source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    SWIFT vs. FITZHUGH.
    ]. Where, by the laws of another State, a deed, or other instrument, is required to be recorded: if such deed or instrument be authenticated under the act of Congress, it will have the same effect in this State, that it was entitled to by the laws of the State whence it came.
    2. A deed, executed and duly recorded in another State, which, by the laws of that State,-is made evidence in her courts without further proof — is also, in pursuance of the act of Congress, evidence, without further proof of its execution, in this State.
    3. And a copy of an original deed thus authenticated, the original being lost, will have the same effect, as the original would have, if produced — both as to its contents, and the acknowledgment of its execution.
    4. The statute of this State, (Aik. Dig. 284,) authorises the Secretary of State to certify copies of the acts of the several States, on file in his office, and makes such certified copies evidence.
    5. And in such certificate, the part of an act relating to the subject in controversy, need only be set out: and not the whole act.
    6. Where plaintiff claims under a deed alleged to be lost — proof, that the original was placed in the hands of counsel, for the purpose of instituting the action; and that to obtain evidence of its execution, it was sent in a commission to one D, residing in Kentucky, who informed the witness by letter, that he had by mail forwarded the commission, deed, <fec.. in an enclosure, directed to the clerk of the court at Mobile; but which package, it appeared, never reached Mobile — is considered sufficient to establish the former existence of the deed, and its loss.
    7. The correspondence between D and the witness, is equivalent to a demand of the instrument; and is sufficient, D being a non-resident, without taking his deposition to prove the fact.

      8. The statute of eighteen hundred and twenty-four, (Aik. Dig. 207,) does not require proof of the execution of a deed, executed in another State, as a condition of its registration. The act presumes this to have been done in the county where the deed was executed: — and requires it to be recorded in the county to which the property covered by it is removed, for the purpose of giving notice of the incumbrance.
    9. A 'post-nuptial settlement, made in pursuance of an ante-nuptial agreement, is ndt within the letter or spirit of the terms “ deed of trust, mortgage, or other legal incumbrance,” as used in the act of eighteen hundred and twenty-four.
    10. And the act does not require such an instrument to be recorded.
    11. A witness, who has executed a deed, renouncing title to property, the validity of which he denies, is competent to prove its execution, although he may since have made a contract disposing of the property, to one of the parties to the action.
    12. It appears, that the objection, that a witness cannot be allowed to impeach an instrument of writing signed by himself —is confined to the interest of the witness, in the event of the cause.
    13. If a deed be obtained by duress, or by false and fraudulent practices — it has no legal existence: but where one signs a marriage settlement, the contents of which he does not know, or seek to know — it is equivalent to giving the grantee a carte blanche, as to its terms.
    14. Fraud is a question of law, though in general, left to a jury to determine : but where the facts are clear and undisputed, the question of fraud, or not, is a pure question of law.
    15. Where facts are not controverted, it is proper that the court charge directly upon them, and give the law of the case applicable to the facts, without doubt and without hypothesis.
    16. It seems, that where any material part of a charge asked for, is abstract, or not warranted by the evidence — the court will reject it altogether.

      Error to the Circuit court of Mobile.
    Detinue for a slave, tried by Pickens, J. Yerdict and judgment for plaintiff.
    The bill of exceptions stated, that plaintiff below relied for title on a deed of marriage settlement — which deed, she alleged was lost, and offered the following proof to establish the loss of the deed.
    The plaintiff’s counsel deposed, that he had in his possession, a deed delivered to him by one Thompson, the agent of plaintiff to institute this and other suits. Plaintiff resided in Virginia — the witness was not acquainted with plaintiff, and did not know her personally, but had correspondence with her, and received letters purporting to be from her, which he believed to be genuine, and in which the signature appeared similar to that in the deed: that he had not compared the papers purporting to be the original deed, with the certified papers in his possession, but had read both, and believed them to be similar. He further deposed, that to obtain proof of the genuineness of the deed, he procured a commission, directed to Gerrit Duncan, of Kentucky, and sent the deed there to get it proved: that lie inclosed the deed and commission to said Duncan, in Kentucky, and had been advised by letter from Duncan, that the deed had been inclosed back by him, by the post office, to the clerk of the court at Mobile, where it had not been received. The witness was not acquainted with Duncan, but had correspondence with him on this and other subjects, and believed his letter containing the information, genuine. The witness had written to the Post Master General, concerning the packet, hut was informed, in reply, that no such packet could be found in the General Post Office.
    The letter of Duncan contained the further information, that he did not appear before the commissioners, appointed by the court to take his deposition in this case, in relation to the premises, in consequence of the demands of his private business. An affidavit of the plaintiff, purporting to be taken before a justice of the peace in Kentucky, but whose hand writing, and whose official character, were not proven in any other way, except by the certificate of the clerk of the County court of the same county in Kentucky, under his seal of office, — containing the statement; — that the deed was attached to the deposition of G. H. B. Fitzhugh, which was regularly deposited in the post office, by the commissioners appointed to take his deposition, and that the said G.H. B.Fitzhugh could prove these facts, and that she verily believed .that the same were true, and that the deed was lost. The deputy clerk of the Circuit court of Mobile, proved that no such package had been received at the clerk’s office in Mobile.
    This proof defendant objected to, as insufficient to establish the loss of the deed, so as to admit secondary evidence; but the court overruled the objection — and secondary evidence was admitted.
    The following documentary proof was then offered:
    1. A transcript of what purported to be proof of a statute of Virginia — which was objected to, because it was only a portion of a statute; and because it was not sufficiently authenticated. But the same was allowed to be read to the court and jury. The transcript was from 1vol. pp. 361 of the Virginia Revised Code, viz: from the third to the thirteenth section of “an act to reduce into one act, the several acts for conveyances, and concerning wrongful alienations,” certified to be a true copy, by the Secretary of State of Alabama, under the seal of the State of Alabama.
    2. A transcript, purporting to be a copy of the deed, with the certificate of attestation appended, shewing it to be acknowledged and recorded in Virginia. This was also objected to — but admitted by the court.
    3. A transcript of the same deed, purporting to have been recorded in Mobile county. The book of record of Mobile county was also produced, shewing that this deed, with the certificates attached, were recorded in Mobile, on the seventeenth February, eighteen hundred and thirty-five. This was objected to, as not being proper evidence, and as being admitted to record without sufficient probate. The objection was overruled, and tire copy and recording in Mobile were read to the court and jury.
    In further aid of the proof of the deed, the plaintiff offered as a witness, John H. Maguire. It appeared that Maguire had the possession of the slave sued for in eighteen hundred and thirty-four, and hired him to defendant at eighteen dollars per month, and that the term of said hiring had not expired when suit was brought: said Maguire claimed the negro as his own, and hired him as such.. These facts appeared by the examination of Maguire, and defendant objected to his competency, because he could not testify to destroy a title he had himself given to defendant, against whom no notice was proved of plaintiff’s titles — which objection the court overruled.

