944); 2 Perry on Trusts (4th Ed.) § 881.

Our conclusions are that this bill shows that this is a suit to enforce specific performance of Maitland's agreement with Byrns in 1902, and to compel the execution of the trust which was created by that agreement and by its performance on the part of Byrns; that it is not conditioned by the rules of practice which govern stockholders' suits; that the complainants, the assignors of definite parts of the rights of Byrns, are qualified to maintain the suit; that in equity they are the owners of the stock of the Penobscot Company, which appears from the bill to have been assigned to them under Byrns; and that they have a good cause of action for the relief they seek, but that their bill shows a defect of parties. The decrees below, that there was no equity in the bill and that it be dismissed upon the merits, were therefore erroneous. They must be reversed, and the case must be remanded to the court below, with directions to permit the complainants within a reasonable time to amend their bill and to bring in other proper parties, or to show by their amendment why they should not pursue this course, and to take further proceedings not inconsistent with the views expressed in this opinion. It is so ordered.

MORRISON et al. v. BURNETTE et al.

(Circuit Court of Appeals, Eighth Circuit. July 10, 1907.)

No. 2,529.

1. APPEAL AND ERROR-ASSIGNMENT REQUISITE FOR ERRORS NOT JURISDICTION

AL-CROSS-ERRORS NOT ASSIGNABLE.

An appellate court will notice without objection or assignment the lack of jurisdiction of an inferior court.

Cross

But alleged errors in the exercise of its jurisdiction can be presented only by appeal or writ of error and a proper assignment of errors. errors are not judicable in a federal appellate court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1166; vol. 3, Appeal and Error, §§ 2968, 2971.]

2. APPEAL-RECORD BILL OF EXCEPTIONS-UNNECESSARY IN EQUITY.

A bill of exceptions has no function and is unnecessary in an equity proceeding in the absence of a trial of some issue by a jury, because the appeal brings the entire record, including the evidence, objections, and exceptions, to the appellate court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error,

$2437.]

3. COURTS APPEALS TO COURT OF APPEALS OF INDIAN TERRItory Taken as to COURT OF APPEALS OF EIGHTH CIRCUIT.

Appeals to the Court of Appeals of the Indian Territory from orders, judgments, and decrees of the trial courts made in the exercise of their probate jurisdiction must be taken, and the practice therein is governed,

by the method of taking and the practice in appeals from the Circuit Courts to the Circuit Court of Appeals of the Eighth Circuit (Act March 3, 1905, c. 1479, § 12, 33 Stat. 1081 [U. S. Comp. St. Supp. 1905, p. 150), and not by sections 1385, 1386, Mansf. Dig. Ark.

4. INDIANS-MINORS' ALLOTMENTS-SECRETARY OF INTERIOR HAS NO JURISDICTION OF LEASES OF.

Leases of allotments of Indian minors in the Indian Territory, confirmed and approved by the trial courts of that territory since April 26, 1906, are not subject to the approval or disapproval of the Secretary of the Interior, but the orders of the courts confirming and approving them are final.

5. APPEAL AND ERROR-FINAL DECISION-ORDER AVOIDING CONFIRMATION OF SALE OF LEASE IS.

A decision which completely determines the rights of parties in the pending proceeding, who are not jointly liable with others, is a final decision, reviewable by appeal or writ of error under the acts of Congress.

An order which avoids a confirmation of a sale and an approval of a lease of an allotment of an Indian minor is a final decision, because it completely determines the right of the purchaser thereunder.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 381.]

6. JUDICIAL SALES-AVOIDANCE-EFFECT OF RULE THAT COURTS HAVE POWER OVER ORDERS AND DECREES DURING TERM.

The general rule that the courts have power over their judgments, decrees, and orders during the term at which they are rendered does not give them jurisdiction to avoid confirmed judicial sales without cause at the term at which they are confirmed, because the rights of purchasers vest thereunder upon confirmation.

The only effect of this rule on such sales is to enable the courts to consider alleged causes for avoiding them during the term on motions or orders to show cause upon due notice, without the filing of formal bills for that purpose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Judicial Sales, §§ 72, 80.]

