showing that defendant, having notice of the suit by service of the writ, was prejudiced by the mistake of the clerk. [Ed. Note.-For other cases, see Judgment, Dec. Dig. § 143.*] 3. JUDGMENT (§ 447*) - VACATING DEFAULT JUDGMENT-GROUNDS - MERITORIOUS DE FENSE. Equity will not restrain the levy of an execution, or vacate a default judgment, not obtained by fraud, accident, or surprise, unless defend ant has a meritorious defense. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 849-851; Dec. Dig. § 447.*] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Suit by Samuel Needle against H. C. Biddle & Co. and another. From a decree for a preliminary injunction enjoining a levy and sale under execution until further order of the court, respondents appeal. Reversed and remanded, with directions to vacate the decree. Edward C. Stiness and Frederick W. O'Connell, for appellants. Peter J. Quinn, for appellee. PARKHURST, J. This is a bill in equity to restrain the levy of an execution and to vacate a judgment; and the case is before this court on respondents' appeal from a him, and, so far as appears, is entirely consistent with an intention on his part not to defend the action, but to allow it to be defaulted. His first appearance before the Tenth district court appears to have been in May, 1910, after judgment had been entered by default, and execution issued and levied on his goods and chattels, when he moved said district court to stay execution and vacate the judgment, on the ground that the certification to the superior court of this unanswered case for a jury trial, its remaining there for some days, and being subsequently sent back to the district court, and its final disposition there by the entry of judgment by default, was irregular, and operated as a discontinuance of the case. The whole conduct of the complainant, as shown by his bill, was mere negligence, and he cannot be heard now to complain of any of the proceedings taken, when it was within his power, if he had seen fit, to have appeared and defended the suit at the proper time. It is no matter for surprise that the district court refused to stay execution and vacate its judgment, if the complainant (then defendant) made no better showing of reasons therefor than now appear in his bill in equity. [2] Furthermore, the plaintiff in the original action did nothing with regard to the decree of the superior court, granting a pre-removal of the suit from the district court The defendant in the suit had, by the serv-27 R. I. 42, 47, 50, 60 Atl. 635. That case ice of the writ, all the notice of the pendency of the suit to which he was by law entitled. He is not shown to have been injured by reason of any of the proceedings of which he now complains, and in view of his utter negligence and failure to show any cause we think the district court was right in refusing to stay its execution or to vacate its judgment and reinstate the case for trial. liminary injunction restraining the respond ents from proceeding with the levy and sale under execution. H. C. Biddle & Co. enter ed a writ in the Tenth district court against Samuel Needle on December 28, 1909, and the plaintiff claimed a jury trial on the entry day. The case was not answered; but it was certified to the superior court, on the next court day after entry, under Court and Practice Act 1905, § 273, and when it reached the superior court it was returned to the Tenth district court, because it was unanswered and so was not in order for a jury trial, and was defaulted in said district court on April 25, 1910. Execution was taken out and levied; and on June 3, 1910, this bill was filed by Needle in the superior court to restrain the levy of execution and to vacate the judgment. July 20, 1910, the superior court entered a decree for a preliminary injunction, enjoining the levy and sale until further order, and from this decree the respondents appealed to this court. [1] The bill nowhere alleges that the judgment was obtained by any fraud, accident, or surprise, or that there was lack of service of the writ, or that the complainant failed to appear and plead to the action, and to defend the same, by reason of any accident or mistake or unforeseen cause. It shows no reason or excuse whatsoever for the complainant's failure to appear and defend the action. It is not even alleged that he employed an attorney to appear for to the superior court, except to claim a jury trial in writing upon the entry day of the writ, as he had a right to do, under Court and Practice Act 1905, § 272. The mere fact that the clerk of the district court sent the papers to the superior court, without waiting to see whether the case was answered or not, was not due to any act or fault on the part of the plaintiff, but was due merely to a failure on the part of the clerk to fully appreciate the provisions of Court and Practice Act 1905, § 271, providing for continuance of unanswered cases for one week and their subsequent default in case they remain unanswered, and to consider the provisions of said section 271 as paramount to and controlling the provisions of section 273, regarding certification of cases to the superior court for