      Maguire deposed — that about the time of the date of the paper purporting to be a copy of the deed, he did sign a paper or deed, but at the time of signing, did not read it. On the day he intermarried with Ann Maguire, formerly Ann Fitzhugh — the clergyman being present, and the parties ready for the ceremony, the plaintiff called the witness into an adjoining room, and required of him that he should agree to execute to her a deed of trust of his wife’s property, to secure it against accident: this he agreed, under the circumstances, to do. About two weeks after the marriage, the paper which he signed was presented to him, and he signed it. He did not read it, and did not recollect whether it was read to him or not — nor had he seen it since. He considered the deed as improperly obtained, and was unable to say whether the copy offered in evidence was a true copy of the original or not —If it was a true copy, the original contained stipulations different from what was agreed on verbally before the marriage. He did verbally agree to convey the property in trust for the use of himself, his wife, and the issue ; but not as provided for in the paper produced. The slave in question was a part of the property of his wife before marriage. The property mentioned in the deed, was the property contemplated to be conveyed. One of the justices, whose name is mentioned in the copy, was present when the deed was signed, and witness probably afterwards acknowledged it before the other justice, at a different time. He signed the deed in confidence that the plaintiff had procured it to be drawn as agreed uponj and did not suspect it to be different. There was no force or compulsion exerted over him, and if he had been disposed to read the paper — lie could have done so. There was no misunderstanding between him and plaintiff at that time, and no effort was made to prevent him from knowing the contents of the paper. No property had been delivered into his possession prior to the execution of the deed.
    Upon this evidence, the court ruled, that the deed, if valid in law, was sufficiently established by the copy, and the jury were to receive the copy as sufficiently established as a true copy of the original. The papers were thén severally read.
    Maguire further stated, that some time after his marriage, he removed, with his wife, to Alabama, — remained in Mobile some time, and in November, eighteen hundred and thirty-four, went to Virginia, with his wife, on a visit. He returned to Mobile in the spring of eighteen hundred and thirty-five — went again to Virginia — and in November of the same year, when about to leave for Mobile, his wife refused to go with him. A disagreement between witness and plaintiff bad taken place, — in February, eighteen hundred and thirty-six, witness and his wife separated, and an alienation has since that time existed.
    Plaintiff proved the value of the slave — the. value of the hire — and that the slave was in possession of defendant at the time the suit was brought.
    Defendant then proved by Maguire, that a short time after he arrived at Mobile, pursuant to previous arrangement, the plaintiff shipped the negroes to him. Maguire controlled the negroes as his own, and hired the slave sued for to defendant. He also proved the genuineness of a certain letter in the hand writing of plaintiff — which was read in evidence.
    Upon the evidence, the court charged the jury, that the deed was a marriage settlement — a description of deeds favored in law. The original being lost, the copy before them was evidence. If the deed had been obtained by fraud or duress, it would not be valid, but the circumstances were not sufficient to invalidate the deed for fraud. Fraud should be proved by such facts, as would in law amount to fraud. The deed vested the title in the trustee, and the plaintiff could prevail, notwithstanding the defendant was a hirer for a valuable consideration, without notice. Defendant could have secured his rights by warranty from Maguire — if he had desired it.
    The defendant requested the court to chargé, that if the jury believed the slave had been placed in the possession of Maguire, by plaintiff, to bo used and hired by him, and that he had hired the slave to defendant for value, and that defendant had no notice of plaintiff’s title, and that the time of hiring had not expired before suit brought: and if plaintiff had given her assent to the hiring, knowing the slave was hired — plaintiff could not maintain the action. This the Court refused, and charged the jury, that if they found from the evidence, that Ma-guire was the agent of plaintiff, and had hired the slave in pursuance of his authority as such agent, and had acted within the powers given him for that purpose, then it would be binding on the plaintiff: That the jury ought to be satisfied from the evidence, that Maguire was the plaintiff’s agent, and that it did not follow from the fact of her permission to the parties to bring the negroes to this country, and if it was to be inferred from the letter of the plaintiff in evidence — the jury would consider from the date of the letter and its terms, whether it was applicable to this hiring.
    The defendant further requested the court to charge the jury, that the recording of the deed in Alabama was unauthorised, which the court declined.
    The defendant further requested the court to instruct the jury, that unless some witness had proved the copies before them to be true copies, or one of them a true copy, compared with the original, they could not find that the deed was established. This the court also declined, and instructed the jury, that the copy was admitted by the court as a true copy.
    The deed was acknowledged before two justices — and the copy certified by the clerk of Stafford county, Virginia. The certificate of the presiding justice of the court of Stafford county, to the attestation of the clerk, was appended.
    The deed was as follows:
    “Thisindenture,made and entered into this eighteenth day of November, eighteen hundred and thirty-three, between John H. Maguire, of the first part, Fances P. Fitz-hugh, of the second part, and Ann F. F. Maguire, (late Ann F. F. Fitzhugh,) of the third part, all of the town of Fredericksburg. Whereas, a marriage has been lately had and solemnized, between the said John H. Maguire, and the said Ann F. F.; and the said Ann having been possessed of a considerable real and personal estate in Stafford county, the real estate consisting of a tract of land, consisting of sis hundred and seventy-two acres, and the personal estate consisting of the following slaves: to wit, Lucy, aged thirty-five years, and her two children, Matilda, aged eight years, and Melinda, aged five years; Nelson, aged thirty-two years; Simon, aged twenty-eight years; Polly,aged twenty-one years; Harrol,aged eight years; Emily, aged five years, and Edward, aged eleven years; and a lot of ground adjoining the town of Fred-ericksburg, which the said Ann F. F. inherited as one of the heirs and distributees of her father, the late John Bolling Fitzhugh; and the said John H. Maguire having promised and agreed, as one of the stipulations and agreements of the said marriage, that the said estate, both real and personal, should be so settled and secured, as to enure to the sole and separate use of the said Ann, after the said marriage, free from the control, debts or engagements of him the said John; and the said John H. Maguire being now desirous of fulfiling his said promise and agreement, by making the said settlement, according to the forms of law, and being unembarrassed in his circumstances, having an estate in his own right, far exceeding any debts he owes: — Now, this Indenture witnesseth, that for and in consideration of the premises, and of the sum of ten dollars, to him in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, he the said John H. Maguire hath given, granted, aliened, delivered and confirmed, and by these presents doth give, grant, alien, deliver and confirm, unto the said Frances F. Fitz-hugh, her heirs, executors, &c., all the right, title, interest and estate, of him the said John H. Maguire, acquired by virtue of his said marriage, in and to the aforesaid real and personal estate, and the increase of the female slaves. To have and to hold the said real estate and the said slaves, together with the future increase of the females, to her the said Frances F. Fitzhugh, her heirs, &c. forever, upon trust nevertheless, and for the following uses, interest and purposes, and no other, that is to say: in trust for the separate use and benefit of Ann F. F. Ma-guire, free from the claim or demand, control, debts, or engagements of him the said John H. Maguire, or of any person claiming by, through or under him; and it is hereby further declared, covenanted and agreed, by and between the parties to this Indenture, that the said Frances F. Fitzhugh, shall, and may from time to time, rent out the said land, aud collect the rents of the same, and shall and may either hire out, sell, or otherwise dispose of either the land or slaves, and their increase, in any manner which the said Ann F. 'F. Maguire may, or shall by any writing under her hand, direct and require, and shall appropriate the same, as shall be directed and required by the said Ann F. F. Maguire. And it is further covenanted and agreed, by and between the parties to this Indenture, that the said Frances F. Fitzhugh, trustree as aforesaid, shall, at the death of the said Ann F. F. Maguire, convoy, assign, pay over and distribute all and every part of the said real and personal estate, and the increase of the personal, or the proceeds thereof remaining in her hands at that event, to the person or persons, or in such way or manner, as the said Ann F. F. Maguire shall direct and appoint, by any act whatever, sufficient in law or equity, to pass the same, in as full a manner as if she were a feme sole, and not a married woman, and in default of such appointment, to be equally divided among the heirs of the said Ann F. F. Maguire, agreeably to the law of descents and the statute of distributions of Virginia; and the said Frances F. Fitzhugli, trustee as aforesaid, hereby covenants and agrees to and with the said parties, that she will faithfully perform the trusts hereby confided, and undertaken by her, faithfully and according to the true intent and meaning of these presents. In testimony whereof, the said parties have hereunto set their hands and affixed their seals, the day and year first above written.
    John H. Maguire, [seal.] ”
    Frances F. Fitzhugh, [seal.]”
    The plaintiff in error assigned:
    1. The court erred in permitting secondary evidence, of a supposed deed, upon the proof offered of the loss of the supposed original.
    2. The court erred in permitting the several copies of the deed to be read as evidence, and in permitting the copy of the act of the Legislature of Virginia to be read.
    3. The court erred in its charge to the jury, as to the effect of the said several copies, with the certificates thereon, as evidence.
    4. The court erred in permitting Maguire, the supposed grantor in said deed, to testify. ■
    5. The court erred in giving the several instructions which it gave to the jury, as also in refusing those prayed for by the plaintiff in error.

      Stewart, for the plaintiff in error.
    Campbell, contra.

      Campbell, for the defendant in error,
    contended—
    That there was ample proof to authorise the admission of the secondary evidence. The loss of the instrument was shown with reasonable certainty, and every presumption of a fraudulent suppression of the original by the defendant, repelled — (7 Peters, 99; 2 Rand. 539; 16 John. 193; 5 Peters, 242; 1 Peters, 591; 6 John. 195; 9 Cowen, 208 ; 9 Wheat. 581; 8 Porter, 529.)
    The certified copies were evidence — (3 St. & Porter, 81; 1 Porter, 310; 7 Pick. 10; 9 Pick. 25; Owings vs. Hall, 9 Peters.)
    A party relying upon a statute of a foreign State, is not required to produce more than lie relies upon — (5 Rand. 126.)
    1. The plaintiff had the legal estate in the property, and was competent to bring a suit for its recovery.
    By the separation between the husband and the wife, this became necessary — (5 St. & Por. 142.) The plaintiff could not set up a bona fide purchase in a court of law. That defence is exclusively of equitable cognizance — and is exerted in equity to protect a legal title from latent equities — (7 Peters, 252; 2 Story’s Eq. 1525; 4 Con. Ch. R. 430; 4 Dessausseur, 289.)
    The statutes of registration do not apply to this deed. The deed recites a stipulation before marriage, as its consideration, and was executed before a delivery of the property to the husband. The marital rights of the husband never attached to the property. Purchasers from him could therefore never hold against the grantee. The deed will be considered as relating back to the first agreement, and the conveyance, if unrecorded, would be void only as against the creditors of the wife — (5 Cranch, 154; 5 Rand. 211; 7 Peters, —; 5 St. & Por. 142.)
    2. The terms of our statutes do not embrace deeds executed out of the State, except where they are made to secure debts.
    3. That statute regulates the priority between creditors, and has no application to persons who hold by purchase — (Aik. Dig.)
   ORMOND, J.

The important questions arising in this case, will be considered in the following order.

First — was the evidence of the loss of the deed, executed by Maguire, sufficient to authorise proof of its contents, by secondary evidence? The rule as laid down by this court, in the case of Mordecai vs. Beall, at the present term, is decisive of this question.

The preliminary proof, in this case, (so far as it is necessary to state it,) is that the original deed was placed in the hands of the counsel for the defendant in error, to enable them to institute this and other suits; — that to obtain proof of the execution of the deed, it was sent with a commission, to one Garrett Duncan of Kentucky — and that Duncan had informed the counsel, by letter, that the deed had been enclosed in the commission, and with the deposition, forwarded by mail, to the clerk of the Circuit court of Mobile county. The deposition, with its enclosure, never reached Mobile. An effort had been made to take the deposition of Duncan, which failed, from his absence. The plaintiff below, who is a resident of the State of "Virginia, also made affidavit in Kentucky, to the' loss of the deed; but as that fact does not influence the opinion of the court it is not taken into consideration.

John EL. Maguire, one of the parties to the deed, was also introduced as a witness, by the plaintiff below, and proved facts, tending’ to prove that he executed the original.

We think this proof sufficient to authorise the introduction of secondary evidence of the contents of the deed.

That the deed once existed, and that it is now lost, is satisfactorily shown — and no inference can fairly be drawn, from the facts, that it is voluntarily withheld. The non-residence of Duncan sufficiently explains why the evidence of the person into whose hands the paper is last traced, is not before the court. And the correspondence between Duncan and the counsel for the plaintiff below is certainly fully equivalent to a demand of the instrument, which, when such holder is a non-resident, was held, in Mordecai vs. Beall, to be sufficient, without taking his deposition, to prove the fact.