7. SAME

BEFORE CONFIRMATION OPENING for FurtheR BIDS ALLOWABLE FOR GREAT INADEQUACY OF PRICE AND SLIGHT UNFAIRNESS.

A successful bidder under an order or decree of court at a sale which is subject to confirmation by the court is a purchaser from the announce ment of the sale to him by the officer, and may thereafter be compelled to complete his purchase.

Before confirmation a sale will not be set aside for mere inadequacy of price, unless it is very great; yet, if the inadequacy be great, slight circumstances of unfairness in the conduct of the party benefited will be sufficient to open it for farther bids.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Judicial Sales, § 55.1

8. SAME-VOIDABLE AFTER CONFIRMATION FOR FRAUD OR MISTAKE ONLY-IT MAY NOT BE OPENED FOR BETTER BIDS.

After confirmation of a judicial sale the rights of the purchaser have vested. Neither inadequacy of price, nor offers of higher prices, nor anything but fraud, mistake, accident, or some other cause for which equity would avoid a like sale between private parties, will warrant a court in avoiding the sale or in opening it for other bids.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Judicial Sales, §§ 66, 77.]

(Syllabus by the Court.)

Appeal from the United States Court of Appeals in the Indian Territory.

Pursuant to an order of the United States Court in the Western District of Indian Territory, which has the jurisdiction of a probate court, a lease of 160 acres of mineral land which had been allotted to Edith Durant, a minor Indian, was advertised for sale on sealed bids by Monday Durant, her guardian, and on the day of sale, March 5, 1906, the highest bonus bid for it was $3,490, and this bid was made by Robert W. Morrison, Charles W. S. Cobb, John E. McKinney, William J. Breene, and Frank M. Breene, who are now the appellants in this case, and will hereafter be so styled. The Laurel Oil & Gas Company, a corporation, one of the appellees, bid at the same time at this sale $2,850 for this lease. On March 7, 1906, the appellants deposited the $3,490 with the court, and on March 9, 1906, the guardian executed the lease of the land to the appellants, and they applied to the court for the confirmation of the sale and the approval of the lease. After notice to all parties in interest, and a hearing, the court on June 11, 1906, "ordered, adjudged, and decreed that the lease executed by Monday Durant, guardian of Edith Durant, minor, on the 9th day of March, 1903, [to the appellants] be, and the same is hereby, in all things approved, ratified, and confirmed." On the next day the Laurel Company, the unsuccessful bidder at the former sale, made a motion for leave to bid again for the lease of this land, and offered to bid a bonus of $8,000. Thereupon the court set aside the order of June 11, 1906, for the sole reason that a higher bonus could be obtained, and on June 14, 1906, it sold a lease of 80 acres of this land on the same terms as the former to the Galbraith Oil & Gas Company for a bonus of $16.800 and a lease of the other 80 acres on the same terms to the Laurel Oil & Gas Company for $2,000. The leases to these parties were subsequently made by the guardian, and the court confirmed these sales and approved these leases. The appellants then sued out a writ of error from the Court of Appeals of the Indian Territory to reverse the order which set aside the decree of confirmation of the sale and of approval of the lease to them, and they also appealed from that order. The Court of Appeals of the Indian Territory consolidated the two cases, heard them as an appeal in equity, and affirmed the order below, because the court was evenly divided in opinion. The appellants have brought the latter judgment here by writ of error, and also by appeal.

Since the case came to this court the controversy over the 80 acres leased to the Galbraith Oil & Gas Company has been settled, and the only dispute remaining relates to the 80 acres leased to the Laurel Oil & Gas Company under the second lease.

W. J. Breene and J. J. Shea (W. B. Homer and Edmond C. Breene, on the brief), for appellants.

George A. Murphey (William T. Hutchings and William P. Z. German, on the brief), for appellees.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

As this is a proceeding in equity, the writ of error must be dismissed, and the case must be considered and decided upon the appeal, and it is so ordered.

The real question in the case is: May a court of equity, during the term at which the confirmation is made, lawfully avoid an executed judicial sale which it has confirmed, on the sole ground that a larger price may be obtained by a second sale?

Before entering upon the consideration of this question some preliminary objections must be considered. Counsel for the appellees insist that this issue is not within the jurisdiction of this court (1) because the writ of error issued by the Court of Appeals of the In