a jury trial. It was a perfectly proper proceeding for the superior court to send back the papers to the district court, under these circumstances, as it appeared to be an unanswered case which should have remained and been defaulted in the district court, and in which no issue had been made which needed a jury trial. All these proceedings of certification by the clerk of the district court, and remission by the superior court, were done without any intervention of the plaintiff in the suit, and did not in any way work a discontinuance of the case, and should not be allowed to work any prejudice to the plaintiff in the maintenance of his suit. [3] But the bill is fatally defective in another essential particular. It contains no allegation, or even suggestion, that the complainant had or has any defense whatever to the original action. It is a well-settled principle of equity that an injunction will not issue to restrain the levy of an execution, or vacate a judgment, unless it appears from the bill that the complainant has a meritorious defense to the action. "It is not the province of equity to correct mere technical wrongs. A party seeking its aid must show some substantial injury. It frequently happens that a judgment is obtained by fraud, accident, or surprise, although the same result would be reached if an adversary trial had been had. In such a case the defendant at law is equitably bound to pay the amount of the judgment, and equity will not interfere to relieve him. The fraud, accident, or surprise is, in such a case, mere technical wrong. Hence it is laid down that equity will not relieve from judgments in general, unless a meritorious defense is shown, so that on re-examination and retrial of the case the result would be different. This rule is universal as to judgments obtained merely by fraud, accident, or surprise. In cases where the ground of attack on the judgment is want of jurisdiction, as where there is no service of summons, there is a conflict of authority; but the prevailing view is that even there a good defense on the merits must be shown." 6 Pomeroy's Eq. Jur. § 667. See, also, 1 Black on Judgments, §§ 347, 348. As we have shown above, the judgment in this case is not alleged to have been obtained by fraud, accident, or surprise; nor does it appear that there was any want of jurisdiction, for lack of service, or for any other reason. This court has gone to the full extent of the doctrine quoted above from Pomeroy in the case of Opie v. Clancy, * * * was much more extreme than the present, as the court found that the trial justice who heard it was without jurisdiction to do so, whereas there is no question in this case as to the jurisdiction of the court. The court say: "Our finding that the assistant justice was unauthorized to act in the premises, however, is not decisive of the case. It is a rule that applications for relief in equity against judgments at law will be scrutinized closely, and that an injunction to prevent the enforcement of the same will not be granted, except upon facts which show the clearest and strongest reasons for the interposition of chancery; that courts will not entertain a party seeking for relief against a judgment which has been rendered against him in a court of law, in conse quence of his default in regard to steps which he might successfully have taken in the court of law, unless some reason founded in fraud, surprise, or some adventitious circumstances beyond the control of the party is shown to excuse such default. Am. & Eng. Ency. L. (2d Ed.) vol. 16, p. 374. Where a party having a meritorious defense is by accident, unmixed with negligence on his part, prevented from making his defense or from taking steps for the preservation of his rights, * * a court of equity has power to grant relief by enjoining the judgment. Mere accident, however, though unmixed with negligence of the party, will not of itself furnish a ground for relief in equity. It must clearly appear to the court that it would be contrary to good conscience to allow the judgment to be enforced; in other words, a meritorious defense must be alleged and proved. It must appear that the accident was unavoidable, and in no way attributable to the negligence of the party seeking equitable relief." * * * In view of these well-settled principles, we are of the opinion that the complainant has utterly failed to show any right to the interference of a court of equity for his relief, that the decree of the superior court granting a preliminary injunction was erroneous, and must be vacated. The respondents' appeal is therefore allowed, and the cause is remanded to the superior court, with direction to vacate the decree appealed from, and for further proceedings. 1. MORTGAGES (§ 188*)-POSSESSION AND CONTROL OF PROPERTY-BEFORE DEFAULT. The relation between the mortgagor and the mortgagee before default is that of a holding by the mortgagor in subordination to the title of the mortgagee. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 469; Dec. Dig. § 188.