Secondly — .was the evidence of the contents of the deed, produced in the court below, sufficient?

The evidence so offered, consisted, 1st. of the contents of a statute of Virginia, authorising the proof and registration of such deeds as the one in controversy. 2d. A transcript, purporting to bo a copy of the said deed, with the certificate of attestation appended thereto, showing it to be acknowledged and recorded in Virginia.

Thirdly — a transcript of the same deed, recorded in the office of the county court of Mobile county.

Fourthly — the evidence of John 31. Maguire, who had intermarried with the daughter of the plaintiff below, who deposed, iu substance, that about the date of the paper purporting to be a copy of the lost deed, he did sign a paper or deed, but that he did not read itthat said deed was made in pursuance to a promise he had made previous to his marriage, to execute a deed of trust of his wife’s property. — That he claimed the negro in controversy, as his own; and hired him to the plaintiff in error, as such. The plaintiff in error then objected to the competency of the witness, on the ground, that he could not testify, to destroy a title he had himself given. But the objection was overruled by the court, as were also objections made to the previous evidence, above cited. ■ These questions will ail be considered, in their order.

The copy of the Virginia statute is certified under an act of the legislature of this State, (Aikin’s Digest, 284,) which authorises the Secretary of State to certify copies of the acts of the several States, on file in his office, and makes such certified copy, evidence. The copy thus furnished, purports to be a copy of an act from the Virginia Revised Code, the title of which is, “An act to reduce into one, the several acts for conveyances, and concerning wrongful alienations.” It commences with the fourth section and ends with the twelfth. The certificate is in these words: “I do hereby certify that the foregoing is a true copy of the act within mentioned, or such sections thereof as are deemed material. And it is now urged, that the transcript must be rejected, because the whole act is not given.

If an act of the legislature always related solely to one subject, there would be some force in the objection; but we know the fací to be, that a single act of the legislature frequently embraces subject matters entirely distinct in their character, and which may be considered, when so blended, as distinct ptirllamenlary acts. The officer to whom this duty is by law entrusted, acts undef the sanction of his official oath, and we must presume that he has furnished the court with all of the act which relates to this particular subject. If the residue of the act be, as we must presume it is, irrelevant to-the controversy between the parties, it would be improper to bur-then the record with it. If, indeed, an extract of the law of another State, offered in evidence, affords internal evidence, that a material portion of the law is omitted, or if that fact be made to appear, in any other mode, the transcript would of course be rejected.

This point has been thus ruled,, in the case of Hunter vs. Fulcher — (5 Rand. Rep. 126.) In that case it was determined, that when a party in Virginia, relies on the law of another State, he may produce an authenticated copy of the section only on which he relies, and shall not be required to produce a copy of the whole law.

Was the copy of the deed with the authentication of the clerk of the court in which it was registered, evidence of the contents of the original ?

By the law of Virginia, a copy of which is found in the record, it appears that such instruments as we are now examining, arc by law required to be recorded““and any conveyance so recorded,” the act proceeds to say,, “shall have the same legal validity, in all respects, as if it. were proved in open court.” It is most manifest, then, that in Virginia, (the act of the legislature having been com-.plied with,) the original deed would have been evidence, without further proof of its execution, than was afforded by the certificates of the several officers, of its acknowledgment and registration. What effect is it to him, when offered in evidence to the courts of this State, on the same proof? The act of congress, in pursuance to which this copy is authenticated, piovides-that “the said records and exemplifications shall have such faith and-credit given them, in every court and office within the United States, as they have by law or usage, in the courts or offices of the State from whence the same are or shall be taken.” So that were the original deed here, no further proof would be required of its execution.

In Virginia, from whence this deed comes, it appears, by the case of Ben vs. Pute — (2 Sand. Rep. 539,) that a certified copy of a deed, recorded upon the acknowledgment of the grantor, though not required by law, to he recorded, is evidence against the grantor, and all claiming under him, of the execution of the original deed, it being lost; and by necessary consequence, such would be the law, in the case of a registered deed, required by law to be recorded — and in that case the court say, accordingly — “If this were a deed required by law, tobe recorded, there could be no difficulty in the question : copies of such deeds being every day admitted, without other evidence than their having been recorded.” To give effect, then, to the act of congress, we must give to the copy thus authenticated, the original being lost, the same effect the original would have, if produced, both as to its contents, and to the acknowledgment of its execution.

This has, in effect, been, heretofore, the decision of this court. In Mitchell vs. Mitchell — (.3 Stew. & Porter, 81,) one of the questions in the cause was, whether a copy of a deed, recorded in the State of Georgia, was admissible, as evidence, to prove the contents of a deed, the original being lost. The court held that it was properly excluded, as it was not shewn that, by the law of Georgia, such ^conveyanees ioere required to be recorded.

In the case of Tatum vs. Young — (1 Porter, 310,) the court re-affirm the doctrine held in the case just cited, and apply it to the case then before them. It is, therefore, clear, both on principle and authority, that where, by the law of another State, a deed or other instrument is required to be recorded, if such deed or other instrument be properly authenticated, under the act of congress, before referred to, it will have the same effect in this State,-that it was entitled to by the laws of the State whence it came. — See, also, Owings vs. Hull — (9 Peters’s Rep. 626.)

The offer in evidence of the record of the same deed, from the office of the county court of Mobile, could not possibly prejudice the plaintiff in error: it was at most a mere unnecessary act. The act of eighteen hundred and twenty-four, (Aikin’s Dig., 207,) under which the record seems to have been made, provides, “ that all property mortgaged, or under any deed of trust or other legal in-cumbrance, which may afterwards be removed, to any county in this State, shall be liable to the payment of any debts which the holder of such mortgaged property may contract after his settlement in such county, unless the mortgage, deed of trust or incumbrance, covering such property, removed, as aforesaid, shall be duly recorded in the clerk’s office of the county court of the county to which such property may he removed, within six months; unless the person bringing such incumbered property into any county in this State, shall have removed from another State; in which case, one year shall be allowed, for the recording of any such mortgage, deed of trust or other legal incumbrance, after such settlement, as aforesaid. — Provided, that after such record duly made, the provisions herein shall cease to take effect.”

The objection made to the introduction of this evidence, is, that it was admitted to record, without proof of its execution ; but it is manifest that this act does not require proof of the execution, as a condition of the registration of the instruments embraced by it. The act presumes that to have been done in the county where the transaction took place, and before the property was removed — and requires, upon its removal, that the deed shall be recorded in the county to which the property covered by the deed is removed; obviously, for the purpose only, of giving notice of the incumbrance.

What effect the act in question would have on property removed from another State to this, the property being incumbered by an instrument, which, by the law of this State, is required to be recorded, is not necessary now to be determined.

The deed in this case, is a post nuptial settlement, made in pursuance to an anti nuptial agreement; the execution of which, had it not been voluntarily made, a court of Chancery would have enforced. Such an instrument is not within, either the letter or spirit of the terms “deed of trust, mortgage or other legal incum-brance,” as used in the act of eighteen hundred and twenty-four. Property thus circumstanced, cannot, in any sense, legal or popular, be said to be incumbered, as that term always implies previous ownership, and a right to incumber, or subject property to the payment of a debt j whereas, in this case, Maguire never was the owner of the property — the instrument in question, being merely evidence of the renunciation, before marriage, of his marital rights. There was, therefore, no necessity imposed by the act of eighteen hundred and twenty-four, to record this deed, on the removal of the negroes from Virginia to Mobile.

The competency of Maguire, to testify as a witness in the cause, is resisted by the counsel for the plaintiff in error, on the ground, that it is against public policy, to permit a witness, circumstanced as he was, to testify— and also, because he was called as a witness, to destroy a title he had himself given.

The question, whether one, who had signed an instrument of writing, or who had, by his signature, given currency to negotiable paper, should be afterwards allowed to impeach it, has been fiercely contested, both in England and the United States. It is not necessary, now, to review the cases, but it is believed, that in England, at this day, and in most, if not all the States of the Union, the objection is confined to the interest of the witness, in the event of the cause. Such have been the decisions of this court. —■ See Todd vs. Stafford — (1 Stewart, 199) — Kennon vs. M’Rae — (2 Porter, 389,) and Carroll vs. Meeks — (3 Porter, 226.) But, in truth, the question does not arise here : the witness was not called to impeach the deed, but to prove that such a deed once existed. This is not, therefore, a case in which the rule invoked by the counsel, could apply, even if this court were disposed to admit its correctness.

Whether any case can exist, in which a witness may be allowed to impeach a title he has himself made, it is not necessary now to determine, as this witness was not called for that purpose, but to prove a separate and independent fact.

The contract between the plaintiff in error and the witness, was the hiring by the latter, to the former, of the slave in controversy, for a iimited time. This contract he was not called on to impeach, or deny. It is true, he was called on to testify as to other facts, which might assist in the conclusion of law, that he had no title to the property thus hired : But such consequences, or legal conclusions, can have no bearing on the rule of evidence, we are now considering. The admission of the fact, that anterior to the hiring, he had executed a deed, embracing the slave in question, the legal validity of which he denied, cannot, in any just sense be considered as impeaching the contract of hiring, or denying its validity. So far as he was concerned, it was valid.— The only question was, whether it was binding on the defendant in error. It follows that the court did not err, in admitting the witness to testify.

We will now proceed to examine the correctness of the charges given by the court, and the refusal to charge, as moved for, by the plaintiff in error.

