Page:Federal Reporter, 1st Series, Volume 8.djvu/618

604 FEDERAL REPORTER, �chines. The court of chancery had possession of this property. The proceeding was in rem, and it must be assumed that if the intention of the decree had been to convey merely the wood and iron composing a part of the property sold, without any right to use the same, sueh an intention would have been expressed in the decree. If Detweiler desired such a reservation, it was his duty, being a party, to apply for such a reservation, instead of which he gave express consent to a decree directing the sale, without any reservation. In my opinion a sale made under such circumstances has, as against Detweiler, the same effect as if he had himself sold the machines to the defendants, and gave to ,the defendants the right to use the machines. �Furthermore, those machines were part of the operating machinery of a factory. They hjid long been used in the factory, without objec- tion on the part of the owners of these patents. They were being so used when Detweiler became the owner of these patents, as he beyond doubt knew, and their use was continued without objection on his part ; nor did he ever intimate to any person that the right to use the machines had not been acquired by the parties possessing the same. The defendants purchasing the machines under such circum- stances were justified in the belief that, by their purchase, they acquired the right to use these machines as well as the rest of the macMnery. It must be assumed that this belief enhanced the price they paid for the machines, for, without the right to use, the machines were nothing but old iron. Detweiler was interested in increasing the proceeds of the sale, for he was to share in the surplus of the pro- ceeds after paying Croft's mortgage, and he took the chance of being benefited by the enhancement of the prico, and stood by and saw the machines sold without giving notice that the right to use did not pass with the right to the possession. If he intended to claim other- wise under the circumstances, being a party to the suit, having con- sented to the sale, and on former occasions having acquiesced in the right of the possessors of the machines to use them, it was his duty to have spoken. Having failed to speak when equity required him to speak, he will not now be heard to speak when equity requjres him to be silent. �Upon these grounds I am of the opinion that the bill should be dismiased, and with costs. ��� �