*] 2. MORTGAGES (§ 191*)-POSSESSION AND CONTROL OF PROPERTY-AFTER DEFAULT. The relation between the mortgagor and the mortgagee after default is that of a holding by the mortgagor in subordination to the title of the mortgagee, unless it is shown to have been interrupted by positive and notorious acts on the part of the mortgagor, or his successors in title, which have been brought to the mortgagee's notice, or are of such a character as would ordinarily come to his notice. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 476; Dec. Dig. § 191.*] 3. MORTGAGES (§ 143*)-ESTATE OF PARTIES ADVERSE POSSESSION. Where a mortgagor, though protesting a foreclosure, continued in possession after default for about five years, and then brought a bill in equity for an accounting, wherein the mortgage was held valid, and thereafter continued in possession for nearly ten years, during which time the taxes and insurance were paid by the original mortgagee, and in which the mortgagor was not shown to have made any repairs to the premises, and the testimony failed to show that any notice was brought to the mortgagee of intention on the part of the mortgagor to hold adversely to the mortgagee's title, prior to the filing of a bill in equity the mortgagor acquires no interest by ten years' adverse possession. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 282; Dec. Dig. § 143.*] 4. MORTGAGES (§ 143*)-ADVERSE POSSESSION -PRESUMPTIONS. The presumption is that the possession of the mortgagor after foreclosure of a mortgage is held in subordination to the title of the purchaser. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 282; Dec. Dig. § 143.*] Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Action by the First National Bank of Pawtucket against George E. Dispeau and others. Judgment for plaintiff, and defendants bring exceptions. Exceptions dismissed, and case remitted, with direction to enter judgment for plaintiff. Tillinghast & Collins, James C. Collins, and W. Arthur Countryman, Jr., for plaintiff. Frank T. Easton, for defendants. BLODGETT, J. This is an action of trespass and ejectment, brought by the First National Bank of Pawtucket against George E. Dispeau, Minnie J. Dispeau, and Florence J. Dispeau, to recover possession of a certain piece of real estate situated in the city of Pawtucket, and is before this court on de fendants' exceptions to the direction of a verdict for the plaintiff by the superior court. The real estate was formerly owned and occupied by the father of the defendants, one George Dispeau, for many years prior to his death. It was occupied by George Dispeau and his children at the time of his death in 1909, and has continued in the occupancy of his children, the defendants, since his death. In 1892 George Dispeau gave a mortgage upon this property to the bank to cover an indebtedness which was then ac knowledged to be due by him to it. In June, 1894, default having been made in the conditions of this mortgage, it was foreclosed, and the title purchased by the bank, and George Dispeau continued to live on the premises with his family until his death. On December 19, 1899, a bill in equity was filed in this court against the bank (this plaintiff) by George Dispeau for an accounting between the bank and himself, and also claiming that the mortgage was invalid, inasmuch as it had been obtained by coercion. The case was contested before this court, and in an opinion given by the court it was held that the mortgage was valid. See Dispeau v. First National Bank of Pawtucket, 24 R. I. 508, 53 Atl. 868. This suit in equity was brought by bill of complaint filed December 19, 1899. Service of subpœna was made upon the bank December 20, 1899, and final decree was entered December 3, 1902, dismissing the bill. The present action of trespass and ejectment was brought by writ issuing out of the district court of the Tenth judicial district December 2, 1909, which was served upon the defendants December 3, 1909, within a period of ten years from the commencement of the equity suit. The statutory period of required adverse possession had not elapsed since the commencement of the other suit. The relation of a mortgagor holding possession in subordination to the title of the mortgagee is thus shown to have existed from 1892 to 1894, and from 1894 to December 19, 1899, as far as the evidence goes, the possession of George Dispeau was that of a mortgagor continuing in possession as a tenant at will or sufferance, holding in subordination to the title of the mortgagee. There is no evidence in the case upon which a contrary contention can be shown, except the testimony of one Mr. Aldrich as to a protest against the foreclosure sale in 1894, as follows: "Witness: But he said-in regard to the sale he said, 'Gentlemen, if you bid on this property, you can't get a clear deed and title of it.' And he says, 'I object to this sale.' Mr. Collins: What did he say? Witness: That he objected to the sale." It was against this right to exercise the power of sale given by himself that he protested. This power has been held to have been valid. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 79 ATLANTIC REPORTER This protest was not followed by further acts or notice after the sale tending to contradict the nature of the holding, which is presumed to have been friendly and not adverse. Moreover, the testimony of William H. Park, the cashier of the bank, was as follows: "Q. 134. As cashier of the bank you were the active man there for a good many years, weren't you? A. Yes. Q. 135. For the last 20 years at least you have been the active man at the bank, haven't you? A. Mr. Arnold and myself." "Q. 67. Were you present when this mortgagee's sale. was made? A. I think so." "Q. 77. Did you not know that during that period, from the time of the mortgagee's sale under this deed down to Mr. Dispeau's death, from him, that he held that property-from him or his authorized representatives that he held that property denying the title and right of the First National Bank? A. I never heard of such a thing." [1, 2] The relation between the mortgagor and the mortgagee is that of a holding by the mortgagor in subordination to the title of the mortgagee and this relation continued after the foreclosure of the mortgage, unless it is shown to have been interrupted by distinct, positive, and notorious acts on the part of the mortgagor or his successors in title, which have been brought to the attention of the mortgagee, or are of so notorious a character as would ordinarily come to his attention. [3] Nothing has been shown in the testimony offered in this case which would indicate a clear, distinct, and notorious holding on the part of the defendants and their ancestor hostile and adverse to the title of the plaintiff. No attempt was made on their part to pay the taxes which have annually been paid by the plaintiff, and there is no evidence that they have made any repairs to the premises. The bank paid the insurance. They were simply tenants at will or sufferance, and have never made any disclaimer | to change this possession. V. [4] The presumption is that the possession of the mortgagor after the foreclosure of the mortgage is held in subordination to the title of the purchaser until a contrary intention is made manifest. In the case of Doyle Mellen, 15 R. I. 523, at page 526, 8 Atl. 709, at page 711, Stiness, J., said: "Whether we regard one who owns the equity of redemption as a tenant, or as one holding in privity with and subject to the mortgagee's right of entry, his holding is not inconsistent with the title of the purchaser at the mortgagee's sale. There is, therefore, no adverse holding, no ouster of the owner, and no disseisin, 'until the possession before consistent with the title of the real owner becomes tortious and wrongful by the disloyal acts of the tenant, which must be open and notorious, so as to preclude all doubt as to the char acter of the holding or the want of know!. (R. I. edge on the part of the owner.' Zeller's Lessee v. Eckhert, 4 How. 289, 296 [11 L. Ed. 979]; Jones on Mortgages, §§ 672, 703, and change its character by an owner's giving a cases cited. A tenant's possession does not deed to another. If one was not in hostile occupation before the deed was given, he would not be afterwards until some change should show that the possession had ceased to be subservient and had become adverse. In this case the defendant was rightfully in possession at the time of the sale. His holding was not adverse to the purchaser, who permitted him to remain in occupation, and nothing occurred afterwards to change the character of the holding on the part of the defendant. It follows, therefore, that there assigns, and that their deeds were not inwas no disseisin of the mortgagee and his valid on that account." See, also, Searle v. Laraway, 27 R. I. 557, 559, 65 Atl. 269. was brought to the bank of an intention on The testimony fails to show that notice the part of George Dispeau to hold the property adversely to its title prior to the filing of the bill in equity. justice admitting and excluding testimony, We find no error in the rulings of the trial and the defendants' bill of exceptions is dismissed, and the case is remitted to the supe rior court, with direction to enter judgment for the plaintiff. (33 R. I. 1) UNITED NAT. BANK v. TAPPAN et al. 1911.) 1. BANKRUPTCY (§ 140*)-OWNERSHIP OF PROPERTY-PLEDGED PROPERTY. securities had been pledged for margin, had only Where a bankrupt stockbroker, to whom exercised his right to repledge the securities, and had not sold them, whether he was entitled mination of the rights of the pledgors to the to sell the securities was immaterial to a deterproceeds as against general creditors, after payment of the debt for which they had been reof sale in the broker did not of itself establish pledged, since the mere existence of the power a general property in him. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. § 140.*] 2. BROKERS (§ 24*) - PURCHASE ON MARGIN RELATIONS. margin through a broker, the relation of pledg- Cent. Dig. § 19; Dec. Dig. $ 24.*] Where a bankrupt, a stockbroker, having the defendant's own property included in the the bankrupt having been paid by the collec-erty being the surplus of a pledge made to tion of the bank's claim out of the pledged collaterals, the original pledgors thereby became sureties for the bankrupt, and were entitled to subrogation to the bank's claim, so far as to entitle them to the balance of the proceeds of the collateral repledged, as against the bankrupt's general creditors and trustee in bankruptcy. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. § 140.*] 4. BANKRUPTCY (§ 140*) - OWNERSHIP OF PROPERTY-TRACING TRUST FUNDS-NECES SITY. Where customers of a bankrupt stockbroker pledged collaterals to him for margins, and he repledged them, paying his own debt at a bank, by which they were in part sold to satisfy the bank's claim, they were not required to trace their holdings into the surplus realized by the bank in order to recover the surplus of the proceeds so remaining; their rights resting in contract, and not as a result of their being beneficiaries of a trust. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. § 140.*] 5. APPEAL AND ERROR (§ 871*)-EXCEPTIONSREVIEW. Exceptions to a master's report, relating to rulings which are merged in findings of the master which are themselves subjects of other exceptions, cannot be made the basis of separate grounds for review. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3526-3529; Dec. Dig. § 871.*] 6. CORPORATIONS (§ 123*)-PLEDGE OF STOCK -STATUTES. Gen. Laws 1896, с. 177, § 20 (Gen. Laws 1909, с. 213, § 20), providing what shall be a sufficient delivery to transfer title, does not define, vary, or enlarge agreements or contract relations between pledgors and pledgees of corporate stock; whether the transaction constitutes a pledge or an absolute transfer depending on the intention and agreement of the parties. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 123.*] Case Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Interpleader by the United National Bank against Lewis H. Tappan and others. An order having been entered on a master's report awarding the balance of the proceeds of certain securities pledged to Lewis H. Tappan, bankrupt, to the pledgors, the case was certified on exceptions to the master's report. Overruled. C. M. Van Slyck and Frederick A. Jones, for complainant. Lyman & McDonnell, Green, Hinckley & Allen, Comstock & Canning, Henry C. Hart, Nathan W. Littlefield, William J. Brown, and Mumford, Huddy & Emerson (Frederick W. Tillinghast and Rush Sturges, of counsel), for various respond ents. the complainant by the respondent Lewis H. Tappan, heretofore doing business as Lewis H. Tappan & Co., to secure the amount of an indebtedness of said Tappan to said complainant. Tappan was engaged in business in Providence as a banker and broker. The respondent Tillinghast is trustee in bankruptcy of the estate of Tappan (chosen since the commencement of this action). The respondent Billinge is assignee of Henry G. Thresher, a customer of Tappan. The respondent McDonnell is assignee of Henry A. Waterhouse, Charles Morris Smith, Jr., Elizabeth L. Pearce, William F. Leeder, David Bernkopf, Samuel K. Grover, Anita C. Baker, and Philip Allen, all of whom were customers of Tappan. The other respondents, Edward P. Greene, Anna F. Greene, George M. Parks, Helen A. P. Merriman, and James M. R. Taylor, were also customers of Tappan. The several respondents (other than Tappan and Tillinghast) and the said assignors of McDonnell and Billinge, in the course of dealings with Tappan, had each delivered to him certain of the stocks and bonds involved in this case, which, together with certain other stocks belonging to himself, Tappan repledged to the complainant to secure an indebtedness as above stated. On June 9, 1909, Tappan made a commonlaw assignment to the respondent Tillinghast, and later, on the 9th day of November, 1909, was adjudged bankrupt, and the respondent Tillinghast was chosen trustee in bankruptcy, and was by decree of the superior court, December, 3, 1909, permitted to intervene, and was made a party to this suit. On June 9, 1909, the pledge above mentioned remained unaltered in the possession of the complainant. Immediately thereafter the several respondents (other than Tappan and Tillinghast) and said assignors of McDonnell and Billinge gave notice to the complainant of their several claims to property in the pledge and demanded return of same. The respondent Tillinghast, first as assignee and later as trustee, also made claim to the property. The complainant resorted to the pledge and sold a portion thereof. After satisfying its claim, the property which is the subject-matter of this action remained. By stipulation it appears that the portion of the pledge which was sold was disposed of in such manner that the amounts realized from the sale of the several parts thereof can readily be ascertained. After the assignment by Tappan to Tillinghast, and before the commencement of this action, the parties named as assignors of the respondents McDonnell and Billinge severally assigned to them their right, title, and interest in and to the stocks, bonds, etc., JOHNSON, J. This is a bill of interpleader, brought by the United National Bank of Providence to determine the rights of the several respondents to certain bonds, shares of stock, and sums of money heretofore held by the complainant and now deposited in the registry of the superior court; the said prop- | which they had deposited with Tappan, and |