The witness, John H. Maguire, stated on his examination, that about the time of the date of the paper, purporting to be a copy of the deed, he did sign a paper or deed ; but that at the time of signing it, he did not read it. — 'That about two weeks before, he had inler- * married with Anne Maguire, formerly Anne Fitzhugh. That just before the marriage, the company having assembled, and the parties ready for the ceremony, the plaintiff belosv, called said witness into an adjoining room, and required of him that he would agree to execute to her, a deed of trust of his wife’s property to secure it against accident, which he agreed to, under the circumstances, but which subject had never before been mentioned to him. He further deposed, that about two weeks after the marriage, the paper which he signed, was presented to him, and he signed it. — That he did not read it, and does not recollect if it was read to him or not, — he does not recollect that it was, and believes that it was not. — That if read by the person who drew it, at all, he cannot say, whether for his own benefit, or for the benefit of the witnesses. — That he had never seen it since. — That he considered the deed as improperly obtained from him, by the plaintiff below, at the time.— That he cannot say whether the paper offered as a copy, is a copy or not — not knowing what the original contained. — That if it be a true copy of the original, the original contains different stipulations from what was agreed on, verbally, before the marriage. — That by the verbal agreement, before the marriage, he agreed to convey the property, in trust, for the use of himself, his wife and the issue: but not as provided in the paper now produced. — That he signed the deed in the confidence that the plaintiff had procured it to be drawn, as agreed between them, and did not suppose it was different— that there was no force or compulsion exerted over him, and that if he had been disposed to have read the paper, he could have done so — that there was no misunderstanding between him and the plaintiff below, at that time, and no practice to prevent him from knowing the contents of the paper — that none of the property had been delivered into his possession, prior to the execution of the , paper. He afterwards acknowledged the execution of the deed.

Upon this evidence, connected with the documentary evidence already commented on, the court charged the jury, that the said deed was a marriage settlement, which was a description of deeds favored in law — that the original deed being lost, the copy before thenr was evidence of it, and to be received by them as a true copy in lieu of the original; and that if the original was valid, the paper before them was sufficiently established as a copy — that if the original was obtained by fraud or duress, the original would not he valid, but that the circumstances detailed by the witness, were not sufficient, in the opinion of the court, to invalidate the deed for fraud. That fraud should be proved by facts, which would amount, in law, to fraud. That the deed upon its face was valid and lawful, and that unless fraudulently obtained, or by duress, they were bound to give it effect.

The court further instructed the jury, that to maintain the action, it was not necessary that the plaintiff should produce any evidence that Mrs. Ann Maguire had given directions, in writing or otherwise, to the trustee, to maintain it — that the title of the plaintiff could prevail, notwithstanding the defendant was a hirer for valuable consideration, without notice that he could have secured his rights by warranty from Maguire, if he desired it, and hired the property at his risk, as to the true title. This opinion of the court is excepted to, and is assigned for error.

So far as the charge of the court relates to the documentary evidence, it has been already considered and sustained. It remains to consider it in reference to the fraud, supposed to be established by the evidence of Ma-guire, which will be examined in two aspects: First — - Whether the facts stated by the witness, amount in law to fraud ? Secondly — Whether the terms in which th@ charge is conceived, can be sustained ?

If a deed be obtained by duress, or by false and fraudulent practices, as, if it be falsely read to the party, or he be induced to execute it whilst in a fit of drunkenness-—such deed has no legal existence; and though free from, the vices just specified, it may be so wholly false and fraudulent, as to be void both at law and in equity.— But a court of law can hold no middle course, but must either give effect to, or wholly reject a deed — whilst a court of equity, by reforming it, and making it speak the true intention of the parties, can do exact justice between them. A court of law would not be authorised' to reject a deed, because it was obtained under suspicious circumstances; especially,'in a case where the deed was admitted in the main to be just, and the improper stipulations were not obtained or inserted by covin or circumvention, and could have been prevented by the exercise of ordinary diligence; for it is as true that the law seeks to do exact justice between man and man, as that it abhors fraud. In such a case, to permit a man to vacate the deed entirely, would be to enable him to profit by his own negligence.

This doctrine is illustrated by the language of Judge Roane, in the case of Taylor vs. King, 6 Munf. Rep. 366. In that case, Taylor had colluded with others to purchase a tract of land at a trust sale, at an under value, and did purchase it at less than one-sixth of its value, and obtained a deed therefor from the trustee. He afterwards brought an action of ejectment for the land. The jury rendered a special verdict, finding these facts, and the court rendered judgment for the defendant. On an appeal by Taylor, the Court of Appeals of Virginia hol'd this language:

“ The jury found a special verdict, detailing certain acts committed by the appellant at the time of the sale, which are fraudulent as to the defendant; and they also find them to be fraudulent. These facts tended to prevent competition at the sale, by'means of which it is also found the appellant got the land for about one seventh of its value. There is no doubt but that in a court of equity, these facts would vacate the sale, and the defendant be deemed to hold the land subject to the trust ; nor is there any doubt but that in a court of law, a fraud may be given in evidence to vacate a deed, if that fraud relates to the execution of the instrument; as if it be misread to the party, or his signature be obtained to an instrument, which he did not intend to sign. It would he too much, however, to vacate a bond at law, because a party was imposed on in a settlement of accounts, which preceded its execution, or a bond or deed, which was founded on a false or fraudulent statement of facts.” Many cases are cited in support of the position, to which may be added the case of Watt vs. Grove, 2 Schoule & Lefroy, 501, and Boyd vs. Dunlap, 1 Johns. Ch. R. 478.

Now, in this case, the witness expressly admits that there was no practice resorted to, to prevent him from knowing the contents of the deed. He is not certain whether it was read to him or not, but that he could have read it, i'f he had thought proper to do so, but that he signed it without examining it: he afterwards acknowledged it to be recorded. It would seem impossible to maintain that there was any fraud in the execution of this paper — nor is that contended — but it is insisted} that as the terms of the deed are not the same as those verbally agreed on before the marriage, and as it was signed in the confidence that the deed corresponded with the verbal agreement, that it amounts to fraud, and vacates the deed.

From the testimony of the witness, it appears that the ante-nuptial agreement was, that the property of the young lady was to be conveyed in trust for the use of the husband and wife, and the issue. From an inspection of the instrument, it appears that the property was conveyed in trust for the separate use of the wife, with a power of appointment after her death ; and if she failed to execute such power, the property to pass to her right heirs.

If this were a proceeding in chancery by the husband, to reform the deed of settlement, so as to give .him the joint use of the property during his life, it would be, to say the least, exceedingly difficult, on this proof, to decree in his favor. It would be entirely consistent with this proof, that the mother of the young lady understood the ante-nuptial agreement to be as set forth in the deed af-terwards executed, and that if she had not so understood it, the marriage would not have taken place. It is not stated that any representations were made at the execution of the deed, of' its contents, or of the terms of the ante-nuptial agreement; and it is not, perhaps, too much to-say, that such supine negligence on the part of the husband, in signing an instrument, the contents of which he did not know, or seek to know, must be considered as equivalent to giving the mother a carte blanche, as to the terms of'the marriage settlement.

This view of the case, is taken to place in a strong point of light, the great injustice which would flow from declaring the deed void in law, — the consequence of which would be, that though the witness admits, that by the ante-nuptial agreement, he was to have only a qualified interest in the property of his wife — that his own neglect, in not inspecting the deed, or enquiring into its contents, previous to its execution, is to be the means of vesting him with the absolute title. We are therefore clear, that both on principle and authority, the facts stated by the witness did not constitute fraud, so as to vacate the deed in a court of law.

Was it error in the court so to instruct the jury % The argument of counsel is,that in so doing, the court usurped the province of the jury.

The trial by jury is the most cherished, if not the most valuable institution, we have derived from our Saxon ancestors; and it is important, therefore, that it should not be impaired. But to render it valuable in practice, it is equally as important that it should be confined within its appropriate limits — the ascertainment of facts — and that the jury be not suffered to do that which they are unfit for — expound the law. In the great majority of cases tried in court, it requires the united agency of the court and jury to attain a result, the facts being controverted between the parties. In such a state of case, the court can only state the law hypothetically, in the event the jury attain a certain conclusion. But it is not only not erroneous, but peculiarly proper, that the court should charge directly upon the facts, and give the law of the case, where the facts are not controverted, instead of putting a hypothetical case, and thereby embarrass the jury, by implying a doubt about that which had not been disputed.

Fraud is a question of law — -though, as has been ob-'' served, from the manner in which cases are usually presented in-court, it must, in general, be left to the jury to determine. But, when the facts are clear and undisputed, the question of fraud, or not, is a pure question of law. Thus, Lord Mansfield, in the case of Bright, ex'or, vs. Eynon, 1 Burrows, 395, says, “ what circumstances and facts amount to such fraud and covin, is always a question of law.” So, in the case of Sturtevant vs. Bullard, 9 Johns, it. 337, the law is thus stated: “ Fraud is a question of law, especially where there is no dispute about facts: it is the judgment of law on facts and intents.”

Those authorities are conclusive to show, that the court did not err in the charge. There was no controversy about facts — the question was as to their legal effect. The deed, on its face, was fair: it was of a class of instruments highly favored in law. It was not pretended that the deed was obtained by duress. The only circumstance by which it could be impugned, was the testimony of Maguire; and it, is inconceivable how the plaintiff in error could be injured by the court assuming that testimony as true, and charging as to its legal effect: if an error at all, if was in his favor, as the jury might have disbelieved Maguire, and then the deed would have stood uncontradicted.

This principle has, in effect, been determined by this court in Pope’s adm’r vs. Robinson, 1 Stewart, 415. It was there held, that it was not error to charge the jury, “that if they believed the evidence offered by the plaintiff, it sustained his declaration.” In that case, the court charged on the legal effect of testimony, if believed by them — in this, on the legal effect of testimony not controverted.

By the deed, the legal title to the property was vested in the defendant in error — all the other parties to the deed took mere equities under it: the action was, therefore, properly brought by her. Nor was it necessary that she should have been required to sue by the cestui que trust, Mrs. Anne Maguire. The clause in the deed which requires the trustee “ to sell or dispose of the property, or the proceeds thereof, as Mrs. Anne Maguire may in writing direct,” does not apply to the pursuit of the property by suit. The law casts upon her, as trustee, the duty of preserving the property, and of course invests her with power to use the means necessary to accomplish the object.

The deed being thus ascertained to be valid, the plaintiff in error, who was a hirer of the slave in controversy, from Maguire, cannot be in any better situation than he is; and unless Maguire had authority from the defendant in error to make such hiring, he-could convey no title. Such authority, it was contended by the court below, was contained in a letter from the defendant in error to Maguire, which was read in evidence; and the court were asked to instruct the jury, “that if they believed the slave had been placed in the possession of Maguire by the 'plaintiff, to be used and hired by him, and that she had hired said slave to the defendant for value, and if the defendant had no notice of the plaintiff’s title, and his time of hiring had not expired when the suit was brought — and if the plaintiff had given her assent to the said hiring, knowing the said slave was so hired, that the plaintiff could not maintain the action. This the court refused — and charged the jury, that if they found from the evidence, that Maguire was the agent of the plaintiff, and had hired the said slave in pursuance of his authority as such, and had acted within the powers given him for that purpose, then it would be binding on the plaintiff — that the jury ought to be satisfied from the evidence, that Maguire was the plaintiff’s agent, and that it did not follow, from the fact of the permission to the parties to bring the negroes to this country — and if it was to be inferred from the letter of the plaintiff in evidence, that the jury would consider from the date of that letter, and its terms, whether it was applicable to this hiring.”

The charge, as ask ed for, must be considered entire; and if any material portion of it was" abstract, or not warranted by the testimony, the court was right in rejecting it altogether. The court are asked to charge the jury, that if the plaintiff had given her assent to the said hiring, knowing the said slave to be so hired, that the action could not be maintained.” Now, there is no evidence warranting this charge. The evidence which appears to have been relied on for that purpose, is a passage in a letter written by the defendant in error, to Maguire, the eighth of April, eighteen hundred and thirty-four — his wife and himself being then resident in Mobile — and urging theca to return to "Virginia to live. It reads thus: “ I am sur.e she (Mrs. Maguire,) would be happier with her relations, and you would be near. You have also property here, and if your negroes are hired out, which I presume they are, as you are not farming, they can return when the time expires for which they are hired.”

It would be doing some violence to the language, to construe this into an assent to any hiring — for she professes ignorance, as to his movements. But, at least, it cannot, by any fair, construction, be considered as an assent to a hiring, made in May, eighteen hundred and thirty-five, of which, it doss not appear, the defendant in error had any knowledge: for this reason, therefore,if for no other, the court were right, in refusing the charge asked for.

The charge, as given, was strictly correct. As Maguire had no title to the property, he could convey no right to it, but as the agent of the defendant in error. There was no proof of agency, further than it might be inferred, from the permission to the young poeple, to bring the negroes with them to Mobile. As it must be presumed, they were sent to assist in supporting the family, such peimission would have, prima fado, authorised a hiring, as one mean of supporting the family, whilst Maguire and his wife -lived together, in Mobile. But this implied agency must certainly cease, with the state of things which created it.

It appears, from the evidence, that Maguire and his wife, returned to Virginia, in November, eighteen hundred and thirty-four. — That a disagreement took place,in February, eighteen hundred and thirty-five, since which time they have not lived together; and that a complete alienation has, since then, taken place.

This total change of the situation of the parties, must be considered as, in law, putting an end to the implied agency, in Maguire, to obtain a fund for the support of the family, by the labor of the slaves. Can it, indeed, be seriously contended, that sending the negroes to Mobile, with the new married couple, in January, eighteen hundred and thirty-four, is evidence of an agency or authority to hire out the negroes, in May, eighteen hundred and thirty-five, after a separation had taken place, and after the defendant in error had urged the return of the parties, with the negroes, to Virginia ?

The refusal of the court, to charge the jury that the recording of the deed, in Alabama, was unauthorised,- and void, was erroneous; but, as has been already shewn, it was an error, which could not by possibility, injure the defendant in error.

This case has been examined elaborately, and at some length — not only because of the importance of the principles involved in it, but also, because it was ably and earnestly argued on'both sides. The result of our examination is, that there is no error in the record — and the judgment must be affirmed.

GOLDTHWAITE, X, not sitting.


text:
    SMOOT vs. FITZHUGH.
    1. The purchaser and hirer of a slave, acquire titles, differing only in degree — and the same general principles govern both.
    2. The purchaser of a slave, stands in no better situation, in regard to the title, than the party from whom he púrchased.
    3. The printed statutes of any of the States of the Union, purporting to have been published by authority of the State; are to be received as evidence of the public acts of such State.
    4. A copy deed, duly certified, is evidence of the contents of the original — and it is no cause of complaint, that the question was submitted to a jury, and not decided by the court,
    5. The law does not require a marriage settlement to be Recorded —and it will not avail a party, who has purchased property of a vendor who had no title, that he had no notice of the deed of settlement. '
    Error to the Circuit court of Mobile.
    Detinue for a slave — tried by Pickens, X Verdict and judgment for plaintiff.

      This case is, in most of its features, the same as the case of Swift vs. Fitzhugh, previously decided — except that in" this case, the slaves sued for were purchased by the plaintiff in error, of John II. Maguire, on the fourteenth of February, eighteen hundred and thirty-four. In this case also, in addition to the evidence produced in the court below, by the defendaut in error, in the case of Swift vs. Fitzhugh, the defendant in error proved by a witness, that he had read the original deed, and that the copy certified from the State of Virginia, was a true copy of the original. The defendant, also, in addition to the copy of the Virginia statute, produced, in the above cited case of Swift vs. Fitzhugh, read the same act, from the Revised Code of the State of Virginia. It was also proved, that the deed of mai riage settlement was not recorded, in Mobile, until the seventeenth of February, eighteen hundred and thirty-four.
    In addition to the charges given by the court in the said case, of Swift vs. Fitzhugh, the court was, in this case, asked to charge the jury, that if they believed the deed of settlement was not duly recorded in Mobile county, until aftér the negroes had been twelve months in the county, and that Smoot had no notice of the deed, when he purchased, he would be entitled to hold the negroes, against the plaintiff, — which charge the court refused to give; but charged the jury, that the statute of this State, (Sec. 4, Aik. Dig. 207,) did not apply to this case. That the defendant, notwithstanding he may have purchased the negroes, without notice, and the deed might not have been recorded in this State, for more than twelve months after the negroes were brought to the State, would not be entitled to hold, against the plaintiff.
    In this case, also, the court did not pass on the correctness of the copy produced in evidence, but referred the decision of that question to the jury.
    Stewart, for plaintiff in error—
    Campbell, contra.
   ORMOND, J.

The principles decided in the case of Swift vs. Fitzhugh, at the present term, are decisive of this case.

The plaintiff in this case, is a purchaser of the slaves in controversy; in that, he was a hirer; but as both are legal titles, differing only in degree, the same principles must govern both. The quantity of the interest cannot enter into the decision of the question. In both cases the parties must derive their title through John H. Ma-guire, and can not be in a better situation than he would be, were he the person asserting title.

The reading to the jury, the act of the Virginia Legislature, from the Revised Code, to the same effect as the duly certified copy of the same act, which was also in evidence, was merely cumulative, as this court, in the case of Cox and Cox vs. Robertson — (2 Stew. & Porter, 91,) determined, “ that the printed statutes of any of the States of the Union, purporting to have been published by authority of the State, (which is the fact in this instance,) are to be received as evidence, here, of the public acts of such State.”

The same remarks apply to the proof, by the witness introduced, that he had compared the copy of the marriage settlement, with the original, and that it was a true copy. The copy certified under the act of congress, with the certificate annexed, was proof of the contents of the original: and the effect of this proof is not impaired by the introduction of other evidence, of the same fact, of equal or inferior grade.

The court would have been authorised to instruct the jury, that the copy, certified as it was, was evidence of the contents of the original, and it certainly was not an error, of which the plaintiff in error can complain, that the fact was lei! for the decision of the jury.

The charge of the court, that the law did not require the marriage settlement to be recorded, is correct, as is shewn in the case of Swift vs. Fitzhugh: nor will it avail the plaintiff in error, that he had no notice of the deed of settlement.

The judgment of the court below is affirmed.

GOLDTHWAITE, J , not sitting.


author: COLLIER, C. J.

text:
    RANDOLPH vs. PARISH.
    1. Where' the drawer of a bill of exchange suffers judgment by default, there is no necessity for submitting the case to a jury to assess damages.

      2. The judgment is an admission, that the steps necessary to fix his liability, have all been taken, and that he is ehargable for the amount of the bill.
    3. The holder of a bill of exchange, drawn and accepted by the same person, may treat the bill as a promissfty note, and thus bring an action on'it.
    4. It is not necessary to constitute a bill, that there be three distinct parties; a party may draw on himself, payable to his own order, and such a paper, when negotiated, will be a bill, in the hands of an indorsee.
    6. Where a party draws a bill on himself, payable at the same place, he is liable for damages, if the bill be dishonored.
    Error to Tuscaloosa Circuit court.
    Assumpsit on a bill of exchange, — tried before Chapman, J.

    The defendant in error declared against the plaintiff, in the Circuit court of Tuscaloosa, as the drawer of a bill of exchange, of which he was also the drawee and acceptor. Judgment final was rendered by default, and the plaintiff having brought the chase here by writ of error, assigned—
    1. That the judgment was rendered without the intervention of a jury to assess the damages.

      2- That the judgment is for the recovery of a sum of money, larger than the record shows the plaintiff to be liable for.

      Porter, for the plaintiff in error.
    Phelan, contra.
    Phelan, for the defendant in error,
    contended that
    1. Our statute manifestly authorised this proceeding— (Aik. Dig. 269, s. 62.)
    2. It was, so far as he was informed, the established practice; and even if we had no statute on the subject, the rule which had been established, and the practice which obtained in the English courts, in similar cases, would justify and sustain the practice here. For the nature and extent of the rule and practice in the King’s Bench and Common Pleas, see Ohitty on Sills, 381 to 384.
    The note of the American Editor, (p. 383,) says this is the settled practice in the courts of the United States, in all cases where the sum is certain, or may be made certain by computation.
    On this subject, see further, 4 Petersdorff, 530, 531, laying down the rule, that after judgment by default in or on a bill in K. B. or C. P., or on a note, the courts would refer it to the master or prothonotary, to ascertain what was due for principal, interest, damages and costs.”
    Upon calculation, the court would find the judgment was for too little, rather than too much.
   COLLIER, C. J.

1. In regard to the first question — in the case of Malone & Co. vs. Hathaway, (3 Stew. R. 29,) it was decided, that where the indorser of a promissory note suffered a judgment by default, there was no' necessity for submitting the case to a jury to assess damages. That the judgment was an admission, that the steps necessary to fix his liability, had all been taken, and that he was chargable for the amount of the note. The practice, as settled by the case cited, is coeval with the statute on which it is founded, and, we think, fully authorised by it.

■ 2. It was competent for the defendant, had he thought proper, to have treated the bill as a promissory note (in legal operation,) against the plaintiff, and thus to have sued it — (Roach vs. Ostler, 1 Man. <fc Ity. 120; Chitty on Bills, 8Amer. (from 8 Eng. Ed.) 28) Yet, he was not obliged thus to consider it; for it has been long settled, that it is not necessary to constitute a bill, that there should be three distinct parties. There are sometimes only two, as, where a party draws on another, payable to his own order, — and it has been said, that a party may draw on himself, payable to his own order, — and such a paper, when negotiated, will be a bill, in the hands of an indorsee — (8 Chitty on Bills, 28 — and cases there cited.) Among commercial men, it is not unusual for them to be concerned in mercantile establishments, at different places, at the same time, and for the house at one place, to draw on the house at the other, and if a bill drawn under such circumstances is dishonored, it never has been questioned but the drawers were liable to damages, and we think cannot be, upon any just principles of reasoning or analogy. . Now, if a drawer is chargable with damages, who draws his bill on himself, payable at some other place than that in which it is negotiated, we cannot conceive why a different rule should be adopted, where it is payable at the same place. In our opinion, the law furnishes no warrant for the distinction: in both instances, the holder of the bill may treat him as a drawer.

We have looked into the judgment, with the view to ascertain whether it exceeds the amount of the bill, damages and interest, and find that it actually falls short of the aggregate of these several items. There is, then, no error in the record — and the judgment is affirmed.


author: GQLDTHWAITE, J.

text:
    LEVERT, et al. vs. REDWOOD.
    1. Where a mortgage is given, to secure the payment of four several promissory notes, and a bill of foreclosure is filed by the mortgagee, which states that the three notes last due remain unpaid, and no mention is further made of the note which arrived first at maturity — Chancery will infer that it was paid before the filing of the bill.
    2. If otherwise, and the note belongs to some other person, than the^complainant, at the time of filing the bill, and such a circumstance is esteemed important to the defendant; it is his duty to present the matter, in his answer; — such an allegation in the complainant’s bill, is wholly unnecessry.
    3. And where one of the notes is not due at the hearing of the case, and the bill is taken pro confesso, Chancery will order so much of the mortgaged premises to be sold, as will be sufficient to pay off the notes that are past due, together with the interest and costs; and the decree will stand as security for payment of the amount not yet due, with leave to the mortgagee, to obtain an order for the sale of the morgaged premises, when the remaining note reaches maturity.
    4. The practice of the court of Chancery in this State, prescribes no particular form of subpoena ad respondendum; it is sufficient, if the party on whom it is served, is informed by it, that a suit is instituted against him, and that a copy of the bill exhibited, is furnished to him at the time of the service.
    5. Where a decree is made, more than thirty days after service of the subpoena, with a copy of the bill, on the defendant; there is no error, so far as reference is had to the time of making the decree. ‘
    6. Courts of Chancery possess the power to examine witnesses, viva voce, for the purpose of proving written instruments, and the Chancellor may state what the evidence of the witnesses so examined, is.
    7." Such written instruments need not be set out in the record and decree in hcec verba.

    8. It seems, that the same degree of proof is not required to support a decree pro confesso, as in other cases.
    9. A reference to the master will not authorise a report by him more extensive than the allegations and proofs warrant; and a report which is erroneous on its face, may be inquired into, without any exception taken.
    10.Where the evidence, which is relied on to support the allegations of a bill, is all written, and a decree can be rendered on its production, without difficulty, — a reference to the master is unnecessary.
    Error to the Circuit court of Mobile, exercising Chancery jurisdiction.
    Bill of foreclosure, tried by Harris, J. ■

    This was a bill in equity, exhibited by Richard H. Redwood, in the Circuit court of Mobile county, against Henry S. Levert, Samuel A. Roberts, John Mayrant, jr. and John W. Freeman. It set forth an indenture of mortgage, executed to secure the payment of certain promissory notes, therein described.

      The mortgage bore date, (as alleged by the bill) the twenty-fifth September, eighteen hundred and thirty-five, and was admitted to record, and duly recorded, in the office of the clerk of the County court of Mobile county, in which county the land is situate. The notes intended to be secured were four in number, all drawn by Levert, payable to his own order, and by him indorsed, negotiable and payable at the Branch of the Bank of the State of Alabama at Mobile, — all bearing even date with the indenture of mortgage — due at the times, and for the amounts which follow :
    The first, due the 18th May, 1836, for $641 08
    Second, “ “ 18th “ 1837, “ 683 95
    Third, “ “ 18th “ 1838, “ 726 83
    Fourth, « “ 18th “ 1839, “ 760 70
    The bill charged a default in the payment of the second note, whereby the mortgage became absolute ; and alleged, that Levert, after the execution of the indenture of mortgage, conveyed the premises covered by it, to Roberts, who afterwards conveyed a part of the same to Mayrant, jr., who afterwards conveyed to Freeman.— The bill prayed that an account might be taken of what was due to the complainant — a decree that it might be paid to him, or the defendants forever barred, and foreclosed of all equity of redemption, — and that a sale of the premises mortgaged, might be made to satisfy the sum ascertained to be due — and concluded with the usual prayer, for general relief.
    The bill was filed on the thirty-first October, eighteen hundred and thirty-seven, and on the same day, a writ of subpoena issued, directed to Levert, Roberts and May-rant, commanding them to appear at the then next term of the Circuit court of Mobile county, and answer a hill of complaint filed against them, by Richard H. Redwood, “a copy of which bill,” the subpoena informed them, “would be furnished by the sheriff.” This subpoena was returned executed, on the first of November, eighteen hundred and thirty-severi, on Levert, by leaving a copy of the bill, as furnished by the clerk, and also a copy of the subpoena: the other defendants not found.
    At the term of the Circuit court, next after the bill was filed, an alias subpoena was ordered against Roberts and Mayrant and Levert, to answer in thirty days, or the bill to be taken pro confesso.

    On the twenty-fifth January, eighteen hundred and thirty-eight, a subpoena was issued, directed to Roberts and Mayrant, containing a similar recital as in the previous subpoena, that the bill was filed by Redwood a gainst them — omitting any mention of Levert or Freeman; but informing them, that a copy of the bill would be furnished by the sheriff. This subpoena was executed on Roberts, the nineteenth of February, eighteen hundred and thirty-eight, and on Mayrant, on the twenty-third of the same month, a copy of the bill and subpoena being left with them.
    On the third day of April, eighteen hundred and thirty-eight, another subpoena was sued out, directed to all the defendants — describing the bill, as exhibited by Redwood against them, and that, on the same day, was served on Freeman, and he furnished with a copy of the bill and subpoena.
    At .the term of the Circuit court, begun to be held on
      thq fourth Monday of April, eighteen hundred and thirty-eight, a decree was rendered, in these words:
    “'Richard H. Redwood, complainant, vs. Henry S. Le-vert, John Mayrant, Samuel A. Roberts, and John W. Freeman, defendants. And now at this day of the said term of the court, appeared the said Richard H. Redwood, complainant, by John H. Jones, his solicitor; and, it appearing to the satisfaction of the court, that the said Henry S. Levert, John Mayrant, jr., Samuel A. Roberts, and John W. Freeman, have been served with subpoenas, issuing out of our court; ■ and, the said defendants having failed to plead, answer or demur, within the time prescribed by law, on motion of complainant, by his solicitor, the said bill of complaint, of the said Richard H. Redwood, and the matters therein stated and alleged, it is ordered, adjudged, and decreed, be taken as confessed. And, thereupon, the said Richard H. Redwood, by his said solicitor, produced in court, the said indenture of mortgage, with the said certificates, in the bill of complaint mentioned; and also, the three last promissory notes, mentioned in the said bill of complaint, to wit:— one note, due the eighteenth May, A. D. one thousand eight hundred and thirty-seven, for six hundred and eighty-three 95-100 dollars; one note, due the eighteenth May, A. D. one thousand eight hundred and thirty-eight, for seven hundred and twenty-six 83-100 dollars; one note, due the eighteenth May, A. D. one thousand eight hundred and thirty-nine, for seven hundred and sixty-nine 70-100 dollars, and proved the execution of said promissory notes, and mortgage, — all of which are da-, ted the twenty-fifth day of September, eighteen hundred and thirty-five. ■ And thereupon, it is ordered, adjudged and decreed, by the court, that the said bill of complaint, indenture of mortgage, and promissory notes, be referred to Malcom J. M’Rae, clerk of this court, and acting as master in Chancery, to take an account of all, what is due to the complainant, for principal and interest, on the said mortgage and promissory notes, and to tax costs of said suit — and to make report thereof, at some convenient day, during the present sitting of this court. And thereupon, on the seventh day of June, A. D. one thousand eight hundred and thirty-eight, being another day of the present sitting of the said court, came the said Malcom J. M’Rae, Esq., acting as master in this court, and made his report — whereby it appears, that the said Henry S. Levert, John May rant, Samuel A. Roberts, and John W. Freeman, are justly indebted to the said Richard H. Redwood, on said indenture of mortgage, and said promissory notes, the sum of two thousand, two hundred and forty-five dollars and sixteen cents, for principal and interest: which said report is hereby accepted, and ordered to be filed and recorded in this court; and to which said report of the said master, reference is hereby made, as forming a part of this decree.
    It is therefore ordered, adjudged, and decreed, that the said Henry S. Levert, John Mayrant, junior, Samuel A. Roberts and John W: Freeman, do pay to the said Richard H. Redwood, said complainant, the said sum of two thousand two hundred and forty-five dollars and sixteen cents, so reported to be due him on the said mortgage and the said notes, on or before the first day of August next; and in case they, the said Henry S. Levert, John Mayrant, junior, Samuel A. Roberts and John W. Freeman, fail to pay the said sum of two thousand two hundred and forty-five dollars and sixteen cents, on said first day of August next, it is ordered, adjudged and decreed, that the said Henry S. Levert, John Mayrant, junior, Samuel A. Roberts and John W. Freeman, and their heirs, he forever debarred and foreclosed of and from all equity of redemption, of, in and to said mortgaged premises described in the said complainant’s bill, and the master aforesaid, and his successors in office, sell all of said lot of land and premises at public auction, for ready money, to the highest bidder, being governed in said sale by the law governing the sheriff of Mobile county in the/sale of lands under execution of fieri facias, at common law. And it is further ordered, adjudged and decreed, that the said master execute to the purchaser of said mortgaged premises, a good and sufficient deed of sale and conveyance, and out of the proceeds of such sale, be it further ordered, that the said master pay said complainant’s solicitor his costs of suit, to be by the master taxed, and the said sum of two thousand two hundred and forty-five dollars and sixteen cents, so reported to be due as aforesaid, and all lawful interest thereon accruing, and the balance shall pay into this court: and further, that the said master report what he shall have done in the premises, to the next term of this court.”
    The defendants named in this decree prosecuted their writ of error to this court, and have assigned for error—
    1. That the two first subpoenas did not identify this cause, and were irregular; that the service thereof was irregular; and that all the subsequent proceedings founded thereon, were erroneous.

      2. That the third subpoena was not served more than thirty days before the term, and therefore the decree pro confesso rendered, was irregular.
    3. The decree pro confesso was irregular, as no sufficient service appeared to warrant such a decree.
    4. The court erred in hearing proof, not taken by deposition, or other proper manner.
    5. The reference to the master was erroneous and un-authorised.
    6. The decree was erroneous, in allowing and conferring the report of the master; in decreeing the sale of the whole of the property, when only a part was due; in requiring a sale absolute, without sufficient opportunity to redeem; in ordering the payment of too much, and before due; in decreeing, when neither the mortgage or notes were made a part of the record, and when it did not appear what had become of the first note mentioned in the bill; in decreeing a sale of the whole, when it did not appear necessary, and was unauthorised ; and in barring all equity of redemption, and foreclosing the parties, as shewn in the record.
    In the course of the argument, it was agreed by counsel, that the record should be considered as amended, so as to shew the decree pro confesso, was made at a day more than thirty days after the service of the subpoena on Freeman.
    Stewart, for the plaintiff in error.

      Campbell, contra.
   GQLDTHWAITE, J.

The several points presented for examination and revision by this case, can be best considered under the following arrangement :

1. The supposed defect in the frame of the bill, in not shewing the payment of the first note, intended to be secured by the mortgage, or otherwise accounting.for it.

2. The irregularities which are supposed to exist in the form of the two first subpoenas, and that which is supposed to arise from the time when the decree was rendered.

3. The supposed error, in permitting the mortgage and notes to be proved viva voce, when the same were referred to the master, and the omission to set them out in hcec verba in the record.

4. The reference to the master, his report, and its effect.

5. The decree.

1. The complainant is the person to whom the mortgage and notes were executed, and does not make title, through any assignment, or claim any less interest, than the whole sum due thereon. The presumptions which arise from the bill, are so far-in his favor as to exclude the idea, that any other person is now the owner of the note,-which came to maturity in May, eighteen hundred and thirty-six. No other inference can justly be drawn from the allegations of the bill, than that this note was paid at the time, or since it became due, and previous to the institution of this suit.

If otherwise, — if this note belonged to another when this bill was filed, and it was important to any of the defendants, that this fact should have been disclosed and made known, — theirs, was the duty to have presented the matter, by answer; and the Circuit court would not then have proceeded with the case, until the owner of it should have been made a party to the suit. It is obvious that many, and perhaps perplexing- questions may arise, when it becomes necessary to ascertain the rights of parties claiming interests as assignees of notes, secured as those appear to have been. In this case, from the absence of all allegation to the contrary, we must presume that the note was paid to'the complainant,' before the institution of this suit. If the complainant had averred this fact in his bill, and it should afterwards be shewn, that the fact was otherwise, it is not perceived how the rights of the true owner of the note can be affected, by' a decree to which he is neither party or privy. The allegation, therefore, would seem to be wholly unnecessary-

2. The two subpoenas first issued, omit the name of Freeman, one of the defendants; but we do not consider this as a matter of any importance whatever. All the subpoenas command the individuals on whom service is made, to appear at the Circuit court, and answer the bill of the complainant; and they are further informed by the subpoena, that a copy of the bill of complaint, will be handed to them by the sheriff. This officer returns, that he has served each of those defendants with the subpoena, and a copy of the bill. We are not authorised to infer, that any other or different bill from the one exhibited, was served: after the service, the act of assembly imposed on the defendants, the duty of answering within a limited period. According to the course of Chancery practice, as it prevailed in England until the year eighteen hundred and twenty-eight, a subpoena could regularly contain only the names of three defendants: since that date, it has been the practice to insert the name of one person only in the subpoena, and it is frequent that no other designation of the plaintiffs is made, if there is more than one, than of A B, and others — (Smith’s Chan. Pr. 110.) It is not known, that the practice in this State has been so settled, as to prescribe any particular form for the subpoena. It is sufficient, in all cases, if the party on whom it is served, is informed by it, that a suit is instituted against him, and that a copy of the bill exhibited, is furnished to him at the time of service.

When the subpoena, accompanied with a copy of the bill, has been served, it then becomes the duty of the defendant “ to file his answer or demurrer, within thirty days after such service, unless within that period, he shall obtain further time from the clerk of the court, pr from a circuit judge, on reasonable cause shown, which further time, shall not extend beyond the first day of the next term, otherwise the bill shall be taken pro confesso, and the complainant, if he deem it necessary, may take an attachment to compel an answer” — (Aik. Dig. 287.)

The same act of assembly, of which a part has just been recited, evidently contemplates that the complainant may, if the court is in session when the thirty days have expired, at once proceed to a final determination of the cause, if the bill remain unanswered, for it provides, “in all cases where the answer is filed ten days before the sitting of the court, or the bill is taken pro confesso, for want of an ans wer, the cause shall be heard and determined at that term, if practicable, unless on good capee shewn, either party continue the same” — (Aiken’s Digest, 288.)

Considering the decree, in this case, to shew that it was made more than thirty days after the service of the subpoena, with a copy of the bill, on the defendant, Freeman, there is no error, so far as reference is had to the time when it was made.

31 In relation to the supposed irregularity, in permitting the mortgage and notes to be proved viva voce, when the same was referred to the master, and the omission to set them out in hcec verba, in the transcript of the record.

That Courts of Chancery possess the power to examine witnesses viva voce at the hearing, even of contested suits, is well established by the many cases in which exhibits have been permitted to be proved in such manner. The rule was formerly limited to the proof of such papers as required-no cross-examination — (Bloxton vs. Drewet, Prec. in Chan. 64; Eade vs. Lingood, 1 Atk. 203; Graves vs. Budgel, 1 Atk. 444; Pomfret vs. Lord Windsor, 2 Vesey, sr. 473; Turner vs. Burleigh, 17 Yesey, 354.) The modern doctrine, however, is, that this rule applies alike to all written instruments: but viva voce examinations are admitted at all times with great caution, and judges have evinced much reluctance to any extension of the practice, as tending to innovate on the established course of proceeding in such courts — (Graves vs. Budgel; Turner vs. Burleigh — ubi sup.) In the American Courts of Chancery, the modern rule seems to have obtained— (Consequa vs. Fanning, 2 John. Ch. R. 481; Emerson vs. Bulkley, 4 Hen. & Mun. 441; Barnes vs. Lee, 1 Bibb, 528; Hughes vs. Phelps, 3 Bibb, 178.)

The competency of a Court of Chancery to administer an oath, was expressly determined in the case of one Aylet, who, having perjured himself in a viva voce examination before the Lord Chancellor, was prosecuted for, and convicted of perjury; and this case being carried to the House of Lords, the objection was unsuccessfully urged, that the Lord Chancellor had no power to administer an oath on such an examination — (Moore vs. Aylet, 2 Dick. 641; 2 Madd. Chan. 434.)

It would indeed be a source of infinite mischief, vexation and delay, if this power did not exist in the Chancery courts, as otherwise, many cases would be dismissed or delayed at the hearing, if it was discovered that the depositions of witnesses had omitted some matter by mistake, inadvertence or otherwise, essential to the prosecution or defence of the suit, and then for the first time discovered, and within the power of the party to supply. It cannot be supposed, that this power would be ever exercised for any other purpose than to advance the purposes of justice, and it may well be doubted, whether its exercise is not at all times a matter within the sound discretion of the chancellor, whenever the parties have proceeded to a hearing, and the evidence is strictly confined to the proof of written instruments, or other documentary evidence.

The power to admit viva voce evidence being shewn, it must follow, as a necessary consequence, that the chancellor must also have that of stating what the evidence is; and it would be wholly unnecessary for him to pursue the precise statements made by the witnesses, as such a course would frequently incumber the record with much immaterial and superfluous matter.

The objection in the present case is, that the mortgage and notes are not set out in ¡uec verba. The chancellor states that the mortgage and notes were produced and proved in open court. It would be a most unreasonable inference to draw from this statement, that they were other or variant from those described in the bill; and even in a contested suit, we should deem this statement sufficient, when referring to the identical papers which were the foundation of a suit.

In relation to the mode of establishing the allegations of a bill, when the same has been taken for confessed, for the want of an answer, — it seems clear, that it was anciently the rule, not to render a final decree, until the defendant had stood out all proceedings for a contempt, and wilfully refused to answer — (Denton vs. Brown, Tothill, 38; Earl of Hertford vs. Gernard, ibid.; Earl of Oxford vs. Gooch, ibid.: Wood vs. Gough, Prec. in Chan, xiv; Aketan vs. Hall, Nels. 1; Nades vs. Battle, 2 Rep. Chan. 283; Anon. 2 Freeman, 127; Davis vs. Davis, 2 Atk. 23; Anon. 2 Freeman, 27; 2 Ch. Cas. 237.) The modern practice is, to render a decree pro confesso, whenever the party is in wilful contempt, without proceeding to the last process of sequestration — (Pendergast vs. Laubergne, 2 Dick. 535; Sturges vs. Brown, 2 Merrivaile, 511; Att’y Gen. vs. Young, 3 Vesey, 209; Japling vs. Stuart, 4 Vesey, 619 ; Moss vs. Brown, 1 Ves. & B. 306; Landon vs. Ready, 1 Sim. & Stu. 44.)

Our statute has, in a great measure, introduced a new practice — and under it, it is wholly unnecessary to proceed against a defendant, who is served with subpoena, and neglects and refuses to answer. If the defendant does not file his answer or demurrer, within thirty days after the service of the subpoena, the bill may be taken for confessed, but “before a decree is pronounced, the court shall be satisfied by sufficient evidence of the justice of the complainants claim or demand” — (Aik. Dig. 288.) This seems to have been intended to abrogate the old rule, which authorised a decree on the allegations of the bill merely, and without any evidence; but the same degree of evidence, or the same manner of proof, is certainly not required, as would be if the case was at issue, for such a construction would leave the complainant without remedy in equity, when the transaction rests solely within the knowledge of the parties to the suit. It never could have been the intention of the general assembly, by this statute, to confer an-advantage on a defendant, who might choose to stand in contempt of the process of the court; and such would be its effect, if the same degree of proof was required to support a decree pro confesso, as in other cases. Such was the view taken of this statute, in the case of Wilkins and Hall vs. Wilkins, 4 Porter, 245 — and we are satisfied that the production of the notes and mortgage was “sufficient evidence of the justice of the complainants claim,” to au-thorise a proper decree, and that it is wholly unnecessary to set them out in hcec verba in the record.

4. The effect of a reference to a master, was very fully considered in the case of Mussina vs. Bartlett & Waring, 8 Porter, 277, — and it was there determined, that his report was final and conclusive of all matters properly submitted to him. No question was made in that case, that the master exceeded his powers, or departed from the allegations of the bill; therefore, the case is not an authority to support the position now assumed by the defendant in error, that this court is not authorised to enquire into the subject matter of this report. The rule .is very clear, that a reference will not authorise a report more extensive than,the allegations and proofs will warrant— (Consequa vs. Fanning, 3 John. Ch. R. 527) — as is also that which declares, that a report, erroneous on its face, may be enquired into without any exception taken— (White vs. Johnson, 2 Mun. 285.) Here, the defendants could not have been permitted to go before the master, or even be heard before him, to make an exception according to the rule as laid down in Mussina vs. Bartlett & Waring, and would be entirely without relief, if they are not permitted to show error on the face of this report. The errors which exist in it are plain and apparent, and will be noticed hereafter. It is sufficient now to dismiss the report, with the remark, that, on the allegations of this bill, a reference was wholly unnecessary, as all the evidence to be applied to the case was written ; on its production, a decree could have been rendered without any difficulty, by the court. A reference to the master, could only have been for the purpose of ascertaining the .interest accrued on the notes due. If any special circumstances had been suggested by the com-plainánt, as requiring a modification of the usual decree, it would then have been proper to have directed a reference, in order to ascertain and state those circumstances; or the order of reference might have directed the master to state the results of his examination, preparatory to a final decree.

5. As to the decree.

This is erroneous in three respects ¡ — First, it confirms the master’s report, which is erroneous, in ascertaining the sum of two thousand two hundred and forty-five dollars and sixteen cents, to be due, when only the sum of six hundred and eighty-three 95-100 dollars, with interest from the eighteenth of May, eighteen hundred and thirty-seven, and the- further sum of seven hundred and twenty-six 83-100 dollars, with interest from the eighteenth of May, eighteen hundred and-thirty-eight, were then due. Secondly — in decreeing a sale of all the property mortgaged, when a sale of a part of it, might produce the sum due. Thirdly — in directing a sale, unless the sum ascertained to be due, by the erroneous report, was paid, when the sale should have been stayed, on the payment of a proper amount, with the costs of the suit.

It has been supposed, that the ordinary course, in all mortgage bills, is, to refer it to the master, to ascertain and report, if a sale of the whole or a part of the premises, will best suit the interests of the parties concerned. We are not aware that such a reference is to be made by the court of its own motion. The court below was not informed by the petition or suggestion of the complainant, that his interest could not be as well protected by a sale of a part, if that would produce the sum due; nor did the defendants, or either of them, answer and suggest, as they might, that they were so situated, with respect to the mortgaged property, as to require it to be sold in separate parcels; or that their interests would be best subserved, by a sale of the whole at one time. As no representations were made by either of the parties, the decree for the sale should have been in the usual form, for a sale of so much as was sufficient to pay the costs, debt due, and interest thereon, and that the decree should stand as a security for the note, to become due; with liberty to the complainant to go before the master, if the same should be in default at maturity, and obtain a report as to the sum due, and payable; to the end, that the Circuit court might thereupon, order a further sale of the residue, to satisfy the said debts and costs, attending the report and sale.

So much of the decree of the Circuit court, as confirms the master’s report, and ascertains the sum of two thousand, two hundred and forty-four dollars and sixteen cents to be due — so much as directs a sale of the whole of the mortgaged premises, and so much as directs a sale to be made, unless the sum so ascertained, is paid — is reversed; and this court, proceeding to render such decree as the Circuit court should have rendered in the premises, doth order, adjudge, and decree as follows: That is to say, unless the said Henry S. Levert, or the said Samuel A. Roberts, John Mayrant, jr. and John W. Freeman, shall pay and satisfy to the said complainant, the sum of six hundred and eighty-three 95-100 dollars, with interest from the eighteenth day of May, eighteen hundred and thirty-seven, and the further sum of seven hundred and twenty-six 83-100 dollars, with interest from the eighteenth day of May, eighteen hundred and thirty-eight, and the costs of. this suit, to be taxed, &c., on or before the first day of April next, then all the said mortgaged premises, in the bill named, or so much thereof, as may be sufficient to pay and satisfy the sums aforesaid, with interest, and the costs of this suit, in the Circuit court, shall be sold, by the master in Chancery, of the proper.court,' under the same notice as, by law, is required to be given’ by the sheriff, of sales of land: and the said master in Chancery is authorised and empowered to make good and sufficient deed or deeds, to convey the said premises, or so much thereof as it shall be necessary to sell, for the porpose aforesaid, to the purchaser or purchasers of the same. And it is further ordered, adjudged, and decreed, that if any part of the said premises, shall remain unsold, it shall be subject to the payment of the sum of seven hundred and sixty 70-100 dollars, due to the said complainant, on the-eighteenth day of May, eighteen hundred and thirty-nine; and if the same, or any part thereof, shall be due and unpaid, on the day last mentioned, the said complainant may go before the master in Chancery aforesaid, and obtain a report of the sum due — and thereupon, the Chancellor of the Southern Division of Alabama, shall award an order of sale for so much, and such part of the residue of the said mortgaged premises, as shall be sufficient to satisfy the sum last aforesaid, and all interest accrued thereon, together with the costs of the report and sale.— And it is further ordered, adjudged and decreed, that, whenever any sale of the said premises, or any part thereof, shall be had under this decree, all the right and title of the said defendants, or either of them, to redeem the said premises, or such part of the same, as shall be sold, shall wholly cease and determine — and they, in and from the same, be forever barred and foreclosed.— And it is further ordered, adjudged and decreed, that the said complainant pay the costs of this court.